Geary and Geary
[2020] FCCA 965
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEARY & GEARY | [2020] FCCA 965 |
| Catchwords: FAMILY LAW – Parenting – final hearing – sole discrete issue – international travel – whether the children be permitted to travel internationally more than once per calendar year – if minimum notice to travel should be provided – whether the children’s names should be removed from the Family Law Watchlist – where order for accompanied international travel is sought. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 64B, 65Y, 117 Convention on the Civil Aspects of International Child Abduction 1980 |
| Cases cited: Kuebler and Kuebler (1978) FLC 90-434 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MS GEARY |
| Respondent: | MR GEARY |
| File Number: | PAC 4654 of 2015 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 7 and 8 November 2019 |
| Date of Last Submission: | 17 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Applicant in person. | |
Counsel for the Respondent: | Mr Levy |
| Solicitors for the Respondent: | Barkus Doolan |
| Counsel for the Independent Children's Lawyer: | Ms Karagiannis |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
THE COURT ORDERS ON A FINAL BASIS THAT:
The Court direct that forthwith the Australian Federal Police, their agents and servants remove X born in 2008 and Y born in 2011 (“the children”) from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
For the purposes of Section 65Y of the Family Law Act 1975 (Cth) (“the Act”), each party be permitted to travel with the children outside of the Commonwealth of Australia for a holiday, conditional upon the following:
(a)the travel dates coincide with that parent's time with the children in accordance with the Orders of this Court, unless otherwise agreed between the parents in writing;
(b)such travel only occur to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction that is in force with Australia;
(c)the parent intending to travel with the children (“the travelling parent”) provides the other parent as much notice as possible of their intention to travel overseas with the children, and in any event, provides not less than eight (8) weeks’ written notice prior to the date of departure, unless otherwise agreed between the parents in writing, and with such notice provide the following details:
(i)written details of the names and places outside of the Commonwealth of Australia where it is proposed the children will be travelling (being countries, cities and towns); and
(ii)written details of the proposed departure and arrival dates to and from each country to which it is intended that travel occur;
(d)not less than four (4) weeks in advance of the proposed travel commencing, the party taking the children outside of the Commonwealth of Australia must provide to the other parent:
(i)a copy of all return airline tickets (which is satisfied by the provision of an online screenshot of any e-ticket) for the children evidencing the children's proposed return to the Commonwealth of Australia together with copies of itineraries; and
(ii)written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight when outside of the Commonwealth of Australia save and except for while the children are in transit.
(e)The travelling parent will immediately notify the other parent if there are any changes to the itinerary and contact details.
The travelling parent ensure that the children wear a functioning device with GPS location tracking at all times they are overseas.
Each parent be and is hereby restrained, when traveling with the children, from leaving the airport in any country, transit country or otherwise, which is not a member of the Hague Convention on the Civil Aspects of International Child Abduction in force between such country and Australia.
Each parent be and is hereby restrained from traveling with the children to any country that is listed as level 3 (‘reconsider your need to travel’) or level 4 (‘do not travel’) on the Australian Governments Smart Traveller's website (“Smart Traveller”).
Should either parent be present with the children in any country where the risk level according to the Smart Traveller website is raised to level 3 or 4 they do all acts and things to depart that country with the children.
In the event the father is the travelling parent, the following conditions apply:
(a)not less than three (3) weeks prior to the proposed date of departure from the Commonwealth of Australia of the children, the father deposit the sum of $50,000 Australian Dollars as a bond (“the bond”) to the ‘Federal Court Litigants’ bank account (BSB number …02 and account number …30) to be held on trust by the Federal Circuit Court Sydney Registry.
(b)The bond paid by the father in accordance with paragraph 7(a) herein be held by the Court until such time as the Court receives written confirmation from the father that the children have returned to the Commonwealth of Australia together with a copy of the children's boarding passes (or electronic copy equivalent) and thereafter the Court, by this Order, release the bond to the father. If the travelling parent does not return to the Commonwealth of Australia within seven (7) days of the scheduled return date, then the Court by this Order release the bond to the mother, except in the case where the Court is informed in writing supported by written documentation (including electronic documentation) that that the delay of the father's return to Australia is due to a matter outside of his control including but not limited to a natural disaster or a cancelled or delayed flight/s; and
(c)unless otherwise agreed to in writing, the father accompany the children on their international travel departing from and returning to the Commonwealth of Australia.
Within seven (7) days from the date of these orders, the mother cause all of the children's passports to be deposited in the Sydney Registry of the Federal Circuit Court of Australia to be held pursuant to these Orders.
The children's passports are to be held by the Sydney Registry of the Federal Circuit Court of Australia at all times except when they are being utilised for travel under these Orders and the Court will release the children's passports to the travelling parent not less than 14 days prior to the proposed departure date.
Within seven (7) days from the date of the travelling parents' return with the children to the Commonwealth of Australia, the travelling parent deposit the children's passports with the Sydney Registry of the Federal Circuit Court of Australia.
The parties do all acts and things and sign all documents to ensure the children's Australian passports are renewed and have at least six (6) months’ validity at all times, with the father to meet the costs solely of all application and renewal of the children's passports. Should the children's passports require renewal or a new application to be lodged then both parents will do all acts and sign all documents necessary to ensure that occurs within seven (7) days of receipt of a written request from the other parent to do so.
In the event that either party refuses or neglects to execute a document necessary to give effect to any or all of these Orders, then a Registrar of the Federal Circuit Court of Australia, Sydney Registry be appointed pursuant to Section 106A of the Act to execute all such documents in the name of the defaulting party.
The appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.These Orders should be read in conjunction with the final orders made on 7 November 2019.
B.International travel is presently impacted by the current COVID-19 Australian Government public health restrictions.
C.In the event that the children are to travel internationally with the father and the mother indicates that she would like to travel (at her own expense) at the same time with the children, the parties are asked to consider the practical benefit of that proposal.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Geary & Geary is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 4654 of 2015
| MS GEARY |
Applicant
And
| MR GEARY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between MS GEARY (“the mother”) and MR GEARY (“the father”).
The relevant children of the relationship are X born in 2008 (“X”) and Y born in 2011 (“Y”), (collectively, “the children”).
This final decision only concerns a discrete issue relevant to international travel, and more particularly whether the children should be permitted to travel internationally with each of the parties (and in particular, the father), and if so, whether any conditions should be attached to that international travel. Details of the precise orders proposed by each party are extracted later in these reasons.
At the final hearing the mother was self-represented, the father was legally represented by Mr Levy of counsel, and Ms Karagiannis appeared for the Independent Children’s Lawyer (“ICL”).
Unless otherwise stated, any statutory references I make in these reasons are to the Family Law Act 1975 (“the Act”).
Background
Relationship history
The father was born in 1963 in City A, Country B and he is currently aged 56. He became an Australian citizen in 1999. The mother was born in Country C in 1973 and she is currently aged 46. She became an Australian citizen in 2013.
The father was previously married and this marriage ended in 2004. There were no children of that marriage.
The mother has a child from a previous relationship, D, who was born in 2005 and is currently aged 14.
The parties met in either June 2007 (according to the mother) or July 2007 (according to the father). Although the parties appear to have had a long-term intimate relationship they did not have a history of cohabitation. As stated, the parties have two children X now aged 11.5 years, and Y, now age 9.5 years.
I note that in the Family Report released 9 March 2018 (discussed later in these reasons), the Family Consultant stated that the father “described the co-parenting relationship as that of a "professional" or "business" one” and that the mother “appeared to see herself as a single parent”. Despite the absence of cohabitation, the mother (and the children) adopted the father’s family name.
While the father gives evidence that he is based in Australia, he is a resident of the E for taxation purposes and acknowledged to the Court that he spends approximately 80 days a year in Australia and approximately 100 days in Country E and the balance of the year in other international locations including Country F and London.[1]
[1] Transcript, 8 November 2019, page 44.
Neither party gives evidence that they have re-partnered.
Procedural history
These proceedings were commenced on 22 September 2015 in the Parramatta registry of the Federal Circuit Court when the mother filed her Initiating Application (which was later amended on 19 May 2016). The father filed his Response on 7 December 2015.
The matter first came before Judge Harman in a duty list on 8 December 2015. On that day he made orders for the matter to be transferred to the Sydney Registry and delivered oral reasons to support the following interim orders:
2. Pursuant to section 61C of the Family Law Act 1975 each parent, Mr Geary and Ms Geary, shall have parental responsibility for the children, X born in 2008 and Y born in 2011 at such times as they are in their respective care.
3. The children, X born in 2008 and Y born in 2011, shall live with their mother Ms Geary.
4. X and Y shall spend time with their father whilst he is resident in Sydney each weekend from 5:30pm Friday evening until 5:30pm Sunday evening together with a block period from 1:00pm 13 December 2015 until 1:00pm 31 December 2015 and such further and/or other periods as are agreed between the parents from time to time.
5. The father shall notify the mother not less than 14 days prior to his arrival in Sydney of his intended arrival and his intention to spend time with the children as above (provided notice for the period commencing 13 December 2015 has already been given).
6. For the purpose of changeover the father shall collect X and Y from the mother’s home at the commencement and conclusion of each period of time and return them to that address.
7. Each parent shall do all acts and things necessary to allow the children to communicate with the other via telephone, Facetime, Skype or similar electronic means not less than once per week.
8. Each parent shall forthwith and if they have not already done so do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable each parent to be recorded as both a parent and emergency contact person with the children’s schools and preschools and so as to enable each parent to obtain directly from those services such reports, photographs or other information as they may desire.
9. Each party shall forthwith and contemporaneous with the event, advise the other of any significant illness, specialist medical appointment or hospitalisation relevant to X and Y and shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and permit each parent to be fully advised and consulted with respect to any treatment provided to X and Y and to visit them if hospitalised.
10. Pending further Order, the Applicant Ms Geary born in 1973 and the Respondent Mr Geary born in 1963, by themselves, their servants or their agents are restrained from removing or attempting to remove the children, X born in 2008 (male) and Y born in 2011 (male) from the Commonwealth of Australia.
11. The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.
12. Pending further Order, the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
13. The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
14. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.
15. Pending further Order, neither party shall, save with the written consent of the other party, seek to change the children’s present school or preschool attendance by the children or either of them.
16. IT IS NOTED that the above Orders are made on a summary basis and without prejudice to such further interim relief as either party may seek on subsequent occasions and further the restraint with respect to any change to the children’s school/preschool is prefaced upon the father’s undertaking he will meet all fees.
The matter was listed before me on 26 May 2016 in a duty list. I made orders for the parties to attend a Child Dispute Conference and directed the mother to file an Application in a Case in the event she sought to change the children’s current schools.
The parties duly attended the Child Dispute Conference on 10 August 2016 and the matter returned for directions on 25 August 2016. On this day I made orders for the appointment of an Independent Children’s Lawyer and interim orders by consent in respect of changeover and child support. Further I dismissed the mother’s Application in a Case filed on 22 June 2016, making the following notation:
B. The child X has been enrolled in G School and the father raises no further issue provided that the mother does not propose to change either of the children’s schools again, noting that paragraph 15 of the Orders made 6 December 2015 prevents any further change to the children’s schools. The Court further notes that the father may be seeking that the children attend private schools upon commencing high school.
The matter returned for further directions on 16 February 2017 and I made orders seeking the preparation of a family report.
The Family Report from Family Consultant Ms H was released by me on 9 March 2018.
The matter returned before me for directions on 18 May 2018 and on that occasion the matter was given a further short adjournment to ascertain on the next occasion whether the father would consent to an order (as proposed by the mother) to advise the mother of the address of where the child will be staying overnight when spending time with him. The legal representative for the father had no instructions from the father on this day.
During the adjourned period the mother filed a further Application in a Case on 12 September 2018 seeking changes to the interim orders made by Judge Harman on 8 December 2015.
The matter returned on 17 September 2018 and the parties were able to consent to orders for the children to spend additional time with the father in January 2019 and orders for changeover. The matter was thereafter adjourned to a callover date to consider a listing for final hearing.
The matter came before me for callover on 8 November 2018 and, having been advised by the parties as to the scope of the dispute, I agreed to list the matter for a two day final on 7 and 8 November 2019. The scope of the issues at that time were limited to a dispute in respect of schooling, overseas travel and potentially spend time agreements particularly during school holidays.
As stated, the final hearing proceeded on 7 November 2019. The parties were able to agree to final orders in relation to all other areas other than international travel. Those final orders were made as follows:
THE COURT NOTES:
A. The following definitions for the purpose of these Orders:
“children” means X, born in 2008 and Y, born in 2011;
“father” means Mr Geary;
“mother” means Ms Geary;
“parties” or "parents" means the mother and the father collectively;
"party" means the mother or the father;
for the purposes of these Orders, "school holidays" are to commence at the conclusion of school on the last day of mandatory pupil attendance for the school that X attends and to conclude at the commencement of school on the first day of mandatory pupil attendance of the next school term or 9:00am for the school that X attends until such time that X concludes his schooling, then at that point, these times will be referrable to the school that Y attends.
The half way point in each school holidays is 5.30pm on the middle day and where there are two middle days then the first of the two days.
The parties agree that they can each travel within Australia, including to places outside of New South Wales, with the Children.
The Father agrees that he will pay all expenses associated with and incidental to the Child/ren’s attendance at J School or any other school attended by the Child/ren.
THE COURT ORDERS BY CONSENT AND ON A FINAL BASIS:
1. That all previous parenting orders herein be and are hereby discharged.
Parental responsibility
2. The Mother and Father will have equal shared parental responsibility for the children X born in 2008 and Y born in 2011 (‘the Children’).
3. The Mother will have responsibility for making decisions for the day to day care of the Children when they are living with her.
4. The Father will have responsibility for making decisions for the day to day care of the Children when they are spending time with him in accordance with these Orders.
Live with
5. The Children are to live with the Mother.
Spend time with
6. The Father will spend time with the Children at all times by agreement with the Mother and in the absence of agreement, as follows:
During New South Wales school terms
a. If the Father is present in Sydney for less than four (4) consecutive weeks, each weekend from 5.30pm on Friday until 5.30pm on Sunday.
b. If the Father is present in Sydney for more than four (4) consecutive weeks:
i. For the first four (4) weeks, each weekend from 5.30pm on Friday until 5.30pm on Sunday.
ii. Thereafter, every second weekend from 5.30pm on Friday until 5.30pm on Sunday.
During New South Wales school holiday periods
c. For half of the Term 1, Term 2 and Term 3 school holiday periods with the Mother to provide the Father with at least six (6) months’ written notice in relation to which half of each holiday period she will be spending with the Children.
d. For a block period of up to fourteen (14) consecutive days in the school holidays commencing at the end of Term 4 in each calendar year as follows:
i. From 21 December for fourteen (14) days in the 2019/2020 Term 4 holidays and each alternate Term 4 holidays thereafter.
ii. From 8 January for fourteen (14) days in the 2020/2021 Term 4 holidays and each alternate Term 4 holidays thereafter.
Special occasions
7. Providing they do not fall within the Father’s school holiday time pursuant to Order 6 herein, the Children will spend time with the Mother on special occasions, as follows:
a. From 9.00am until 5.30pm on Mother’s Day.
b. From 5.30pm on 6 January until 9.00am on 8 January for Country K Orthodox Christmas.
c. From 8.00am until 5.30pm on Country K Orthodox Easter Sunday.
d. From 9.00am until 5.30pm on the Mother’s birthday.
e. On each child’s birthday for a period of not less than three (3) hours by agreement with the Father.
8. Providing they do not fall within the Mother’s school holiday time pursuant to Order 6, the Children will spend time with the Father on special occasions, as follows:
a. From 5.30pm on the day of Country B New Year’s Eve until 5.30pm on the day following Country B New Year’s Day.
b. From 9.00am until 5.30pm on the Father’s birthday.
Notice of the father’s intention to exercise his time with the children
9. To give effect to Orders 6 and 8 herein, the Father will notify the Mother in writing no less than:
a. Fourteen (14) days in advance in the event he will be exercising his time with the Children pursuant to Order 6a and 6b and / or Order.
b. Twenty-eight (28) days in advance in the event he will be exercising his time with the Children pursuant to Order 6c and 6d.
10. For the purposes of providing notice to the mother, such notice is to be provided by:
a. An SMS text message to the mother's mobile telephone; or
b. Such other message to the mother through electronic communication as available to both parties and utilised by both parents; or
c. Email to the mother.
Changeover
11. Unless otherwise specified in these orders, changeovers are to occur at 5.30pm on the first and last day the Father is to spend time with the Children.
12. Unless otherwise agreed between the Mother and Father in writing, changeover of the Children pursuant to these Orders will occur as follows:
a. When the Children are to come into the Father’s care, then changeover is to occur at L Street, Suburb M.
b. When the Children are to come into the Mother’s care, then changeover is to occur outside of the Supermarket located in Suburb N Shopping Centre.
Communication
13. The Mother and Father will each do all acts and things to facilitate the Children communicating with the other parent when they are living with them via telephone, Facetime, Skype or such other electronic communication device at all reasonable times and not less than once in each week.
Information sharing and communication between the parties
14. The Mother and Father will keep one another informed of:
a. Any medical problems or illnesses suffered by the Child/ren while in their care.
b. Any medication that has been prescribed for the Child/ren while in their care.
c. Any social, school or religious functions which the Child/ren is to attend.
d. Their residential address and the particulars of any other person who may reside with the Child/ren while the Child/ren are in their care.
e. Any other matter relevant to the Child/ren’s welfare.
15. The Mother and Father will keep one another advised of their contact telephone numbers and residential addresses and will advise each other within 24 hours of any change to such details.
16. For the purposes of communicating information between the parties the Mother and Father will:
a. Communicate by telephone matters of an urgent nature and otherwise
b. Communicate by email about day to day matters including arrangements for each party to spend time with the Children.
Education and extra-curricular activities
17. The Children will attend high school at J School and the Mother and Father will do all acts and things and sign all documents to facilitate their enrolment there within seven (7) days.
18. In the event that J School does not accept for enrolment, one or both of the Children, then the Mother will nominate three (3) alternate schools and the Father will decide from that list, which school the Child/ren will attend instead.
19. The Mother and Father are hereby authorised and will remain authorised to obtain directly from any school attended by the Child/ren, at their own expense, documents and information ordinarily made available to parents including, but not limited to, copies of all reports, photographs, counsellor’s notes, memos, newsletters, invitations and notices.
20. The Mother and Father are each entitled to attend school or extra-curricular functions, sporting events, parent/teacher nights or meetings involving the Child/ren and any other activities to which parents are invited.
Medical and health related matters
21. The Mother and Father will notify each other forthwith of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the Child/ren while the Child/ren are in their care.
22. The Mother and Father are each at liberty to, at their own expense:
a. Speak with any medical or allied health professionals treating or providing services to Child/ren; and
b. Obtain information and documents from any medical or allied health professional treating or providing services to the Child/ren.
Restraints
23. Each party be and is hereby restrained by injunction from making critical or derogatory remarks in relation to the other parent or the other parent’s extended family in the presence of or hearing of the Children and or allowing any other third party to do so.
24. Each party be and is hereby restrained by injunction from discussing these proceedings in the presence or hearing of the Children.
25. Each party be and is hereby restrained by injunction from showing to the Children or discussing with them:
a. A copy of any document filed in the proceedings including, but not limited to, any Application, Response or Affidavit filed by or on behalf of any party;
b. Any document including any Memorandum or Family Report prepared by a Family Consultant or Court Expert; or
c. A copy of the Court’s Reasons for Decision.
26. The Mother be and is hereby restrained from relocating the main residence of the Children from the Sydney metropolitan area without the Father’s prior written consent.
27. The Mother be and is hereby restrained from changing the Children’s names without the Father’s prior written consent.
Costs for the Independent Children’s Lawyer
28. Within twenty-one (21) days from the date of these Orders or, in a timeframe deemed appropriate by Legal Aid NSW, the Father shall pay to Legal Aid NSW the sum of $3,402.40 being payment of the fees for the Independent Children’s Lawyer unless his liability to contribute towards these costs is waived by Legal Aid NSW.
THE COURT FURTHER ORDERS THAT:
29. By no later than 4pm on 5 December 2020 (“the due date”) the mother cause an email to be sent to the father (with chambers to be included in the email) to indicate whether she will press her child support application and in the event no such email is received by the due date, the Court will assume her intention is to withdraw the matter.
30. All extant applications be adjourned to 8 November 2019 at 9.30am.
AND THE COURT FURTHER NOTES THAT:
D. Paragraphs 1 to 28 and Notations A to C herein, reflect a signed Minute of Consent Orders, the original of which has been placed in the Court file.
E. While the Independent Children’s Lawyer sought costs in the sum of $3 402.10 from the mother in paragraph 29 of her minute, the Court was advised that the mother had previously been represented under a grant of legal aid and pursuant to s117(4) of the Family Law Act (Cth) the Court is unable to make that order.
F. The outstanding discrete issue for the Court’s determination in this matter relates to whether the children should be permitted to travel internationally with the parties and, if so, the relevant conditions which the Court may impose to facilitate travel.
G. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
The final hearing on the discrete travel issue commenced on 8 November 2019. I made the following additional orders and thereafter reserved my decision.
THE COURT DECLARES THAT:
I. The children X born in 2008 and Y born in 2011 (‘the Children’) are habitual residents of the Commonwealth of Australia.
THE COURT ORDERS THAT:
1. Judgment in this matter be reserved to a date to be fixed.
2. Parties have leave to approach Chambers with a minute of Consent Orders and appropriate cover letter to be considered by the Court in the event that they have reached an agreement as to the outstanding issue in dispute.
3. By no later than 4pm on 15 November 2019 the father cause the electronic copy of his amended minute of order to the sent to the Court.
AND THE COURT NOTES THAT:
A. The outstanding discrete issue for the Court’s determination in this matter relates to whether the children should be permitted to travel internationally with the parties and, if so, the relevant conditions which the Court may impose to facilitate travel.
B. Declaration I and paragraphs 2 and 3 herein have been amended pursuant to rule 16.05(2)(g) of the Federal Circuit Court Rules 2001.[2]
[2] These Orders were amended pursuant to rule 16.05(2)(g) of the Federal Circuit Court Rules 2001 on 27 April 2020.
Agreed outcomes
In addition to the final orders made by consent referred to above, by the conclusion of the final hearing it appeared that there was a consensus between the parties as to the following outcomes relevant to the international travel dispute:
·Firstly, any authorised travel will only be to countries where the relevant Hague Convention[3] is in force between that country and Australia.
·Secondly, any authorised travel will only be to places as recommended by the Australian Government in the Smart Traveller website being level 1 (“exercise normal safety precautions) and level 2 (“exercise a high degree of caution”). In other words, the parties will not take the children to places that fall within level 3 (“reconsider your need to travel”) or level 4 being (“do not travel”).
·Thirdly, subject to the Court determining the frequency of any authorised international travel, such travel should only take place during the children’s school holiday periods.
·Fourthly, the Court should hold the children’s passports at all times when they are not being used for travel.
·Fifthly, subject to certain determinations by the Court, that there be a requirement on the travelling parent to provide written notice of any intended international travel not less than the period prescribed by the final orders, and to and provide all relevant details of that travel including notification of any changes.
·Sixthly, that the father lodge with the Court a security deposit of $50,000 on each occasion of authorised international travel.
·Seventhly, the children having a device with GPS location tracking on all times they are overseas.
·Eighthly, that the mother and father ensure that the children’s Australian passports are renewed with the father to meet the costs of the application.
Proposals
[3] Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”).
Mother
While the mother seeks the retention of the Family Law Watchlist subject to authenticated consent, she also seeks an outcome where the child can immediately commence travelling internationally once a year (for no longer than 30 days) provided she accompanies them at all times to and from the relevant country. Furthermore, as part of her revised proposal, the mother indicated that she would pay her own economy air fares for the relevant trip and would seek that the father be responsible for the cost of the children’s return airfares.
In respect of written notice to travel, the mother proposes not less than 9 months to notify the other parent and not less than 6 months to provide the other parent with the relevant travel itinerary and copies of airline tickets.
The mother initially proposed a final minute of orders that were received by Chambers on 31 October 2019, however this minute did not address specific international travel orders. Following the discrete final hearing, the mother forwarded her proposed minute of orders in respect of international travel.[4] Those orders were as follows:
[4] Minute of Orders in respect of International Travel received on 17 November 2019.
Overseas travel
1. That for the purposes of Section 65Y of the Family Law Act 1975 (Cth), the mother and the father are permitted to travel outside of the Commonwealth of Australia for a holiday provided that:
1.1 the parties provided authenticated consent pursuant to s 65Y(1)(c)(i) for the children to travel outside of the Commonwealth of Australia for a specified period of time;
1.2 the travel dates coincide with that parent's time during the NSW public school holidays with the children in accordance with these Orders, unless otherwise agreed between the parents in writing;
1.3 such travel only occur to a country that is a member state of the Convention.
1.4 the parent intending to travel with the children provides the other parent as much notice as possible of their intention to travel overseas with the children, and in any event, provides not less than 9 months written notice prior to the date of departure, unless otherwise agreed between the parents in writing, and with such notice provide the following details:
1.4.1 written details of the names and places outside of the Commonwealth of Australia where it is proposed the children will be travelling (being countries, cities and towns); and
1.4.2 written details of the proposed departure and arrival dates to and from each country to which it is intended that travel occur;
1.5 the parents seek medical advice in relation to immunization of the children prior visiting the countries listed in the Order 1.4.1.
1.6 not less than 6 months in advance of the proposed travel commencing, the party taking the children or sending the children outside of the Commonwealth of Australia must provide to the other party:
1.6.1 a photocopy of all return airline and/or shipping tickets (which is satisfied by the provision of an online screenshot of any e-ticket) for the children evidencing the children's proposed return to the Commonwealth of Australia together with copies of all written itineraries if available; and
1.6.2 written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight when outside of the Commonwealth of Australia except for while the children are in transit;
1.7 That the mother is to accompany the children on all flights departing from and returning to The Commonwealth of Australia at her own cost including the following:
1.7.1 the mother is to hold the passports of the children during the period of such travel; and
1.7.2 the mother is to follow the children’s itinerary when they are traveling with the father being the countries listed in the parties’ written consent.
1.8 That the children are permitted to travel outside of the Commonwealth of Australia for no more than 30 days in one calendar year.
1.9 That the travelling parent will facilitate the other parent having reasonable telephone/Skype communication while they are away.
1.10 That the travelling parent ensure that the children have a device with GPS location tracking on it at all times they are overseas and ensure that that device is kept charged during any period of travel.
1.11 That each parent be and is hereby restrained, when traveling with the children, from leaving the airport in any country that is not a member of the Hague Convention on the Civil Aspects of International Child Abduction which is in force with Australia.
1.12 That each parent be and is hereby restrained from traveling with the children to any country that is listed as a level 3 (reconsider your need to travel) or level 4 (do not travel) on the Australian governments smart traveller's website.
1.13 Should either parent be present in any country where the risk level according the Australian governments smart traveller's website is raised to level 3 or 4 they will as soon as possible depart that country with the children.
2. That within 60 days the mother and the father cause the Australian passports of the children's passports to be renewed and subsequently deposited in the Sydney Registry of the Federal Circuit Court of Australia to be held pursuant to these Orders.
3. That the children's passports are to be held by the Sydney Registry of the Federal Circuit Court of Australia at all times except when they are being utilised for travel under these Orders and the Court will release the children's passports to the mother not less than 14 days prior to the proposed departure date.
4. That within 7 days from the date of the mother’s return with the children to the Commonwealth of Australia the mother deposit the children's passports with the Sydney Registry of the Federal Circuit Court of Australia.
5. That the mother and father will do all acts and things and sign all documents to ensure the children's Australian passports are renewed and have at least six months validity at all times and the father will meet the costs solely of all application and renewal of the children's passports. Should the children's passports require renewal or a new application to be lodged then both parents will do all acts and sign all documents necessary to ensure that occurs within 7 days of receipt of a request from the other parent to do so.
6. That the Court direct that forthwith the Australian Federal Police, their agents and servants remove the children’s names from the Airport Watch List for the duration of the travel providing that the parties served an authenticated written consent and a photocopy of the itinerary to the Sydney Registry of the Federal Circuit Court of Australia.
7. That at all other times the Australian Federal Police maintain an airport watch list of the children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
8. That in the event that either party refuses or neglects to execute a document necessary to give effect to any or all of these Orders, then a Registrar of the Federal Circuit Court of Australia, Sydney Registry be appointed pursuant to Section 106A of the Act to execute all such documents in the name of the defaulting party.
Father
The father proposes that the children’s names be removed from the Family Law Watchlist and that the children be permitted to travel outside the Commonwealth of Australia provided that the dates coincide with the relevant parent’s time (unless otherwise agreed). The father seeks there be no restraint on the children travelling more than once a year.
In respect of written notice to travel the father proposes a time frame of not less than 6 weeks to notify the other parent and not less than 3 weeks to provide the other parent with the relevant travel itinerary and copies of airline tickets.
The father opposes any requirement that would require the mother to co-travel with the children on international flights while spending time with the father.
An amended minute of order was provided to Chambers on 13 November 2020 incorporating the father’s concessions given in the witnesses box during the final hearing. The proposed amended minute of order was as follows:
Overseas travel
1. That for the purposes of Section 65Y of the Family Law Act 1975 (Cth), the mother and the father are permitted to travel outside of the Commonwealth of Australia for a holiday provided that:
1.1 the travel dates coincide with that parent's time with the children in accordance with these Orders, unless otherwise agreed between the parents in writing;
1.2 such travel only occur to a country that is a member state where the Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia.
1.3 the parent intending to travel with the children provides the other parent as much notice as possible of their intention to travel overseas with the children, and in any event, provides not less than 6 weeks written notice prior to the date of departure, unless otherwise agreed between the parents in writing, and with such notice provide the following details:
1.3.1 written details of the names and places outside of the Commonwealth of Australia where it is proposed the children will be travelling (being countries, cities and towns); and
1.3.2 written details of the proposed departure and arrival dates to and from each country to which it is intended that travel occur;
1.4 not less than 3 weeks in advance of the proposed travel commencing, the party taking the children or sending the children outside of the Commonwealth of Australia must provide to the other party:
1.4.1 a photocopy of all return airline and/or shipping tickets (which is satisfied by the provision of an online screenshot of any e-ticket) for the children evidencing the children's proposed return to the Commonwealth of Australia together with copies of all written itineraries if available; and
1.4.2 written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight when outside of the Commonwealth of Australia save and except for while the children are in transit;
1.5 That should the father be the travelling parent then not less than 3 weeks prior to the proposed date of departure from the Commonwealth of Australia of the children, he will deposit the sum of $50,000 Australian Dollars as a bond “the bond” into the Sydney Registry of the Federal Circuit Court of Australia.
1.6 That the bond paid by the father in accordance with Order 1.5 be held by Court until such time as the Court receives written confirmation from the father that the children have returned to the Commonwealth of Australia together with a copy of the children's boarding pass (or electronic copy equivalent) and thereafter the Court by this Order release the bond to the father. If the travelling parent does not return to the Commonwealth of Australia within 7 days of the scheduled return date, then the Court by this Order release the bond to the mother, except in the case, where the Court is informed in writing supported by written documentation (including electronic documentation) that that the delay of the father's return to Australia is due to a matter outside of his control including but not limited to a natural disaster or a cancelled or delayed flight/s.
1.7 The travelling parent will immediately notify the other parent if there are any changes to the itinerary and contact details.
1.8 That the travelling parent ensure that the children have a device with GPS location tracking on it at all times they are overseas and ensure that that device is kept charged during any period of travel.
1.9 That each parent be and is hereby restrained, when traveling with the children, from leaving the airport in any country that is not a member of the Hague Convention on the Civil Aspects of International Child Abduction which is in force with Australia.
1.10 That each parent be and is hereby restrained from traveling with the children to any country that is listed as a level 3 (reconsider your need to travel) or level 4 (do not travel) on the Australian governments smart traveller's website.
1.11 Should either parent be present in any country where the risk level according the Australian governments smart traveller's website is raised to level 3 or 4 they will as soon as possible depart that country with the children.
2. That within 7 days the mother cause all of the children's passports to be deposited in the Sydney Registry of the Federal Circuit Court of Australia to be held pursuant to these Orders.
3. The children's passports are to be held by the Sydney registry of the Federal Circuit Court of Australia at all times except when they are being utilised for travel under these Orders and the Court will release the Children's passports to the travelling parent not less than 14 days prior to the proposed departure date.
4. Within 7 days from the date of the travelling parents' return with the Children to the Commonwealth of Australia the travelling parent deposit the children's passports with the Sydney Registry of the Federal Circuit Court of Australia.
5. The mother and father will do all acts and things and sign all documents to ensure the children's Australian passports are renewed and have at least six months validity at all times and the father will meet the costs solely of all application and renewal of the children's passports. Should the children's passports require renewal or a new application to be lodged then both parents will do all acts and sign all documents necessary to ensure that occurs within 7 days of receipt of a request from the other parent to do so.
6. That the Court direct that forthwith the Australian Federal Police, their agents and servants remove the children’s names from the Airport Watch List.
7. That in the event that either party refuses or neglects to execute a document necessary to give effect to any or all of these Orders, then a Registrar of the Federal Circuit Court of Australia, Sydney Registry be appointed pursuant to Section 106A of the Act to execute all such documents in the name of the defaulting party.
I note that on the question of whether such international travel would occur for more than two weeks in any school holiday period the father clarified his position during the course of the hearing stating the following in answers to questions from the Court.
HIS HONOUR: I understand the example. But if I’m hearing you correctly – and if I haven’t heard you correctly, please – you would agree to outcome that would make sure that any approved travel occurred, unless the two of you agreed otherwise in writing, would occur during the school holiday period?
MR GEARY: ‑‑‑Yes, your Honour.
HIS HONOUR: So effectively, the children have only got about two weeks in school term holidays. It would be for no more than those two weeks?
MR GEARY:‑‑‑Absolutely, your Honour.[5]
[5] Transcript, 8 November 2019, page 50.
ICL
I note that the ICL sought to be discharged at the conclusion of day one of the final hearing. The Court however saw the benefit of the ICL appearing on the second day to assist and formulate a view on the discrete travel issue. When Court resumed on the second day, the ICL initially was unable to formulate a view on the discrete travel issue. However, upon hearing the submissions of Mr Levy, counsel for the father and the mother’s submissions, the ICL was able to submit that in respect of the mother’s proposal of accompanied travel it “would [not] be workable or viable,”[6] and in the event the Court was minded to make such an order, to limit the accompaniment to the first trip only.
[6] Transcript, 8 November 2019, page 53.
The ICL also sought that international travel be for a shorter period than four weeks in consideration of the passage of time between the last international trip the children undertook with their father.
The ICL further sought an order that the father be primarily available to spend time with the children during the times the children are overseas on holidays with him in an effort to prevent the father from having to travel for work purposes during such time.
I note the ICL also consented to the parties’ proposal surrounding when travel would occur with certain restraints agreed upon. The ICL conceded that given the number of pre-conditions the parties consented to, there was ultimately no need for the children’s names to remain on the Family Law Watchlist.
As stated, the father opposed any proposal requiring co-travel accompaniment by the parties or the mother otherwise accompanying the children on flights while spending time with the father.
Issues
As stated, the discrete issue for the Court to determine relates to whether there ought to be additional pre-conditions implemented on international travel by the children with either party. More specifically, the following questions require determination:
·Subject to consent, whether the current international travel restraint (and the Family Law Watchlist) should remain;
·Whether any international travel by the children with the father should be restricted to one period each year;
·What period of notice should be given by the travelling parent to the non-traveling parent prior to any international travel with the children; and
·Whether the mother should be permitted to accompany the children on the relevant airline flights for their overseas journeys with the father, or not.
Evidence
Mother
The mother relied on the following documents relevant to the discrete travel hearing:
·Her affidavit sworn on 4 September 2019 and filed on 12 September 2019; and
·Her affidavit sworn and filed on 4 September 2019.
The mother tendered the following document:
·Email correspondence dated 14 May 2015 (Exhibit “A1”).
The mother was well spoken and was generally able to agree to reasonable propositions.
Father
The father relied on the following document relevant to the discrete travel hearing:
·His affidavit affirmed and filed on 1 November 2019.
The father tendered the following documents:
·A copy of photograph of the father and the child X in Country B dated 2012 (Exhibit “RF1”); and
·A copy of a photograph of the father and the child X in Country P theme park dated 2014 (Exhibit “RF2”).
The father was well spoken and was able to agree to reasonable propositions.
Family Report
As stated above, Ms H, a Family Consultant of this Court, prepared a Family Report in this matter that was released on 9 March 2018 (“the Family Report”) (see Exhibit “A”).
The interviews for the Report were conducted on 31 January 2018.
Ms H outlines the relevant the current parenting arrangements, the relevant family background, the history of the dispute, proposals, risk factors, general issues and issues in dispute in paragraphs 1 to 18. Ms H then goes on to outline her interview with the parties in paragraphs 19 to 30.
Details of Ms H’s interviews with, and observations of, the children appear in paragraphs 31 to 40.
Ms H thereafter provides the following evaluation in paragraphs 41 to 46. In relation to the issue of international travel Ms H stated the following in paragraph 45 of the Report:
45. About Ms Geary’s concerns regarding overseas travel and the possibility that the children will not be returned to Australia by Mr Geary, it is difficult to make any kind of prediction about this. It would appear that Mr Geary has no plans to reside permanently in Country B in the near future. If the Court finds that there is no risk of overseas abduction of the children, it would certainly be beneficial to them to experience world travel and other cultures. Y, in particular, expressed a strong interest in the paternal side of his culture. Experiencing their Country B culture would be important for X and Y in their formation of a personal and cultural identity.
Unfortunately, Ms H was unable to provide any recommendations relevant to the discreet dispute and she stated at paragraph 48 of the Report that she was “unable to recommend whether or not the children should remain on the watch list as such a recommendation is outside the scope of this assessment”.
I note that the family consultant was not required for cross-examination.
Submissions
Mr Levy of counsel for the father, the mother in person and Ms Karagiannis for the ICL presented oral submissions at the final hearing of the discrete issue heard on 8 November 2019. In addition, the parties and the ICL provided the Court with case outline documents.
I will refer to the submissions made by the parties (where relevant) in the reasons that follow.
Law and Discussion
Overview
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act, and deal with issues relevant to this dispute, including issues relevant to the time and circumstances that a child spends with one of his or her parents. Parenting orders also deal with the allocation of parental responsibility.
Section 60CA of the Act provides as follows:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CA through section 60CC deals with how the Court determines the best interests of children. This is sometimes referred to as the ‘legislative pathway’. The most relevant to this discrete issue would be the primary considerations in section 60CC(2), and the additional considerations in section 60CC(3), where relevant.
Primary Considerations: Section 60CC(2)
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. The Full Court considered this provision and concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the child’s best interests) how and what orders can be framed in order to ensure that a child has a meaningful relationship with both of his or her parents, and by implication extended family.
That said, the Court must also consider section 60CC(2)(b) of the Act – the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Mother’s submissions
As stated, the mother opposes the father’s application for the removal of the airport watch list and for the children to travel unaccompanied. She also proposes that travel outside Australia only occur once per calendar year. The mother made the following oral submissions in Court:
So it is really important to note that when the court consider making restraining orders, it should have regard to the applicant’s relationship with the child and likely impact on relationship if the child is removed from Australia. So, in my respectful submissions, I argue that the mother has been always the primary carer for the children, that the children have been primarily living with the mother since – and with their brother, D, since their birth and that the children have not experienced long separation from the mother, and apart from one instance where the father travelled from Country B to Australia, the children have never been on long flights with the father alone. So I submit that that would be very reasonable if the court makes an order that the mother is to accompany the children when they go overseas on the holidays.[7]
[7] Transcript, 8 November 2019, page 61.
In reference to the proposal for the airport watch list order to remain subject to ‘authenticated consent’, the mother made the following submission:
I would submit that there is no concern that, if we agree to travel together to destinations or – being Hague Convention countries, there will be any issues of parents making such an agreement. And in relation to the mother – to myself seeking orders for the children to remain on the airport watchlist and for – consensual agreement of both parents to lift them from airport watchlist for a certain period of time is very reasonable. We were looking at order number 8 – an order that – which one – made in 8 December 2015 where the children are already placed on an airport watchlist. The honourable court had been satisfied that the criteria for exercising court’s power of doing so was met at the time of application. The father indicated there has been no major changes in his circumstances – in neither party’s circumstances since the application was initiated.[8]
[8] Transcript, 8 November 2019, pages 59-60.
In respect of the question of the risk of the father not returning with the children to Australia, the mother submitted the following:
The father stated that his intention are to travel with the children to Hague Convention countries; however, your Honour should be mindful that the father has significant ties with the Country E, which is not a Hague Convention country.
In my respectful submissions, if the father is permitted to travel with the children without the mother being able to accompany children, there is nothing that could prevent the father travelling from Hague Convention country to another country which could be a non-Hague Convention country. The mother accompanying children would provide the court with additional level of certainty and security that the children would be returned back to Australia at the end of the travel. That also would be in the best children interests to have the mother’s comfort and support during long travel, especially if the children are going to stay for some time in some unfamiliar environment. And, also, your Honour should be mindful, if the father retains the children overseas, the process of recovery even from a Hague Convention country could be quite difficult and a long one.[9]
[9] Transcript, 8 November 2019, page 60.
Father’s submissions
As stated, the father asks the Court to reject the mother and ICL’s proposal for accompanied travel. Mr Levy, counsel for the father made the following submissions:
It’s unusual to see a bond offered in the quantum of the bond offered in this case. It is a significant amount of money. You’ve heard the evidence of the father, that he would only propose to take the children overseas if it was during school holidays. That, of itself, limits the duration of the trip. Bearing in mind that the orders that your Honour made yesterday allow him 14 days at Christmas and one half of the other holidays. My instructions are that the J School holidays, because it’s a Catholic systemic school, are the same as public school holidays
There can be no question as to the bona fides of the application. There is no threat to the welfare of either of the children in the proposed environment because my client proffered to your Honour from the witness box agreement to only travel to level 1 and 2 countries. There is no risk. There is zero risk of non-return, in my respectful submission. Your Honour could not find, on the evidence, that there is any risk of non-return of the children.
The evidence would satisfy your client – your Honour – in my respectful submission that my client has been an entirely responsible, dependable, and reliable parent. In 2015, the mother was prepared to go overseas herself because my client offered to care for the children in Australia. The family consultant concerns the real benefit to the children of the overseas travel. In my respectful submission, it’s obviously in their best interests. There are no downsides and there are no risks.[10]
[10] Transcript, 8 November 2019, page 55.
Mr Levy for the father also addressed the Court in relation to the allegations raised by the mother in respect of the father’s connections to Australia, submitting the following:
Your Honour would reject the assertion that there is any lack of tie to Australia on the part of my client in circumstances where he became an Australian citizen in 1999 and in circumstances where the mother admits that he has exercised his time with the children. Their evidence taken together would seem to indicate that he has been religious about seeing the children over years.[11]
[11] Transcript, 8 November 2019, page 62.
In relation to the question of authenticated consent Mr Levy made the following submission:
The first is that, in my respectful submission, any order which contemplates any kind of authenticated consent – I agree with my friend for the ICL – is likely to lead to more litigation. One could not be at all confident, given that the mother’s position is that there should be no travel, even though she says it’s in the best interests of the children, that she would ever consent to something my client proposed, and so this is, unfortunately, a case where we say your Honour needs to make an order which allows the travel because that’s the only way it will ever occur.[12]
[12] Transcript, 8 November 2019, page 59.
The issue of the mother accompanying the children while traveling with the father was also addressed by Mr Levy:
The whole idea of co-travel, I will call it – of the mother either travelling with my client and the children or bringing them to my client if he’s already overseas is fraught with difficulty, is highly artificial and impractical and could easily lead to further dispute and doesn’t accomplish anything, because there’s no doubt that, once the children are delivered, then they’re to go off with my client. What’s the difference between him returning them to the mother at an overseas airport or to their home? There’s no difference at all. So that’s a concept which, in my respectful submission, is just mistaken.[13]
[13] Ibid.
ICL’s submissions
As stated, the ICL was not able to express a view to the Court before the parties began their submissions. However, once those submissions were concluded, the ICL submitted the following in relation to the issue of travel:
We would recommend to your Honour that if your Honour is minded to make an order in favour of the overseas travel, that the first holiday period, if I can call it that, be a shorter period, not be a four-week period, given the children have had no travel the last four years, as I understand the evidence.[14]
[14] Transcript, 8 November 2019, page 62.
In response to the mother’s proposal, the ICL submitted:
And if your Honour is minded to make an order that the mother is seeking that the mother accompany the children, it would be appropriate that that take place for the first of those visits. [15]
[15] Ibid.
In relation to the issue of authenticated consent the ICL submitted that:
I have to say, in fairness, based on what we’ve seen over the last two days between these parties, I think the – despite the fact that the travel thus far has been by consent, I wouldn’t put much faith in there being further consent about anything along those lines from now into the future. So I think that would be fraught with difficulties and I think, quite comfortably, we’d be back in court in dispute about that.[16]
[16] Transcript, 8 November 2019, page 51.
Relevant case law
I note at this point in my reasons that there is no specific provisions in the Act relevant to international travel, save for Subdivision E of Division 6 of Part VII – being the obligations under parenting orders related to taking or sending children to Australia. That said, there are a large number of cases that have considered the issue of international travel. In particular, the Full Court’s decision of Kuebler and Kuebler (1978) FLC 90-434 and Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729. I note that the father referred to both of these cases in his case outline document and during oral submissions.
The case law would suggest that the Court should examine the following questions:
·The length of the proposed stay out of the jurisdiction.
·The bona fides of the travel application.
·The effects on the child of any deprivation in spending time with the other non-travelling parent.
·Any threats to the welfare of the child and the circumstances of the proposed environment of travel.
·The degree of satisfaction the Court may have in the travelling parent’s promise to return to the jurisdiction.
·Whether a financial security is appropriate.
·Hardship issues.
·Whether the country of proposed travel is a member of the Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”).
I now consider each of these questions in light of the available evidence and the submissions made by the parties.
Length of proposed travel
As stated, while the parties were in agreement that authorised travel should occur in school holiday periods, the mother seeks to limit the children travelling internationally with the father to one period a year. This restriction was primarily due to the financial reasons attached to the mother’s desire for the children to only travel with her to, and from, any international destination.
The father asks the Court not to restrict any international travel to just one period a year.
His counsel Mr Levy made the following submission in support:
And as to the proposal for one trip per annum, why shouldn’t the children enjoy, for example, seven days in Country O with their father in the middle of an Australian winter? Why would – where is the purpose in denying them that opportunity – or any other number of countries that one could name that are Convention countries.[17]
[17] Transcript, 8 November 2019, page 63.
The bona fides of the application
Both parties ultimately accepted that it was in the best interests of the children to be able to travel internationally, in particular to countries that the children have a cultural connection to – in this case, Country C and Country B. The father’s counsel Mr Levy made the following submission in respect of the children’s cultural connections:
So the starting point is that these children, these particular children, have diverse ethnic and cultural backgrounds. They have an entitlement to grow up with a full understanding of that. And it’s best accomplished by not being just told about things by their parents but also through them having the direct experience. And there was a concession made by the mother in cross-examination about that fact.[18]
[18] Transcript, 8 November 2019, page 54.
The Court agrees with the statement of the family consultant in the Family Report which stated:
Experiencing their Country B culture would be important for X and Y in their formation of a personal and cultural identity.[19]
[19] Family Report by Ms H dated 6 March 2018 paragraph 45.
The effect on the child of any deprivation of spending time with the other parent
The mother maintained her concerns of the risks associated with the children travelling with the father without her accompaniment. The mother reinforced her argument that as the children have been in her primary care since birth they would find it difficult to adjust to long periods of separation from her. The mother further submitted:
The court should take the risk of abduction seriously, and, also, your Honour should be considering section 60CC, in particular, subsection 60CC(3)(d), and that is if we have a prolonged separation from the mother and the children’s eldest brother, that could affect their relationship – the children’s relationship with mother and their sibling.[20]
[20] Transcript, 8 November 2019, page 61.
The father argued that the mother’s objections were irrational in circumstances where the father has never withheld the children from the mother and in circumstances where the parties agree that any international travel should occur only during school holidays. The father’s counsel Mr Levy made the following submission:
There is no threat to the welfare of either of the children in the proposed environment because my client proffered to your Honour from the witness box agreement to only travel to level 1 and 2 countries. There is no risk. There is zero risk of non-return, in my respectful submission.[21]
[21] Transcript, 8 November 2019, page 54.
Any threat to the welfare of the child in circumstances of the proposed environment
Strictly speaking, this was not relevant, as the mother’s main concern was the alleged flight risk that the father presents.
Both parents during the course of the final hearing were agreeable that any future travel would be guided by the Commonwealth Smart Traveller website to countries only with a rating of level 1 or 2 and with a restraint on travel to countries with a rating level of 3 or 4.
The degree of satisfaction in the travelling parent’s promise to return to the jurisdiction
As stated, the mother submits that the father is a potential ‘flight risk’ and the father disputes this assertion. The mother submits the following:
So the father is a citizen of Country B by birth, so he obtained Australian citizen by conferral, I think, in 1992, as far as I remember. The father has elderly parents, who are currently residing in Australia and – however, his parents are also Country B citizen and maintain close ties with Country B. There is nothing preventing them to move back to Country B, as has been attested in evidence.
There is no evidence before the court that the father has any significant assets in Australia, and there is no evidence before the court that the father has an ongoing income in Australia. And there is no evidence in the – before the court that the father has employment ties with Australia. The court could not be satisfied that the father has significant incentive to return to Australia should he choose to reside with the children overseas. On the other hand, we know that the father has residence in Country E and the father is running a business in Country E. As the corroborative evidence of the father’s connection with the Country E exists, it would be necessary to consider the risk of abduction on the balance of probabilities. As – already mentioned that Country E is a non-Hague Convention country.[22]
[22] Transcript, 8 November 2019, page 61.
Mr Levy counsel for the father made the following submissions:
As I read the evidence, the only reason being advanced by the mother for no overseas travel – because that’s her application – is her – my word – irrational allegation of a flight risk unsupported by a scintilla of evidence which would give your Honour anything to find that it was a genuine concern. There is not a single incident where my client has failed to return the children and there is not a single incident where he has threatened to not return the children. No evidence of that at all.[23]
[23] Transcript, 8 November 2019, page 55.
Whether financial security is appropriate
The father has proposed that he lodge the sum of $50,000 by way of surety to enable international travel by the children with him to occur.
The amount of the financial security should, where possible, be sufficient to act as a deterrent to flight risk and to compensate the non-travelling party for the likely costs of international travel to relevant country and the costs of having to prosecute legal proceedings in that foreign jurisdiction.
Hardship issues
There were no obvious hardship issues as no specific trip is presently planned.
Whether the proposed country of travel is a Hague Convention country
As stated, the parties have agreed that all travel should only be to Hague Convention countries.
The parties were able to agree that there should be restraint on each parent while travelling with the children, from leaving the airport in any country that is not a member of the Hague Convention on the Civil Aspects of International Child Abduction which is in force with Australia.
I note that Country C acceded to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Abduction Convention) on 15 November 2001. Similarly Country B acceded on 28 September 2001.
Additional Considerations: Section 60CC(3)
In relation to section 60CC(3)(a), the views of the child, etcetera, the Court refers again to the comments made by Ms H in the family report:
If the Court finds that there is no risk of overseas abduction of the children, it would certainly be beneficial to them to experience world travel and other cultures. Y, in particular, expressed a strong interest in the paternal side of his culture.[24]
[24] Family Report by Ms H dated 6 March 2018 paragraph 45.
In relation to section 60CC(3)(b), the nature of the relationship between the child and each of the child’s parents, etcetera, both parents presented as having a close and continuing relationship with the children. I refer again to the comments made by Ms H in the family report.
In relation to section 60CC(3)(c), the extent to which each parent has facilitated an opportunity to participate, etcetera, and section 60CC(3)(ca), the extent to which each of the child’s parents have fulfilled their obligations to maintain the child, etcetera, these provisions are not relevant to the discrete issue.
As to section 60CC(3)(d), the likely effect of any changes, etcetera, and section 60CC(3)(e), the practical difficulty and expense issues, etcetera, I refer to previous comments.
As to section 60CC(3)(f), the capacity of each of the child’s parents, etcetera, that is not relevant to the discrete issue before me.
In relation to section 60CC(3)(g), maturity, sex, lifestyle, and background issues, etcetera, I note as previously stated that the mother is of Country C background and the father is originally from Country B.
In relation to section 60CC(3)(h), this is not a relevant factor, as neither party or the child identifies as Aboriginal or Torres Strait Islander.
In relation to section 60CC(3)(i), the attitude issues etcetera, that is not relevant to the discrete issue before me.
Similarly, in relation to section 60CC(3)(j), family violence and section 60CC(3)(k), family violence orders, while the mother makes allegations[25] about the father’s behaviour the Court is unable to make a finding of family violence. In relation to family violence orders, I am not aware that there are any apprehended domestic violence orders relevant to these proceedings that affects either party.
[25] Mother’s affidavit filed 12 September 2019, paragraphs 32-36 and 40-54.
As to section 60CC(3)(l), whether it would be preferable to make the order that would be least likely to lead the institution of further proceedings in relation to the child, strictly speaking that is not applicable as this is the final hearing of a discrete issue and the Court intends to pronounce final orders. That said, I note the ICL agreed with the father’s submission that there was some likelihood that further proceedings may be initiated if the Family Law Watchlist remained subject to the parties providing authenticated consent for international travel and the parties disagreed over whether consent should be given.
As to section 60CC(3)(m), any other fact or circumstance, etcetera, save for the issue of costs (discussed below) there are no other facts or circumstances which the Court wishes to refer to that have not already been raised or canvassed in these reasons or are otherwise discussed below.
Findings
This is a difficult discrete issue for the Court to decide. I am satisfied that both parties are genuine in their submissions to the Court. Nevertheless, a decision is needed to break the impasse. Clearly, one or both of the parties may be disappointed by the Court’s decision.
The Court is satisfied and finds that, on balance, the benefits of the children travelling internationally (separately with each parent) outweighs any outright prohibition on travel, provided there are sufficient safeguards implemented. The parties ultimately conceded an outcome in favour of international travel occurring subject to additional conditions being judicially determined.
Having regard to the respective proposals and submissions in light of the available evidence and the relevant statutory provisions and case law, the Court is satisfied and finds as follows.
Removal of international travel restraint/Family Law Watchlist
The Court agrees with the father and the ICL that, given the pre-conditions to be applied to international travel occurring, the current international travel restraint (and the Family Law Watchlist) can be removed. While the Court agrees with their submissions that there is a greater likelihood of future legal provisions should the travel require ‘authenticated consent’, the Court is satisfied that the ‘flight risk’ concerns expressed by the mother are mitigated by:
·the parties’ agreement for international travel to be restricted to ‘Hague Convention’ countries;
·the father’s agreement to post a security deposit of $50,000 for all approved international travel; and by
·the children travelling with devices with GPS capability (by consent).
Consequently, the Court finds in favour of the removal of the relevant restraints and is satisfied that such an outcome is in the children’s best interests.
Whether travel should be restricted to one period annually
Subject to the co-travel issue (discussed below), the Court agrees with the father that any international travel should not be restricted to one period annually. Given the agreement for the children to only travel internationally during school holiday periods, the Court is satisfied that any further restriction would not be in the children’s best interests.
The Court finds accordingly.
Period of notice to be given by the travelling parent
As stated, the mother proposes that the travelling parent provide not less than nine months’ notice of any intended international travel to and provide the other parent with the relevant travel itinerary and copies of airline tickets not less than six months prior to the intended travel.
The father proposes that that the travelling parent provide not less than six weeks’ notice to the other parent and not less than three weeks to provide the other parent with the relevant travel itinerary and copies of airline tickets.
While both parties agreed that notice and documentation relevant to international travel should be provided, it was not entirely clear to the Court why the mother required such a long period of notice. While it is possible that the mother’s proposal was linked to her desire to co-travel (and hence may benefit from maximum notice being given in order to make her own travel arrangements) that was not a submission made to the Court.
The Court is persuaded by the father’s argument that a shorter period of notice – noting that the father submitted that at least six weeks’ notice of intended travel (with documentation to be provided at least three weeks prior to travel occurring) – would address the concerns of each party and would provide certainty for the children. However, the Court disagrees with the timeframe of six weeks and finds that, in this matter, and in consideration of each party’s concerns, a period of at least eight weeks’ notice is more appropriate and in the best interests of the children.
Whether the mother can accompany children on relevant flights
The Court was presented with a unique proposal by the mother to accompany the children on international flights to facilitate relevant time to be spent with the father. The Court appreciates the mother’s view that this proposal was reasonable in light of her ability to offer the children a sense of security in the midst of change. That said, when one considers the logistics of the proposals, and the now poor relationship between the parties, the Court is not persuaded that such an arrangement would be in the children’s best interest.
Although, as stated, the ICL originally did not want to be heard on the discrete issue, when asked by the Court to consider the mother’s proposal, she initially expressed the view that it was not a viable proposal. The ICL, when considering the mother’s proposal that all international trips should be accompanied, also recommended a limitation on the mother accompanying the children on the first flight only, in the event the Court was minded to make such an order. Having considered this issue, the Court is not persuaded that an accompaniment order is in the children’s best interests, for the reasons discussed below.
First, it is difficult for the Court to reconcile the concerns expressed by the mother at the final hearing in light of her previous consent for X to travel internationally with the father (in 2012 to Country B and in 2014 to Country P), and her permission for the paternal aunt to accompany the child on travel from Australia to Country B.
Secondly, the Court also finds it difficult to reconcile the mother’s argument that accompaniment would reduce flight risk given the conditions consented to by the father (and the mother).
Thirdly, in the absence of consent between the parties, the Court is concerned about exposing the children to possible tension that may arise if changeovers were required to occur between the parties outside Australia.
Fourthly, it would be remiss of this Court not to raise the impact of the Australian Government’s response to the Coronavirus (Covid-19) public health threat on the preparation of international travel arrangements. The Court now notes that the Australian Government has presently[26] listed all international countries as ‘level 4 – do not travel.’ Clearly, this is an unforeseen restriction that would impact upon the orders while that restriction remains. In addition, should the father currently travel to Australia to spend time with the children, he would be required to quarantine for a period of 14 days. These are all restrictions which were not foreseeable at the final hearing. That said, the Court is confident that the parties have the ability to reasonably negotiate in a business-like manner and should be able to navigate these difficulties given the framework for international travel that will be provided by the final orders.
[26] As at 15 May 2020.
Although no orders will be made for the mother to accompany the children on required international travel to facilitate the children spending time with the father, the Court finds that orders should be made (unless otherwise agreed) requiring the father to accompany the children on their flights departing from and returning to Australia.
Notwithstanding the order requiring the father to accompany the children on their international travel, in the event that the mother indicates a desire to travel (at her expense) at the same time with the children, I would ask the parties to consider the practical benefit of the children travelling with the mother on the requested occasion to alleviate the necessity for the father to travel to Australia to collect the children. In suggesting that this be considered I note that the father is primarily based in the Northern Hemisphere and the mother and the children have extended family also based in the Northern Hemisphere. That all said, this is not a requirement of the Court but a mere suggestion.
Conclusion
The Court’s findings are now stated.
In summary, the Court will make orders for the discharge of the Family Law Watchlist and orders permitting the mother and father to travel outside of the Commonwealth of Australia provided they:
·Travel to countries that a member state of the Hague Convention and (a restraint on leaving the airport of non-Hague countries);
·Do not travel to any country that is listed as a level 3 (reconsider your need to travel) or level 4 (do not travel) on the Australian governments smart traveller's website;
·Provide written notice and travel details to the other parent;
·The father deposit a bond in the amount of $50,000 should he be the travelling parent; and
·The children have a GPS tracking device at times while travelling internationally.
There will be Orders of the Court to reflect these reasons. The ICL will be discharged with the thanks of the Court noting the issue of the ICL’s costs was addressed on the first hearing day on 7 November 2019. The following order and notation was made:
28. Within twenty-one (21) days from the date of these Orders or, in a timeframe deemed appropriate by Legal Aid NSW, the Father shall pay to Legal Aid NSW the sum of $3,402.40 being payment of the fees for the Independent Children’s Lawyer unless his liability to contribute towards these costs is waived by Legal Aid NSW.
E. While the Independent Children’s Lawyer sought costs in the sum of $3,402.10 from the mother in paragraph 29 of her minute, the Court was advised that the mother had been previously represented under a grant of legal aid and pursuant to s117(4) of the Family Law Act (Cth) the Court is unable to make that order.[27]
[27] Paragraph 28 and notation E of the Orders made on 7 November 2019.
The Court is satisfied that the above outcome is in the best interests of the children.
There will be Orders and Notations of the Court to reflect this decision.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Monahan.
Date: 15 May 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Remedies
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Costs
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Procedural Fairness
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Standing
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