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…
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- AGLC
- Geary and Geary [2020] FCCA 965
- Case
- [2020] FCCA 965
- Decision Date
CaseChat Overview and Summary
The court was required to determine the conditions under which each parent could travel with the children outside of Australia. This included establishing requirements for notice, destination countries, travel documentation, and the use of GPS tracking devices. Further issues involved the circumstances under which parents would be restrained from travelling to certain countries, and specific provisions relating to the father's travel, including the deposit of a substantial bond. The court also addressed the management and renewal of the children's passports.
The court's reasoning focused on balancing the parents' desire to travel with the children against the need to protect the children and ensure their return to Australia. To this end, the court applied provisions of the *Family Law Act 1975* (Cth), including Section 65Y, to permit travel subject to stringent conditions. These conditions included requiring travel to Hague Convention member states, providing extensive notice and itinerary details, and furnishing proof of return travel. The court also imposed restrictions on travel to countries with high travel advisories and mandated GPS tracking. Specific to the father, a significant bond was required to be lodged with the court, to be released upon confirmation of the children's safe return, with provisions for its release to the mother in certain circumstances. The court also ordered that the children's passports be held by the court registry except when required for approved travel.
On a final basis, the court ordered the removal of the children from the Family Law Watchlist. It permitted international travel with the children by either parent, subject to a comprehensive set of conditions detailed in the orders, including notice periods, destination restrictions, and the provision of travel documentation. The court also made specific orders regarding the father's travel, including the deposit of a $50,000 bond, and mandated that the children's passports be held by the Federal Circuit Court registry, to be released only for approved travel. The court also ordered the discharge of the Independent Children’s Lawyer and dismissed all extant applications.
Orders
Orders of the court
THE COURT ORDERS ON A FINAL BASIS THAT:
1.
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.
2.
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.
3.
The travelling parent ensure that the children wear a functioning device with GPS location tracking at all times they are overseas.
4.
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.
5.
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”).
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
The appointment of the Independent Children’s Lawyer be discharged.
14.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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