Hancock and Valenta

[2018] FCCA 1385

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANCOCK & VALENTA [2018] FCCA 1385

Catchwords:
FAMILY LAW – Parenting – overseas travel with child – citizenship of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 68B

Cases cited:

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) FLC 92-729

Applicant: MS HANCOCK

Respondent: MR VALENTA

File Number: HBC 136 of 2017

Judgment of: Judge Baker

Hearing dates: 2 May 2018, 3 May 2018 and 21 May 2018

Date of Last Submission: 21 May 2018

Delivered at: Hobart

Delivered on: 30 May 2018

REPRESENTATION

Counsel for the Applicant: Ms Higgins

Solicitors for the Applicant: Bishops Barristers and Solicitors

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: N/A

ORDERS

1. The father is permitted to remove the child [X] (‘[X]) born 2014 from the Commonwealth of Australia (‘Australia’) from 7 June 2018 until 18 July 2018, in accordance with the travel plans provided to the mother and the Court (Exhibit F9) to travel only to the countries of the (countries omitted), on condition that the father by 4.00pm on 4 June 2018:

   (a)provides the mother with a photocopy of the return airline tickets in [X]’s name;

   (b)provides the mother with an itinerary indicating the places at which [X] will be staying in the (countries omitted), with the addresses, and where possible, landline telephone number of each place; and

   (c)pays to the mother’s solicitors $20,000 security, to be held by those solicitors in a controlled monies account, and to be repaid to the father if [X] is returned to Australia in accordance with these orders, or if [X] is not so returned, to be applied in payment of the mother’s expenses incurred in seeking [X]’s return to Australia, including the mother’s legal costs and disbursements, and her travel and accommodation costs incurred in travelling to seek [X]’s return.

(1A)Upon the father’s arrival in each country, he forthwith provide the mother with a mobile telephone number on which [X] may be contacted throughout the period he is to spend overseas with the father.

1. During any overseas travel, the father shall ensure that the child communicates with the mother by Skype, FaceTime or telephone on two occasions each week for up to 15 minutes, at times nominated by the mother, and the father shall facilitate such time unless he does not have internet access or there is some other logistical reason, and he shall then make another time to ensure the mother’s time is not missed.

2. The mother shall spend compensatory time with [X] for any time missed by her as a result of the travel in order 1, such time to occur at times nominated by her in writing.

3. If [X] does not travel overseas in June/July 2018, the father be permitted to remove [X] from Australia during the 2018 Christmas school vacation period, to travel with him to (country omitted) for a period of not more than 35 days including travel time, such trip to commence two weeks prior to the commencement of the 2018 Christmas school vacation period, unless otherwise agreed in writing by the parties. If the father does not travel at this time, [X] shall spend the first half of the holidays with him.

4. The mother shall spend compensatory time with [X] for any time missed by her as a result of the travel in order 4, such time to occur at times nominated by her in writing.

5. In each alternate Christmas school holidays commencing in 2020, the father be permitted to remove [X] from Australia to travel with him to (country omitted) for a period of not more than 21 days, including travel time, unless otherwise agreed in writing, such time to commence at the commencement of the Christmas school holidays, unless otherwise agreed in writing.

6. The father be permitted to remove [X] from Australia to travel to (country omitted) during his school holiday time with him, or such other time agreed in writing, commencing in 2019.

7. In relation to all travel overseas, except for the June/July travel provide in order 1, the father must on each occasion provide to the mother:

   (a)A photocopy of return airline tickets in [X]’s name no later than 14 days prior to the child’s departure date;

   (b)14 days prior to the travel date, an itinerary indicating the places at which [X] will be staying and the addresses and, where possible, landline telephone number of each place; and

   (c)30 days prior to the travel date, the father shall pay to the mother’s solicitors $20,000.00 security, to be held by those solicitors in a controlled monies account, and if the mother does not have a solicitor to a bank account nominated by her, and to be repaid to the father if [X] is returned to Australia in accordance with these orders, or if [X] is not so returned, to be applied in payment of the mother’s expenses incurred in seeking [X]’s return to Australia, including legal costs and disbursements in Australia and (country omitted) and travel and accommodation costs incurred in travelling to seek [X]’s return.

(8A)Upon the father’s arrival in the country of travel, he forthwith provide to the mother a mobile telephone number on which [X] may be contacted throughout the period he is to spend overseas with the father.

1. The mother shall retain [X]’s passport at all times apart from when [X] is travelling. Upon payment of the security bond, in order to facilitate [X]’s travel overseas, the mother must provide the father with his Australian Passport to enable the father to book airline tickets for him. The father must return [X]’s passport to the mother upon [X]’s return.

2. The parties shall do all acts and sign all documents necessary to ensure that [X] has an up-to-date Australian passport and sign all necessary travel documents.

3. Any agreed changes to the above travel arrangements shall be made in writing and signed by both parties.

4. For the purposes of these orders, school holidays are defined as commencing on the day after school finishes and concluding on the day before school starts in accordance with the Term dates for Tasmanian Government School Students prepared by the Department of Education, Tasmania.

5. The father, his servants or agents are hereby restrained from applying for a (nationality omitted) passport for [X].

6. The father is not permitted to apply for (nationality omitted) citizenship for [X] unless agreed by the mother or unless otherwise ordered by the court.

THE COURT NOTES THAT:

A.It was declared on 3 May 2018 that Australia is the habitual residence of [X] born 2014. 

B.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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Hancock & Valenta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 136 of 2017

MS HANCOCK

Applicant

And

MR VALENTA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are the parents of the child [X], born 2014.

2. A final hearing of the parenting proceedings commenced on 2 May 2018. The Family Consultant gave oral evidence at the hearing about the Family Report dated 9 January 2018. The mother was cross-examined by the father. The parenting arrangements settled before the cross-examination of the father was completed.

3. On 3 May 2018, consent parenting orders were made, except for the issue of the father’s travel overseas with [X] and the issue of [X]’s (nationality omitted) citizenship and passport. The issue of [X]’s time with the parents for Christmas 2018 was also outstanding. These issues were heard on 21 May 2018.

4. The final parenting orders essentially provide that the parties have equal shared parental responsibility for [X]; he live with the mother from Wednesday until Friday in week one, and from Wednesday until Sunday in week two; and otherwise live with the father. The orders provide that [X] spend one half of each school holiday period with each party. They also provide for special day time with each parent.

Background

1. The parties commenced a relationship in 2011 which continued for around 6 months. Around one year after separation, the mother approached the father asking him to donate his sperm to produce a child through IVF. [X] was born as a result.

2. The parties lived under the one roof in Hobart after [X]’s birth, so they could both be involved in his parenting. This continued for around 16 months. From October 2015 until March 2017, [X] lived primarily with the father and spent time with the mother on two nights per fortnight. Orders by consent were made in March 2017. These provided that [X] spend four nights per fortnight with the mother.

3. On 14 July 2017, after a defended interim hearing, orders were made that [X] live with the father in Hobart and spend five nights per fortnight with the mother in Town A.

4. The mother owns a house in Town A and is employed as a (occupation omitted). The father owns a house in Hobart. He is a (occupation omitted) and is currently unemployed. He runs an Airbnb from his home. He is of (nationality omitted) background.

5. There has been high conflict and acrimony between the parties. In August 2016, the father sought a recovery order in respect of [X]. Both parties alleged abuse and family violence against the other.

Relevant Law

1. The mother is seeking an order that both parties be restrained from removing [X] from the Commonwealth of Australia. The father is seeking travel orders to take [X] out of the Commonwealth of Australia.

2. The mother is also seeking an order that the father be restrained from seeking a (nationality omitted) passport for [X].

3. Section 68B(1) of Family Law Act 1975 (Cth) (‘the Act’) provides:

   68B  Injunctions

   (1)  If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child…

4. The Court has a power to grant injunctions and make orders in relation to children. It is a wide power, providing the Court with a discretion to be exercised when it is appropriate to do so for the welfare of a child.

5. S.60B of the Act sets out the objects of Part VII and the principles underlying it.

6. Section 60B(2)(b) of the Act provides:

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests)…(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)…

7. In respect of the father’s travel proposals, the Court is required to make orders in the child’s best interests,[1] having regard to any relevant s.60CC considerations.

   [1] Section 60CA of the Act.

Travel Proposals of the Father

1. The father’s travel proposals are extensive.[2]  

   [2] See Amended Response filed 4 April 2018; Affidavit of Mr Valenta affirmed 14 May 2018 [12].

2. He proposed that he be permitted to travel overseas with [X] in June/July 2018 for six weeks. He proposed makeup time in his affidavit affirmed 14 May 2018 as follows:

   i. As make up time the mother can spend time with [X]

   ii. Wednesday May 23, 2018 and/or Thursday May 24, 2018

   iii. Friday June 1 until Sunday June 3, 2018 4 pm change over Town A and on two additional weekends of her choosing after the father’s return in July and August that are not consecutive fortnights. The mother’s routine time is otherwise suspended during this time.[3]

   [3] Affidavit of Mr Valenta affirmed 14 May 2018 [12](a)(i)-(iii).

3. His preliminary travel plan however proposes 10 days of makeup time ‘TBD’.[4] I infer that this means ‘to be decided’.

   [4] Exhibit F9.

4. In respect of the Christmas school holidays, in his Amended Response filed 4 April 2018, he proposed that commencing in 2018 (2019 if his travel request for June 2018 is approved) and each alternate year thereafter, that he travel overseas with [X] from the last day of school in Term 4 for up to five weeks, to extend for 7 days during school term, ‘as discussed and agreed with [X]’s teachers’. If the father does not travel internationally, he proposes that he travel in Australia, and that he may elect that the travel is carried over to the following year. In his Amended Response, the father proposed three trips in Australia or (country omitted) in 2018, 2019 and 2020. He also proposed travel at short notice to (country omitted) on various occasions. He also proposed other overseas travel, including to (country omitted), during the time when [X] is in their care.

5. On 3 May 2018 consent orders were made and the parties agreed that [X] spend one half of each school term holiday period with each parent.

6. Subsequent to the making of the consent orders, in his affidavit sworn 14 May 2018, he proposed that in the years he does not travel to (country omitted) over Christmas, he may:

   …in consultation with the mother and with written permission of [X]’s teacher …travel to (country omitted) during the full term of one of the term holidays and extend the term holiday by a maximum of 14 days to include either days before the end of the term or the beginning of the term. The mother will not unreasonably deny [X] this opportunity to enjoy the father’s culture with his extended (nationality omitted) Family. As make up time the mother ‘will can chose’ another term holiday in that year in which she can spend time with [X] for the entire term holiday period. The mother’s routine time is otherwise suspended during this time.[5]

   [5] Affidavit of Mr Valenta affirmed 14 May 2018 [12](d).

7. In paragraph 12(e) of his 14 May affidavit, he proposed that each parent can take [X] on a holiday outside of the Commonwealth of Australia when he is in their care, e.g. during school holidays or at such other time as provided in these orders or the parties may agree in writing. Additionally, he proposed that either parent may travel to (country omitted) as part of their regular routine time or regular holiday time with [X] at 14 days’ notice. Other various orders were proposed by him in respect of notice and retention of passports. A joint annual holiday plan was proposed.

8. In respect of (nationality omitted) citizenship, the father proposed that he be permitted to apply for (nationality omitted) citizenship and a (nationality omitted) passport for [X] and that the mother facilitate this.

The Mother

1. The mother filed an updated affidavit on 17 May 2018. She proposed that for Christmas 2018, [X] spend time with her from Christmas Eve until Boxing Day. Orders by consent have been made on 3 May 2018 for the Christmas holidays from 2019.

2. The mother is opposed to [X]’s travel in June/July 2018. If the Court determines that the father can travel with [X] on a regular basis to (country omitted), she seeks that it is a condition of the trip that:

   (a) Mr Valenta take the most direct route to (country omitted) without layovers extending beyond reasonable transit times; (b) provide copy of E-ticket (c) details including address where will be taking and (d) pay a bond of $20,000 at least fourteen days prior to leaving Australia.

3. The mother opposed the travel proposals in paragraph 12 of the father’s affidavit and the proposed joint holiday plan. She opposed an extension to Christmas holiday time.

4. She opposed a variation of the final orders made 3 May 2018 proposed by the father in paragraph 12(d) of his 14 May affidavit, in which he sought travel to (country omitted) during a full term school holiday period when he does not travel at Christmas. The parties have already agreed on the school term holiday periods.

5. The mother is concerned that the father will relocate overseas with [X]. She told the Family Consultant that he is applying for employment overseas and may also consider relocating to (country omitted).[6] She believes that he has no anchors to Australia and has a track record of moving countries on a regular basis.

   [6] Family Consultant Ms L, Family Report 9 January 2018 [38].

6. The father told the Family Consultant in December 2017 that he secured three short contracts in his field in 2017. He told her that he has no intention of relocating from Hobart, as he is able to make a living through Airbnb and contract work.

Evidence of the Father

June/July 2018 trip

1. The father grew up in (country omitted), which is in (country omitted). His extended family, including his mother and sister, live in (country omitted).

2. The father lived in (country omitted) for 12 years and has friends there. The father gave evidence that: ‘Maintaining these friendships and enabling [X] to enjoy these cultural exchanges in person are important to me.’

3. The father has been invited to attend a (employment omitted) conference held on 18 June 2018 during the (employment industry) meeting 2018.

4. He believes that dividing the travel into three segments, from Australia to the (country omitted), from the (country omitted) to (country omitted), from (country omitted) to the (country omitted) and return to Australia, makes the trip a child focused enjoyable adventure for [X]. ‘[X] would also have the added benefit of meeting my long-term friends in the (country omitted) many of whom have children.’

5. The father informed the mother of this trip on 26 February 2018 and 6 March 2018. He wrote to her lawyer on 9 March 2018. On 13 March 2018 the mother responded that she was opposed to the travel.

6. The itinerary details the father’s plans, the people they will be staying with, and their addresses.[7]

   [7] Exhibit F9.

7. The father wrote about the invitation to attend a (industry) meeting of the (employment industry omitted):

   I have an invitation to attend a meeting of the (industry omitted) held on June 18, 2018 during the meeting (omitted).

   I have provided logistics support to (employer omitted) during their port call and the host Ms K invited me to discuss involvement in (employment omitted). This provides a unique opportunity to restart my career through remote participation in an outstanding project and provides a career opportunity to discuss contract work with a variety of colleagues at the (employer) 2018 meeting in (country omitted).

   The host pays for my travel expenses to and from the meeting. Thus, this provides a unique opportunity for [X] to meet his extended family in (country omitted) and my friends in (country omitted) and the (country omitted).[8]

   [8] Ibid.

8. An email from Ms Y indicates that the airfares for the father and [X] from Hobart to (country omitted) will be purchased to enable him to attend the Conference. ‘Your personal flight ticket, the train ride to (city omitted) return and your accommodation will be payed by our project fund.’[9]

   [9] Exhibit F7.

9. The father deposed that his mother will pay 2,000 Euros, covering [X]’s travel costs and part of the father’s other non-conference travel costs.

10. In respect of future travel, the father deposed:

    I would like [X] to have also the opportunity to enjoy my culture with his extended family and my friends who are part of my culture annually and overtime at different times of the year. Due to distance and costs, frequent travel to (country omitted) is not practicable… one annual extended travel for 4-6 weeks however is practicable and would provide [X] with an ability to enjoy his (nationality omitted) culture with his extended family and friends.

11. The father has been a member of the (nationality omitted) club since he was three years old and later became a (hobby/sports omitted). His sister and her family continue this tradition and regularly (hobby/sports omitted). He would like [X] to have the opportunity ‘semi regularly’ to enjoy this part of his culture with his extended family and friends in (country omitted).

1. The father deposed that [X]’s (nationality omitted) language skills would significantly benefit from extended 4-6 week vacations in (country omitted). ‘Extended visits (4 to 6 weeks or longer) would provide an alternative for [X] to immerse in the (nationality omitted) culture, improve his bilingual skills and gain proficiency in speaking (language omitted).’

Flight Risk

1. The father denies that he is a flight risk. He deposed that Hobart is his home and [X]’s home, which he would only very reluctantly give up. He deposed:

   The natural environment of Tasmania in combination of the cultural offerings of Hobart and other parts of Tasmania were the main reason for settling in Hobart after receiving the job offer at the (country omitted) in 2010.

2. He deposed, ‘I do hope that with the consent reached the conflict between Ms Hancock and myself decreases over time and we can both enjoy parenting [X] without fearing the other parent.’

3. The father had applied for work overseas in early 2018. He deposed that the main reason for applying for this work was the continuing conflict and violence he experienced. He felt trapped by this conflict and ‘Ms Hancock’s spitefulness and hate.’ He deposed that he disclosed the job application in his affidavit dated 4 April 2018, as he always intended on using due process to obtain court permission to relocate with [X]. He deposed that he had taken steps to obtain meaningful work in his field of work abroad, but has always respected that there is a process to ask for permission.

4. During cross-examination, the father was asked whether he has formally withdrawn his application for a job in (country omitted). His answer was that he would be notified if he were shortlisted, and as he has not been notified after two months, he assumes that he was unsuccessful. He said that he has not formally notified the employer that he is no longer interested in the position.

5. The father deposed in his affidavit affirmed 14 May 2018 that on June 23 – 24, his local (hobby) club travels to the (country omitted). He also details the persons he will visit in (country omitted).

6. [X] has not yet met the father’s family. Last year the father missed several major birthday celebrations, including his sister’s 50^th birthday, his mother’s 85^th birthday and his aunt’s 70^th birthday. He has previously proposed travel to (country omitted) with [X] on two occasions. Last year he proposed he travel for five weeks, coinciding with his mother’s 85^th birthday. The mother did not agree to the proposals.

The Mother

1. The mother is opposed to the June/July 2018 trip because she believes the father cannot afford the cost of travel. She is also concerned that he wants to travel to (country omitted) and has no information of the address for the (hobby club) or other information. She believes that the father will change the holiday proposal travel to other countries while out of Australia.

2. The mother does not have exact details of where [X] will be staying overseas. She believes that the conference in (country omitted) is work-related and cannot understand why [X] needs to be in (country omitted) with the father. She deposed that she has no address or details of where they will be staying. She has no information about the child care arrangements for [X] while the father is attending the conference. She is also concerned that the father has indicated in his recent affidavit he wants to travel to (country omitted) with [X] and this is the first time she has been notified of this.

3. The mother will miss out on up to 20 days with [X] during this period and she deposed that the father appears to be offering her five days of make-up time.

4. The mother did not want any orders in respect of her travel overseas with [X].

Flight Risk

1. The mother believes that the father is a flight risk. She does not currently trust the father. She deposed that the father has been vocal in the past about wanting to travel and live overseas with (country omitted). He has applied for work in (country omitted) in 2016 and in early 2018. He was also considering applying for a permanent position in the (country omitted). Until 3 May 2018, when the parenting arrangements were resolved, he was still looking at the option of permanently leaving Australia. The mother noted that the father conveyed to the Family Consultant in December 2017 that he had no intention of leaving Tasmania, but had two job applications pending as at 4 April 2018, one in Australia and one internationally.

2. The mother is concerned about the father’s motives for wanting to apply for (nationality omitted) citizenship of [X] and for a (country omitted) passport for him.

3. The mother deposed that the father bought real estate in the (country omitted) and left the (country omitted) still owning the house in July 2011, when he came to Australia. She deposed that he rented the house until about June 2016, when he sold it and made a loss. She is concerned that, due to this experience, ownership of real estate is not sufficient to keep the father in Tasmania.

Relevant Law

1. The decision of Kuebler & Kuebler,[10] refers to the considerations which should be given to an application which involves a parent taking a child out of the jurisdiction. These include: 

   [10] (1978) FLC 90-434.

   (a) The length of the proposed stay out of the jurisdiction; 

   (b) The bona fides of the application;  

   (c) The effect on the child of any deprivation of access; 

   (d) Any threats to the welfare of the child by the circumstances of the proposed environment; 

   (e) The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured. 

2. I consider that the June/July 2018 travel proposal of the father is bona fides. He will be attending a conference in (country omitted). He will be visiting friends in the (country omitted) and friends and family in (country omitted). The trip will cover a six week period.

3. [X] is a young child. He will miss time with the mother during a six week period. I consider that if there is make-up time for the mother of any time missed by her upon [X]’s return, this will reduce the impact of any time he misses with his mother.

4. I am not persuaded that there is any risk to [X]’s welfare while travelling with the father, who is a loving and committed father. The Family Consultant noted that [X] impressed as the priority in his parents’ lives and is much loved.[11] I consider that the father has capacity to properly care for [X] on this trip. The Family Consultant said that because the father has been [X]’s primary carer, [X] will manage six weeks away.

   [11] Family Consultant Ms L, Family Report 9 January 2018 [62].

5. I consider that [X] has a right to enjoy and experience the country of his father’s birth and to spend time with his relatives. The father has made arrangements to stay with friends in the (country omitted) and to attend a conference in (country omitted). The travel costs are being met by the conference organisers. I consider that [X] should be able to travel with the father on this occasion.

6. In issue was whether or not I should be satisfied that the father will return to Australia with [X].

7. The father has lived in Australia for around seven years. He is not an Australian citizen. He does not have employment in Australia. He owns a real estate property in Hobart. The mother’s evidence is that he has left real estate in the (country omitted) and rented it, and he could do this again. The father has been applying for jobs overseas. The father does not have family in Australia. His family lives in (country omitted). There is still conflict and mistrust between the parties.

8. The father has given evidence that he knows that there is a process for relocating [X] overseas. Nevertheless, weighing up all the considerations, I consider there is a risk of the father not returning, although it is not a significant risk.

9. I need to consider whether the father should provide security and if so, the level of security.

10. In the decision of Line & Line,[12] the Full Court of the Family Court outlined the principles to be considered in imposing security to ensure the return of a child held. The Full Court noted that the fixing of an appropriate level of security is always a delicate matter and one very much for the discretion of the trial judge. The Full Court held that in fixing an appropriate level of security for return of children, the trial judge should, in exercising the discretion, have regard to a number of relevant factors including:

    [12] (1997) FLC 92-729.

    (a)     The purpose of the security; to provide a sum to realistically entice the person removing the children to return and to adequately provision the party remaining in Australia to take action for the return of the children.

    (b)     The degree of risk that the departing parent will not return.

    (c) Whether the country of travel is a signatory to the Hague Convention on Child Abduction, and the likelihood of deviation to a non-convention country.

    (d)     The financial circumstances of both parties, and any hardship to either party if the level of security was increased or decreased.

11. In assessing the degree of risk that the father, once permitted to leave Australia, will despite assurances to the contrary choose not to return, the Full Court in Line & Line said the considerations are:

    … the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).[13]

    [13] Ibid 83,846.

12. The father intends to take [X] to the (countries omitted) in June/July 2018. These countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction.

13. The father has a low income and for the year ended 30 June 2017 his taxable income was $18,191. He is currently unemployed. He purchased his home in Suburb A in 2013 for $310,000. There is no evidence of its current value. His current debt position amounts to $218,986. He also has credit card debts of $6,869. He maintains a bank account in the (country omitted) to enable him to pay expenses. He has a bank account in (country omitted) with a small amount of savings.

14. The father has attempted to obtain a personal loan for $20,000, but due to his low income, his bank cannot provide him with a loan.

15. During cross-examination, the father said that he would be ascertaining whether he could borrow money from friends. He has approached one person ‘to put in money for him into the court as a bond and he would then instantly get it back as soon as the bond is released.’

16. He said he has approached two people and he has one other person he may approach, depending on the amount ordered.

17. There is no evidence of the mother’s financial circumstances, apart from evidence that she owns real estate in Town A and is currently employed. 

18. I consider the risk of the father not returning [X] to Australia is manageable, and is reduced if security is required to entice his return. The amount of security should be such as to provide the mother with funds to enable [X]’s return.

19. I consider that the sum of $20,000 is an appropriate sum to entice the father’s return and to enable the mother to fund lawyers to seek his return.

Travel proposals for the future

1. [X] has a right to enjoy and experience the country of his father’s birth and to spend time with his relatives. I consider that it is in [X]’s best interests to have the opportunity to experience his (nationality omitted) culture. I consider that he should have an opportunity to travel to (country omitted) to spend time with his extended family.

2. If the father and [X] do not travel overseas in June/July 2018, I consider it is in [X]’s best interests to be able to travel to (country omitted) to spend time with his extended family at Christmas time in 2018. [X] commences school in 2019, so I consider that the travel can be up to five weeks, commencing two weeks before the commencement of the 2018 Christmas school holidays, so the mother does not miss her half of school holiday time with [X]. The mother shall receive compensatory time for any time she misses, at such times to be nominated by her in writing. If the father does not travel, [X] will spend the first half of the Christmas holidays with the father.

3. The father wants [X] to travel to (country omitted) to experience his culture. I shall order that the travel shall be to (country omitted), unless otherwise agreed. The travel in June/July 2018 is a once-off trip while [X] is young and the stopovers will break the long trip up for him, so the travel is not so arduous for him.

4. I consider that such travel can occur at Christmas each alternate year for up to three weeks, unless otherwise agreed, as [X] will then be in school. I consider that the father should not be able to elect to carry over the travel to the following year, as this will interfere with [X]’s Christmas time with the mother.

5. I consider that it is in [X]’s best interests that he spend each alternate Christmas with each party, rather than share the day, given the conflict between them. This will also mean that [X] will not need to travel on Christmas Day.

6. In respect of the father’s travel proposal for travel during a full school term holiday, if he does not travel at Christmas, I made an order by consent on 3 May 2018 that [X] spend one half of each school term holiday period with each parent. The mother does not agree to vary the order. This proposal that was not included in the father’s Amended Response. In these circumstances, I do not intend to make this order.

7. The father proposed that each parent take [X] overseas each year during the time [X] is in their care e.g. during school holidays or at such other time as provided in the orders or as agreed. The mother opposed an annual travel plan and for such travel to be included in the plan. I consider that it will be difficult for the parties to reach agreement about an annual travel plan and this will cause further conflict. I do not know to which countries the father intends to travel and whether they are signatories to the Hague Convention. I am not persuaded that further travel for [X] as proposed is in his best interests.

8. The father also seeks an order that either party be permitted to take [X] to (country omitted) during their school holiday time with [X]. The father said that he would like to (hobby) there. The parties have travelled there with [X]. I consider that he should be able to travel to (country omitted) during his time in school holidays on the basis he pays a security bond. This travel can commence in 2019. I do not consider that his proposals for extended time away are in [X]’s best interests.

9. Travel itineraries will need to be provided to the mother for all travel.

10. I will make an order for the mother to retain [X]’s passport when he is not travelling with the father.

11. I consider that it is in [X]’s best interests to regularly communicate with the mother by Skype, Facetime or telephone when [X] is overseas, on at least two times per week, such time to be facilitated by the father.

(nationality omitted) citizenship and (country omitted) Passport

1. The father deposed that there are long-term benefits for [X] in obtaining (nationality omitted) citizenship:

   (a) (country omitted) currently provides free university study to its citizens, which [X] would have access to when he grows up;

   (b) [X] would have access to the market for (country omitted) when he starts working without having to apply to an expensive and often long visa process.

   (c) Ease of travel within (country omitted) and travelling to see his extended family in (country omitted);

   (d) There are also differences for travel and visa regulations between people travelling on a (nationality omitted) or Australian passport that may be beneficial to [X] at a later stage.

2. The father deposed that [X] would keep his (nationality omitted) citizenship and the benefit of it, even if the father were to relinquish his (nationality omitted) citizenship. He deposed that he is currently considering relinquishing his own (nationality omitted) citizenship after [X] has obtained his (nationality omitted) citizenship, in order to stand for election at either Federal or State Parliament. He deposed that dependent on changes in the law, [X] may not be able to apply for (nationality omitted) citizenship when he becomes an adult and the father has given up his (nationality omitted) citizenship.

3. I am not persuaded by the father’s evidence that there is any current benefit to [X] in obtaining (nationality omitted) citizenship. The benefits referred to by the father apply when [X] is older, attending university and seeking employment. The father did not provide any evidence about the difference for travelling in (country omitted) on a (nationality omitted) passport or an Australian passport.

4. There is no evidence to persuade me that a (nationality omitted) passport is necessary for [X]’s travel.

5. I consider that the father should be restrained from applying for a (nationality omitted) passport as sought by the mother.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Baker

Date:  30 May 2018