Norfolk and Mervin

The Family Court of Australia considered an application by Ms Norfolk (the Mother) seeking permission to take her two sons, B and C, on an overseas holiday to Country E. Mr Mervin (the Father) opposed the application, and the Independent Children’s Lawyer did not support it. The proposed trip was intended to provide cultural and educational experiences for the children, particularly for C, who has Trisomy 21 Down Syndrome and associated behavioural and communication difficulties. The Mother argued the trip would be beneficial for C and that educational disruption could be managed, with fares being significantly cheaper during the proposed travel period.

The central legal issue before the Court was whether it was in the best interests of the children, B and C, to grant the Mother permission to remove them from Australia for the proposed holiday, having regard to the considerations set out in section 60CC of the *Family Law Act 1975* (Cth). The Court was required to balance the potential benefits of the trip against other factors, including the existing contentious litigation between the parents, the children's welfare, and any relevant expert advice.

Justice Kent dismissed the Mother's application, finding that the balance of considerations weighed against granting permission. The Court noted the absence of the Family Consultant's views on the proposed trip, despite her having prepared a detailed report on the children's circumstances. Furthermore, the Court highlighted the significant parental conflict, past disruptions to the children's schooling and contact with their father, and a travel advisory recommending against travel to Country E. While acknowledging the potential benefits for C and the children's anticipation of the trip, the Court concluded that these factors were not determinative and that the proposed trip represented an "experiment" in a foreign environment, particularly given the Mother's potential challenges managing the children's behaviour abroad. The Court also ordered that a Family Consultant explain the reasons for the refusal to the children and made orders restraining the removal of the children from Australia and requiring their passports to be surrendered.