Petran & Petran
[2024] FedCFamC2F 996
•29 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Petran & Petran [2024] FedCFamC2F 996
File number: MLC 5732 of 2024 Judgment of: JUDGE SYMONS Date of judgment: 29 July 2024 Catchwords: FAMILY LAW – Parenting – international travel – where mother seeks that she be able to take children to Country B to visit maternal grandmother – where father opposes the application due to fear of abscondment and travel advice for Country B – where father opposes travel on the basis of impact on schooling and health concerns – where mother has demonstrated ties to Australia – Where Country B is a Hague Convention country – where overseas travel is in the children’s best interests – unacceptable risk not established – application allowed Legislation: Australian Passports Act 2005 (Cth), s 11.
Family Law Act 1975 (Cth), ss 60CA, 60CC, 60CG, 64B, 65D, 106A
Cases cited: Kuebler and Kuebler [1978] FamCA 26; (1978) FLC 90-434;
Line and Line [1996] 21 Fam LR 259; (1997) FLC 92-729.
Division: Division 2 Family Law Number of paragraphs: 80 Date of last submissions: 26 July 2024 Date of hearing: 26 July 2024 Place: Melbourne Counsel for the Applicant Mr L Fudim Solicitor for the Applicant G & M Lawyers Counsel for the Respondent Mr M Rohani Solicitor for the Respondent Juno Family Law ORDERS
MLC 5732 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PETRAN
Applicant
AND: MR PETRAN
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
29 JULY 2024
THE COURT ORDERS THAT:
1.The applicant mother is permitted to travel to Country B with the parties’ children X born in 2013, Y born in 2017 and Z born in 2019 (collectively referred to as the children) for a period of up to 28 days and on the following conditions:
(a)The mother provides a flight itinerary including copies of return airfare tickets to the father at least 14 days prior to her intended date of departure;
(b)The mother provides an address, contact phone number and details of accommodation throughout the period of travel to the father at least 14 days prior to her intended date of departure;
(c)The mother provides details of travel insurance for the entire period of travel to the father; and
(d)The mother provides confirmation that she will not travel to any area within Country B designated as advice “level 3” or higher on the SmartTraveller website maintained by the Australian government.
2.Pursuant to section 11 of the Australian Passports Act 2005 (Cth), the mother is authorised to apply for and receive Australian Passports for the children to enable them to travel outside of the Commonwealth of Australia.
3.For the purposes of order 2, the mother is permitted to provide a copy of these orders to the Department of Foreign Affairs and Trade.
4.In the event that the father refuses or fails to complete or sign any relevant document required to give effect to order 2 within 7 days of a request to do so, the mother be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign the documents on the father’s behalf as may be necessary to facilitate the children obtaining Australian passports.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
In this matter the applicant mother seeks orders permitting passport renewal and overseas travel for the parties’ three children:
(a)X born in 2013 and therefore aged ten;
(b)Y born in 2017 and therefore aged six;
(c)Z born in 2019 and therefore aged five.
The mother wishes to travel to Country B with the children for a period of approximately four weeks, to visit the maternal grandmother who is terminally ill. This matter comes before me on an urgent basis, given the mother proposes to depart Australia in mid-2024, prior to which time passports would need to be obtained for the children.
The father opposes the application citing concerns regarding the safety of travel to Country B, the impact of the proposed travel on the health of Y, and the impact of the proposed travel on the children’s schooling given the proposed travel dates fall entirely within the school term. He also apprehends that the mother might not wish to maintain the children’s residence in Australia because of what he describes as the high level of conflict in the parties’ relationship.
BACKGROUND
The mother is 43 and the father is 49. The mother was born in Country B and the father was born in Country C. The parties commenced cohabitation upon their marriage in 2010. The parties were married for approximately 13 years before separation in August 2023.
Post-separation, the children have been in the sole care of the mother. The children presently do not spend any time with the father. The father has not seen the children since 3 September 2023, although he has made efforts to see them since this time.
There are allegations of family violence perpetrated by the father and there is currently a final intervention order in place against the father that identifies the mother and the children as protected persons. The intervention order expires in mid-2024. The father consented to the making of the order without admissions.
These proceedings were commenced by the mother on 16 May 2024 for the sole purpose of obtaining orders to facilitate travelling overseas, including obtaining passports for the children.
In his response to final orders document, the father seeks that the mother’s application be dismissed. He also seeks final orders with respect to the parenting arrangements for the children that would involve a departure from the current arrangements.
MATERIAL RELIED ON
The mother relies on the following material:
·her application for final orders filed on 16 May 2024;
·her affidavit filed on 16 May 2024;
·her affidavit filed on 2 July 2024;
·her affidavit producing documents filed on 8 July 2024;
·her affidavit filed on 23 July 2024;
·her case outline filed on 23 July 2024.
The father relies on the following material:
·his response to final orders filed on 15 July 2024;
·his affidavit filed on 15 July 2024;
·the section 67ZBD response;
·his case outline filed on 19 July 2024.
ORDERS SOUGHT
In her case outline, the mother identified her proposed orders as follows:
1.Either party shall be permitted to travel with the Children, namely [X], [Y] and [Z] interstate or overseas provided that:
a) The extended interstate or overseas travel under this order shall not take place without prior written notice;
b) The parent wishing to travel with the child provides no less than 4 weeks’ notice of the dates of the intended travel itinerary, contact details while away and a copy of return airfare tickets, and the other parent shall not unreasonably refuse such request.
2.The parties shall each do all acts and things necessary to apply for an Australian Passport for the Children and upon each passport issuing it shall be held for safe‑keeping by the Applicant Mother.
3.That the parties must make sure that the Children have a valid Australian Passport. To make sure this occurs:
a) The Mother must give the completed application to the Father’s Solicitor office by way of express post within 7 days;
b) The Father must sign and return the application to the Mother’s Solicitor office by way of express post or hand delivery within 7 days of receiving it;
c) The Mother must immediately lodge the completed passport application within 3 days of receiving it;
d) The Mother is to have the child’s (sic) passport; and
e) The Mother must give the passport to the Father at least 4 weeks prior to any proposed travel with the child (sic) by the Father and the Father must return the passport to the Mother upon his return within 3 days.
4.That the Parties give consent to the issue of the renewal of the child’s (sic) passport at the parties’ jointly shared cost if required.
5.That parties hereby be restrained from listing the Child (sic) on the Airport Watch List.
Relevant to travel, the father seeks orders in the following terms:
1. Paragraphs 1-3 of the interlocutory orders sought by the Mother be dismissed
2. Each of [MR PETRAN] and [MS PETRAN] and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of [X] born [in] 2013, Male, [Y] born [in] 2017, Male and [Z], born [in] 2019, Female, from the Commonwealth of Australia.
3. [X], [Y] and [Z] be and are hereby restrained from leaving the Commonwealth of Australia.
4. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's name on the Airport Watch List until further order of this Court.
WHAT ARE THE MOTHER’S REASONS FOR TRAVEL?
Although the mother’s proposed orders are directed at travel generally, her immediate concern is to seek orders that would authorise her to travel to City D, Country B with the children to visit her mother (the children’s maternal grandmother) before she passes from a terminal illness. The maternal grandmother has a terminal illness. The mother’s evidence is that treating doctors believe the grandmother is stable presently, however the median survival time for people with this illness is four to six months. The mother produced a translated document described as “medical report from the [E Medical Authority]” that was said to detail the medical condition of the maternal grandmother. The report is dated mid-2023 and concludes with a “favourable 6-month prognosis”. The father criticises the mother for not producing more recent information about the maternal grandmother’s condition.
The mother deposes that the grandmother has previously visited the children in Australia and maintains daily video telephone contact with the children. The children and their grandmother share and enjoy an “extremely loving and close relationship”. The mother considers that in addition to spending time with the grandmother, a trip to Country B would offer the children the opportunity to visit and “pay homage to” their Country B ancestry and culture. If they were to travel to Country B this would be their first trip to that country and (except for X) their first trip overseas. The mother expects that the proposed travel opportunity will promote the children’s emotional, psychological, and physical welfare and development.
In response to a question from the Court, the mother’s counsel explained that while the children would primarily spend time with the maternal grandmother if they were to travel to Country B, they might engage in some incidental trips to places such as the supermarket or a local church. Counsel told the Court that there were up to ten family members also living in Country B although none was identified as significant to the travel plans.
The mother produced a “travel itinerary” on a travel agent’s letterhead for the proposed trip[1] which identifies a departure date mid-2024 and a return date to Australia a month later for several different flight options. Each option would involve at least two stops before reaching the final destination.
[1] Annexure “MSP-02” to the mother’s affidavit of 2 July 2024.
WHAT ARE THE MOTHER’S TIES TO AUSTRALIA?
The mother deposes to having an established life in Melbourne, Australia and that she appreciates the benefits that this country offers to the children, especially around safe living conditions and excellent educational opportunities.
It is the mother’s evidence that her sole assets and stream of income are based in Australia and that she does not have any assets or streams of income or benefits overseas.
The mother describes that she has been working in Australia as a health care worker since 2014. For the past ten years she has worked with F Centre as a support worker and for the past six years, she has also worked as a health care worker in the community. Since mid-2023, the mother has worked as a health care worker for G Service.
The mother is the director of her family business, H Pty Ltd. The business was registered in late 2023 but is not yet trading.
At hearing the mother sought leave to adduce evidence that she and the father were applicant parties to an extant VCAT proceeding in which they seek relief against J Company relating to a business that they purchased together (the mother as to 10% and the father as to 80%). The mother produced an order from VCAT that identified herself and the father as the first and second applicant to a proceeding against Mr K and Ms K who I infer are the owners of the J Company franchise. The order was tendered with the consent of the father and became exhibit “A2”. The mother’s counsel told the Court that the claim against J Company sought the amount of $1.2 million and if the parties were successful this amount would form part of the parties’ joint asset pool and decisions would need to be made about its distribution. The father did not challenge this evidence or submissions.
The mother also identifies her ties to Australia as existing through the children and their established schools and routines. The mother notes that the eldest child, X, is currently attending L School and is starting high school in 2026. She deposes that an application for his enrolment at M School has been completed by the parties. The child Y is attending L School in Foundation and the child Z is enrolled to commence there in 2025.[2]
[2] Exhibit A3 is a letter dated 24 June 2024 from the Principal of L School to the mother that contains an offer of a place at L School for Z for Foundation in 2025.
The mother and the child X are dual citizens of Country B and Australia whereas Yand Z are citizens of Australia only.
WHAT SECURITY IS OFFERED BY THE MOTHER?
The mother’s proposed orders would require either party wishing to travel with the children (interstate or internationally) to provide the other parent with no less than four weeks’ notice of the dates of the intended travel itinerary, contact details while away and a copy of return airfare tickets.
The mother’s proposal does not require her to pay any amount by way of a security bond and the father’s response does not address this issue, although it was raised tangentially by the father’s counsel in submissions. The father simply does not wish the mother to travel with the children to Country B under any circumstances or conditions.
WHY DOES THE FATHER OPPOSE TRAVEL?
The father, in his affidavit, acknowledges the special relationship that the children have with the maternal grandmother. Indeed, it is his evidence that from around 2012 until around 2021, the maternal grandmother stayed with the family in Australia yearly, for three to six months at a time, and on her last visit, for over a year and that during these visits, she would help around the house with cooking, cleaning, and care of the children.
However, the father deposes to having concerns about the children travelling to Country B to visit the maternal grandmother because of the security conditions in that country.
The father recalls that during his relationship with the mother his suggestion that the two of them might travel to Country B to spend time with her family was resisted by the mother who cited concerns about security, and particularly the risk of kidnapping.
The father observes that the current Smart Traveller advice for Country B[3] recommends “exercising a high degree of caution due to threats of violent crime and terrorism” and specifically that:
“Terrorist attacks remain a significant threat, even though security has improved. Attacks could occur anywhere and at any time in [Country B]”.
[3] I note that in evidence is the Smart Traveller advice for Country B current at 26 July 2024 (Exhibit A1).
The possible targets mentioned include:
·Government, military and police sites, or personnel
·Airports
·Public transport
·Nightclubs, hotels and restaurants
·Shopping malls
·Corporate facilities
The recent terrorist attacks mentioned include two attacks in 2022.
The father also notes the Smart Traveller advice that kidnappings occur in Country B, and that “criminals sometimes kidnap and murder foreigners. Most kidnappings are for ransom”. Smart Traveller mentions groups involved in kidnappings “such as crime groups in rural areas”. Further, that “express kidnapping” is a “problem in major urban areas, and virtual kidnappings have been reported.”. Smart Traveller advises that the Australian government “doesn’t make payments or concessions to kidnappers. Ransom payments to kidnappers have funded further terrorist attacks and criminal activity”.
In response to my observation that many countries are designated advice level 2, including popular holiday destinations such as Indonesia, the father’s counsel invited me to make a comparison between the specific risks identified for travel to Bali and those identified for Country B. The father’s counsel submitted that relatively speaking, Country B had a greater risk profile than Bali especially as it concerned the risk of kidnapping.
The father is also opposed to the children’s travel due to health concerns that he apprehends might particularly affect the child Y. It is the evidence of the father that Y has been diagnosed with autism, and other medical conditions. He notes (as is consistent with the mother’s evidence) that Y has never travelled overseas before, and the father is unsure as to the necessary medical recommendations that might apply to his travel. As far as the father is aware, Y’s treatment includes regular psychology, paediatric therapy, and speech therapy.
Allied to this concern is the father’s allegation that he has been shut out from seeing the children by the mother following their separation. The father refers to efforts made by him to arrange visits with the children which he says were not accommodated by the mother. The father last spent time with the children on Father’s Day 2023 (3 September) on which occasion the children appeared happy to see him.
The father acknowledged having been sent a letter on 11 April 2024 by the mother’s lawyer in which he was requested to provide his signature to the children’s passport applications. He refused this request because he was (as he is now) concerned about the proposed travel.
The father’s reservations about the proposed travel also reflect what he considers to be a paucity of detail provided about the health of the maternal grandmother and the accommodation details. In this regard, the father instructed his lawyer to send a letter to the mother’s lawyer on 2 July 2024 in which a request was made for additional information about the proposed travel including accommodation details, the children’s school reports and health updates. The father also sought some spend time with the children to occur, initially, each Sunday for four hours.[4]
[4] Annexure “MRP-2” to the father’s affidavit filed 14 July 2024.
In their responsive letter to the father, the mother’s lawyers provided the address of the maternal grandmother and identified this as the place where the children would be staying during the proposed travel. However, they also described the father’s request for medical certificates and school reports as “nonsensical given the short three-week duration of the proposed travel” and “disproportionate and inappropriate in these circumstances”. The father was assured that “all children are in good health and excited for the upcoming trip”.[5]
[5] Annexure “MRP-3” to the father’s affidavit filed 14 July 2024.
In a further letter sent by the father’s lawyer to the wife’s lawyers on 10 July 2024, a request was made for the names and contact details of the children’s current medical practitioners so that the father could make his own enquiries.[6] At the time of making his affidavit, the father had not received a response to this request.
[6] Annexure “MRP-4” to the father’s affidavit filed 14 July 2024.
The father’s resistance to the proposed travel also reflects a concern that the children would be travelling entirely during the school term and would miss 23 out of a total of 50 school days. The father was also concerned that the child Y might miss his regular medical appointments during the proposed travel period.
The father expressed a lack of conviction that the mother would maintain the children’s home in Australia. This view was said to reflect the actions of the mother since separation which included the failure of the mother to provide the father with information about where and with whom the children are living, the fact that the mother had told the children about the overseas travel without first obtaining the father’s agreement or a court order, the inaccuracy of the mother’s reporting about the status of intervention orders issued against the father, the lack of contemporary information about the health of the maternal grandmother, the refusal to facilitate visits between the children and the father, and the withholding of information by the mother about the children’s health and schooling.
At hearing, the father’s counsel submitted the mother had effectively withheld the children from the father since September 2023 and this conduct went to two issues relevant to this application. The first being that it might support a finding that the mother’s travel proposal was not bona fides and the second being that it constituted the relationship as one of high conflict which might incentivise the mother not to return from Country B with the children.
FURTHER INFORMATION PROVIDED BY THE MOTHER
In an affidavit filed on 23 July 2024 the mother provided information directed at the father’s concerns about the safety of travel, the health of the children and their capacity to cope with travel, and the children’s schooling.
As far as the safety of Country B is concerned, the mother acknowledges that Smart Traveller advises visitors to Country B to exercise caution. She deposes that her mother’s home in City D is hundreds of kilometres from the “do not travel” locations, although those locations are not identified. The mother deposes that the maternal grandmother’s house is in the same suburb as Country B political leaders and within an “extremely safe” gated and secured complex.
The mother provided the following information (in summary form) about the child Y:
·The mother had advice from Y’s [specialist] that Y has normal function and had been discharged from the medical department with no further appointments. This was supported by a letter from a paediatric specialist at N Hospital dated mid-2023.[7]
·The mother had advice from Y’s specialist that Y has normal function. At his last appointment, the specialist requested a follow up appointment in one year’s time, which is booked for early 2025. This was supported by a letter from a paediatric specialist at N Hospital dated mid-2023 who in addition to making observations about Y’s medical condition commented about Y’s language delay that it “has much improved with a lot of work from his mum, OT and [O Centre]”.[8]
·Y’s next paediatrician appointment is in late 2024.
·Y sees a psychologist monthly however due to the psychologist’s own overseas travel, he has not seen Y for two months.
·Y has fortnightly speech therapy sessions and is doing well. The mother conceded that if Y was to travel to Country B for four weeks that he might miss one of these sessions.
[7] Annexure “MSP-3” to the mother’s affidavit filed 23 July 2024.
[8] Annexure “MSP-2” to the mother’s affidavit filed 23 July 2024.
It was the mother’s evidence that each of the children had been seen by their doctor who had assessed their health for the proposed trip. She annexed to her affidavit what was described as a doctor’s certificate for each of the children dated mid-2024.[9] They recorded (in respect of each child) that they were medically fit to travel to Country B (sic) for 4 weeks.
[9] Annexures “MSP-6”, “MSP-7” and “MSP-8” to the mother’s affidavit filed 23 July 2024.
The mother addressed the issue of the children’s schooling by annexing a copy of the semester one school report for both X and Y.[10] The mother described both children as performing “at the expected level for his age and school level and doing well”. The reports are consistent with this appraisal.
[10] Annexures “MSP-9” and “MSP-10” to the mother’s affidavit filed 23 July 2024.
The mother annexed a letter from Z’s four-year old kindergarten teacher in which the teacher opined that “I do not believe the four-week holiday will affect Z’s learning development, and she will settle straight back in when she returns to Kinder”.[11]
LAW
[11] Annexure “MSP-11” to the mother’s affidavit filed 23 July 2024.
Overview
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (the Act).
Parenting orders are defined in section 64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child spends with another person; and
·the allocation of parental responsibility (for long term decision-making) in relation to a child.
The power of the Court to make a parenting order “as it thinks proper” is found in s 65D(1) of the Act.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of a child or children in parenting disputes depends on the particular circumstances in each case, as different circumstance require different responses.
Section 60CC(2) specifies the non-hierarchical criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests. The matters to be considered include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(b)the child; and
(c)each person who has the care of the child (whether or not a person has parental responsibility for the child);
(d)any views expressed by the child;
(e)the developmental, psychological, emotional and cultural needs of the child;
(f)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(g)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(h)anything else that is relevant to the particular circumstances of the child.
In contemplating the specified matters, s 60CC(2A) of the Act requires the Court to consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that currently or has previously applied to a child, or a member of the child’s family.
Section 60CG of the Act further requires a Court when considering what parenting order to make to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order that is in place.
There are no specific provisions in the Act relevant to permitting or restricting international travel, save for Subdivision E of Division 6 of Part VII – being the obligations under parenting orders related to taking or sending children overseas from Australia. That said, there are a large number of cases that have considered the issue of international travel: see Kuebler and Kuebler (1978) FLC 90-434 and Line and Line (1996) 21 Fam LR 259; (1997) FLC 92-729.
In considering whether to allow a parent to leave Australia with a child (or children), the Court may need to consider whether conditions should be imposed on the travel, depending on the circumstances of the case. This may include requiring the relevant parent to notify the other parent in advance and provide travel details. It may also include obtaining appropriate travel insurance for themselves and the children and restricting the travel to certain countries and/or ensuring that the children do not travel to countries that the Australian government’s Smart Traveller website would recommend against travelling to.
In addition, the case law would suggest that the Court should also consider:
·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 Hague Convention.
DISCUSSION AND FINDINGS
Safest arrangement
Pursuant to s 60CC(2)(a) of the Act the Court must have regard to that arrangement which would promote the “safety” of a child and those who have care of the child.[12]
[12] Whether or not a person has parental responsibility for the child.
In addition, the Court must also consider the capacity of a parent to ensure the safety of a child pursuant to s 60CC(2)(d) of the Act. This in turn requires a consideration of the capacity of each person who has or is proposed to have parental responsibility for the child (or children, in this case) to provide for the child’s developmental, psychological, emotional, and cultural needs.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
In this case, the father raises two concerns that require the Court to grapple with the concept of safety.
The first is responsive to prevailing security conditions in Country B which have prompted the Australian government to caution Australian travellers to “exercise a high degree of caution” (level 2).
As I indicated to the parties at hearing, I take judicial notice of the fact that a travel advisory of this level is not unusual in the present environment – for example, Thailand, Germany, Hong Kong, United Arab Emirates, Sweden, Denmark, Turkiye, United Kingdom – are all identified as level 2 destinations and for different reasons. The designation of Indonesia (which includes Bali) as level 2 is responsive to matters including the risk of terrorist attack, public protests and events, petty and violent crime, and kidnapping.[13] Ultimately however, a comparison between these two destinations (Country B and Bali) is of limited assistance in determining the questions thrown up by this application.
[13] Smart Traveller travel advice for Indonesia accessed on 26 July 2024.
I accept that there is an element of risk that inheres in any travel (whether that be domestic or international) but I consider also that risks of the kind that are identified in the travel advice for Country B can be mitigated (at least partly) by a travel arrangement that is predominantly for the purpose of visiting relatives (rather than attending tourist sites) and which will involve the mother and the children staying with people who live in Country B and can therefore be expected to have a better understanding of the matters that inform its risk profile and can be expected to be in a better position to take measures to avoid these risks. The fact that the mother and children will be staying in accommodation within a gated community provides a further level of comfort.
The second safety concern raised by the father (in my view quite legitimately) involves the health of the children but Y in particular. The mother was initially dismissive of this concern and provided scant information about Y’s health challenges and how they might be impacted by the proposed travel.
However, in her affidavit filed on 23 July 2024 the father’s concerns were taken seriously and, in my view, squarely addressed. It is certainly the case that Y has a range of medical conditions that require management. However, I am satisfied on the evidence that is before the Court that none of them create foreseeable risks to his travel and they appear to be well managed according to the current regime administered by the mother. This view is reinforced by the advice of the children’s GP that each one of the children is medically fit to travel and the fact that the children will be in the company of their mother who works and is qualified as a health care worker. It is also relevant that the children will be staying in City D which, according to the Smart Traveller advice, has private medical facilities of a reasonable standard.
I acknowledge that risk of non-return may never be discounted. However, I consider that the following considerations mitigate against the mother retaining the children in Country B:
(a)I consider that the proposed trip is bona fides and directed at the specific purpose of spending time with the maternal grandmother.
(b)Two of the children (Y and Z) are Australian citizens and the mother and the child X hold dual Australian and Country B citizenship.
(c)The mother has strong employment ties to Australia and gained her qualifications and experience in this country.
(d)The children are educated in Australia and there are plans for this to continue.
(e)The mother owns no assets in Country B.
(f)The mother has established a strong support network of health and allied health professionals to assist in the care of Y.
(g)The children are native English speakers and have spent all their lives in Australia.
By virtue of sections 60CC(2)(b), (c), (e) and (f) of the Act, the Court must have regard to a range of consideration that uniquely concern the child (see [53] above).
The mother proposes to limit the children’s stay in Country B to four weeks. While it is true that the timing of the proposed trip will likely coincide entirely with term 3 (although if travel is delayed for any reason it may encroach on part of the school holidays) I do not consider this will negatively affect the developmental, psychological, emotional, or cultural needs of any of the children.
To the contrary, the evidence before the Court is that the children are performing well at school and at the expected level and I am not persuaded that an absence of up to four weeks will alter their learning trajectory. The mother has acknowledged that Y might miss one session of speech therapy but in the scheme of things I do not consider this to be significant.
To the extent that the length of the proposed stay out of the jurisdiction might bear on the ability of the father to spend time with the children I acknowledge that it has been almost twelve months since he last spent time with them, and this is a matter that causes him distress. However, I accept the submission of the mother that in circumstances where the father is not presently having contact with the children, and any resumed contact would need to occur progressively and cautiously, that a further absence of four weeks would not do anything other than maintain the status quo. It seems to me that the issue of the father’s contact would be best revisited upon the return of the children and the mother to Australia at which time a focused approach might be taken to the issue.
The opportunity for the children to travel to Country B and to experience their Country B culture is a significant matter to be taken into account. The Court must also consider the benefits to the children of being able to spend time with their maternal grandmother who is clearly a significant and much-loved family member and on the evidence before the Court sadly has only limited time to live. The fact that the medical evidence before the Court is over twelve months old does not detract from this conclusion. The prognosis for the maternal grandmother is clearly poor.
As has been acknowledged in previous cases, decisions about international travel are difficult to make because no-one can foretell the future. However, insofar as history is often a guide to future events, I can discern nothing in the history of the mother’s conduct that should create apprehension about her proposed travel with the children. While it is regrettable perhaps that the mother was not forthcoming with information about the children until quite recently, I do not consider that this bears on her risk status. The father did not make any submission about the need for a security bond in a quantified amount and I do not consider that a payment of bond is necessary in the circumstances of this case.
I am satisfied that it is in the best interests of the children that they be permitted to travel with the mother to Country B for a maximum period of four weeks with the travel subject to the condition that the mother provide no later than 14 days prior to the travel a copy of full return airfares, all accommodation and details of travel insurance and a contact telephone number for the mother during the travel period. The travel will also be subject to the condition that the mother provide confirmation that she will not travel to any area within Country B designated as advice “level 3” or higher on the Smart Traveller website maintained by the Australian government.
The children do not presently have passports and it is my expectation that the father will cooperate in signing the documents necessary for the passport applications to be lodged in a timely fashion. However, the orders will include a mechanism for the passport applications to be executed without the involvement of the father if the cooperation is not forthcoming.
At hearing, the father continued to press for an order that the children be placed on the Airport Watch List and the mother sought an order that would restrain the parties from placing the children on the List.
The father identified the necessity for such an order as relating to the degree of conflict between the parties and his concern that the children had been told about the proposed travel to Country B before the father had been informed of the mother’s intentions. The mother submitted that there was no threat of her absconding identified.
Just as I am satisfied that the proposed travel to Country B does not present an unacceptable risk, I am satisfied that there is no basis for a more general apprehension that the mother might, at any time, remove the children from the Commonwealth. It is undeniable that the parents disagree about current parenting arrangements but that, of itself, does not establish risk of removal. The mother has strong ties to Australia and appears committed to maintaining this country as her (and the children’s) residence. While it might be regrettable that the mother told the children about her travel proposal ahead of the father this does not provide a proper basis for an order of the kind sought by the father.
Likewise, there is no necessity for a restraint of the kind sought by the mother. Generally speaking, a party cannot take steps unilaterally to place children on an Airport Watch List. Instead, an application would have to come before the Court, which would be decided on its merits at such time.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 29 July 2024
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