Raine & Raine (No 2)
[2024] FedCFamC2F 337
•20 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raine & Raine (No 2) [2024] FedCFamC2F 337
File number(s): ADC 1325 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 20 March 2024 Catchwords: FAMILY LAW – CHILDREN – final hearing – child aged three years – final consent orders made on all property and parenting issues save for the issue of overseas travel –where the parties have a dysfunctional co-parenting relationship – where Country B is the mother’s country of origin – where the mother seeks for the child to be able to travel with her on up to two occasions per year for a cumulative period not exceeding six weeks – where the mother seeks for the child to travel to a non-Hague Convention country – where the father seeks for travel to be conditional upon the child attaining the age of 10 years – consideration of recommendations of Family Report Writer – orders made as sought by the father. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B,
Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
Cases cited: Gin & Hang [2010] FamCA 617
Goode v Goode (2006) FLC 93-286
Kaur & Kaur [2014] FCCA 2843
Kuebler & Kuebler [1978] FamCA 26,
Line & Line [1996] FamCA 145.
Division: Division 2 Family Law Number of paragraphs: 104 Date of hearing: 9 February 2024 Place: Adelaide Counsel for the Applicant: Mrs Tinning Solicitor for the Applicant: Norman Waterhouse Counsel for the Respondent: Mr Wabnitz as Solicitor Advocate Solicitor for the Respondent: Daniel John Law Counsel for the Independent Children's Lawyer: Mr Frazer Solicitor for the Independent Children's Lawyer: Adelta Legal ORDERS
ADC 1325 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RAINE
Applicant
AND: MR RAINE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS:
1.That upon the child X born in 2020 (‘the child’) attaining the age of ten (10) years, the mother be permitted to remove the child from the Commonwealth of Australia on one occasion each year for a period not in excess of twenty-one (21) days provided the following conditions are satisfied;
(a)That pursuant to section 67ZD of the Family Law Act1975 (Cth), the mother deposit with the Registry Manager of the Federal Circuit and Family Court of Australia at the Adelaide Registry any Passport that she holds for the child or any other Passport which would enable the child to be removed from the Commonwealth of Australia;
(b)That the Registry Manager must hold any Australian Passport deposited in safe custody until the mother deposits the sum of FIFTEEN THOUSAND DOLLARS AND ZERO CENTS ($15,000) into the Federal Court of Australia Official SPM Exempt Litigants Fund.
(c)That upon the Registry Manager providing written confirmation of the receipt of the payment pursuant to paragraph 1(b) the Passport shall be released to the mother.
2.That the mother deposit with the Registry Manager of the Adelaide Registry of the Federal Circuit and Family Court of Australia the Passport released to her for the child within twenty-four (24) hours of her return to Australia;
3.That if the mother fails to return to Australia on the date stipulated by her without reasonable excuse, and upon proof by affidavit of such failure to return, the solicitors nominated by the father are authorised to apply for the release the money held in the Federal Court of Australia Official SPM Exempt Litigants Fund to the father;
4.That the mother shall:
(a)Provide the father with a copy of her itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for her and the child and the address at which they will predominantly be based, at least twenty-eight (28) days prior to scheduled departure;
(b)Provide to the father a copy of the return air tickets for the child;
(c)Provide a notarised letter executed by a notary public which states that the child is travelling to Country B for the specific travel dates solely for the purpose of a holiday and that the mother and the child are habitual and permanent residents and citizens of Australia and accepts that she must return the child to Australia by the specified return to date;
(d)Whilst overseas the mother shall facilitate the child to FaceTime/telephone the father on at least one occasion per week; and
(e)Facilitate make up time for the child to spend time with the father as soon as practical upon her return to Australia on dates to be agreed between the parties in writing and in default of agreement then during the weekend(s)/school holiday periods immediately following her return to Australia.
5.That paragraph 2 of the Order made on 7 April 2022 for an Airport Watchlist Order do remain in full force and effect up and until late 2030 whereupon the order for the Airport Watchlist Order shall be discharged.
6.That pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) the Australian Passport Office of the Department of Foreign Affairs and Trade issue a Passport in the name of the said child upon the filing of the appropriate completed application form exhibiting permission of the mother and with the mother to pay all such costs associated with the child’s Passport.
7.That the parties are at liberty to vary the orders made herein for the commencement date of overseas travel and the period of such travel on condition that any such variations are consented to and recorded by way of written communication between the parties’ respective solicitors.
8.That the appointment of the Independent Children’s Lawyer is hereby discharged.
9.That all outstanding applications are hereby dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
The Applicant Mother, Ms Raine (‘the mother’) and the Respondent Father, Mr Raine (‘the father’) are the parents of one child namely X born in 2020 (‘X’) now aged three years.
These Reasons for Judgment concern a controversy over one discrete issue namely the issue of overseas travel for the mother with the child. This issue requires the Court's determination because the parties, although in agreement about major matters, remain at an impasse.
Despite the final consent orders made on 5 February 2024 in relation to the child’s care, the parties remain polarised on this topic. The Court observes that the past two years of litigation have done nothing to improve the mistrust and animosity that each has for the other.
Each of the parties were cross-examined at Trial and represented by a legal practitioner. The Court was also assisted by an Independent Children’s Lawyer for X.
BACKGROUND
The mother was born in 1992 in Country B and is currently aged 31 years. She works as an allied health worker and currently earns $1,130 gross per week from her income, Centrelink payments and modest child support.
The father was born in 1974 and is currently aged 49 years. The father identifies as an Indigenous Australian. He says that he is unemployed and receiving Job Seeker payments of $380.95 per week.
The parties met in 2014 whilst the mother was residing in Country B when the father was on holiday. The parties quickly formed a relationship and the mother moved to Australia in 2015 whereupon the parties commenced cohabitation in the father’s residence at Town C in the State of South Australia. The parties were married in 2018.
X was born in 2020.
The parties separated in November 2021 when the mother vacated the former matrimonial home taking X with her.
Following mediation, the parties reached an agreement to share the care of X. That arrangement quickly broke down after the father retained X in his care when the mother refused to disclose her new residential address.
The parties have been engaged in highly conflicted litigation since the mother filed her Initiating Application for Final Orders on 29 March 2022. An Independent Children's Lawyer was appointed for X. A Family Assessment Report was commissioned by clinical psychologist, Ms D dated 27 November 2023 (‘the Family Report’).[1]
[1] See the Family Assessment Report prepared by Ms D dated 27 November 2023.
The family have had high level exposure to and involvement with the South Australian Police and the Department for Child Protection. The father obtained a private ex parte Intervention Order[2] against the mother which remained contested and was proceeding to Trial in Court. As part of the final consent orders for X in this Court, the Intervention Order is to be discharged and the application withdrawn by the father.
[2] The father was represented by a solicitor and not SAPOL in the Intervention Order proceedings.
The parties competing applications for property settlement and parenting orders were listed to commence for Trial before the Court on 5 February 2024 for five days.
The parties resolved all issues in relation to X by way of final consent orders on 5 February 2024 save for the mother’s application to travel overseas with X. The father opposes the mother removing X from the Commonwealth of Australia. At Trial, the father did not seek any orders for overseas travel in his own right.
The terms of the final parenting orders provide, inter alia, for X to remain living with his mother who shall have sole parental responsibility for his care. X is to spend increasing amounts of time with his father culminating with an end point of four nights per fortnight, half school holidays, and special occasions.
In early 2024, the parties resolved the issue of property settlement. The final consent orders provide for the father to pay to the mother a settlement sum of $110,000 and he to then retain his property at Town C. The parties have also agreed to an equalisation of superannuation.
These Reasons are directed to resolving the one remaining issue in dispute being the mother’s application to travel overseas with X.
DOCUMENTS RELIED UPON
The mother relied upon following documents:
(1)A Minute of Order setting out the orders sought at Trial marked ‘Exhibit Ms R2’;
(2)A Financial Statement filed on 21 December 2023;
(3)A Trial Affidavit filed on 22 December 2023 and annexures 46, 47 and 49 respectively;
(4)An Affidavit in Reply filed on 4 February 2024;
(5)A Costs Notice filed 29 January 2024 and
(6)An Outline of Case document tendered on 9 February 2024.
The father relied upon the following documents:
(1)A Trial Affidavit filed 30 January 2024;
(2)The Family Report of Ms D dated 27 November 2023;
(3)A Draft Minute of Order dated 9 February 2024 and marked ‘Exhibit Mr R3’;
(4)A Costs Notice filed 4 February 2024 and
(5)An Outline of Case document filed 4 February 2024.
The Independent Children’s Lawyer relied upon the following documents:
(1)The Family Report of Ms D dated 27 November 2023;
(2)A Draft Minute of Order dated 9 February 2024 and marked ‘Exhibit ICL1’ and
(3)An Outline of Case document filed 2 February 2024.
The parties each gave evidence and were cross-examined at Trial. The Family Assessment Report of Ms D, psychologist, was before the Court by consent of all parties and without the need for the author to be cross-examined.
ORDERS SOUGHT BY THE PARTIES
The Mother
The mother sought the following orders:
Watch List
1.The Court direct that forthwith the Australian Federal Police, their agents and servants remove [X] born [in] 2020 (the child) from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
Passports
2.Within seven (7) days of the date of this order, the father do surrender and deliver up to the office of the mother's solicitors all passports held by him for the child.[3]
[3] It was an agreed position at Trial that X does not have an Australian Passport.
3.In the event that the father fails to surrender and deliver up to the office of the mother's solicitor all passports held by him for the child within seven (7) days of the date of this order, the mother be and is hereby permitted to direct the Department of Foreign Affairs and Trade to immediately cancel any existing Australian passport for [X] born [in] 2020 as held by the father and that the requirement of the father to consent to the same is hereby dispensed with.
4.The mother be the sole parent permitted to obtain an Australian Passport in the name of [X] born [in] 2020 with the Department of Foreign Affairs and Trade and to renew any passport for the child at her cost and expense and that she be hereby authorized by virtue of this Order to dispense with the need to obtain the father's written consent on any passport application for [X] or application to renew any passport for the child and the mother be at liberty to provide a copy of the un-anonymised version of this order to the Passports Office of the Department of Foreign Affairs and Trade for the purpose of facilitating the same.
5.The child's passport shall be held by the mother unless otherwise ordered by the Court.
Overseas travel
6.For the purposes of section 65Y of the Family Law Act the mother be at liberty to travel with the child [X] born [in] 2020 outside the Commonwealth of Australia for holidays on up to two (2) occasions per year PROVIDED THAT:
6.1.The mother provide the father with no less than sixty (60) days' notice of the intended travel, save and except in the case of an urgent situation including, but not limited to, the serious illness or death of one of the mother's family members and, in such a case, the mother shall give the father as much notice as reasonably possible.
6.2.The mother provide to the father not less than thirty (30) days prior to the intended travel, the following:
6.1.3.Written details of the names and places outside of the Commonwealth of Australia where it is proposed the child will be travelling (being countries, cities and towns) and any addresses at which the child will be staying; and
6.1.2.A copy of all return airline tickets (which is satisfied by the provision of an online screenshot of any e-ticket) for the child evidencing the child's proposed departure and return to the Commonwealth of Australia.
6.1.3. A notarized letter acknowledging the following:
a)that the child [X] born [in] 2020 is an Australian citizen;
b)that [X]'s habitual place of residence is Australia;
c)the date on which the child is to leave the Commonwealth of Australia and date on which he is to return;
d)the fact that the travel to [Country B] is for the purpose of a holiday;
e)that the mother accepts that she must return him to Australia at the conclusion of the stated travel period.
6.3.The cumulative length of overseas travel (up to two occasions per year) does not exceed a total period of six (6) weeks with the mother to be at liberty to travel with the child during the Christmas period (being Christmas Day, New Years Eve and the child's birthday) no greater frequency than each second (2nd) year;
6.4. Such travel only occur to:
6.4.1. [Country B]; OR
6.4.2.A country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction that is in force with Australia (save and except for the purpose of transiting and the mother shall be restrained from leaving the airport in the transit country).
6.5.In the event the mother is travelling with the child to [Country B] the mother shall deposit the sum of $10,000 AUD as a bond ("the bond") to the Federal Court Litigants bank account to be held on trust by the Federal Circuit and Family Court of Australia Adelaide Registry ("the Court");
6.6.The bond paid by the mother in accordance with paragraph 6.5 herein be held by the Court until such time as the Court receives written confirmation from the mother that the child has returned to the Commonwealth of Australia together with a copy of the child's boarding pass (or electronic copy equivalent) and thereafter the Court, by this Order, release the bond to the mother.
6.7.That in the event the mother does not return to the Commonwealth of Australia within ten (10) days of the scheduled return date, then the Court by this Order shall release the bond to the father, except in the case where the Court is informed in writing supported by written documentation (including electronic documentation) that that the delay of the mother's return to Australia is due to a matter outside of her control including but not limited to a natural disaster or a cancelled or delayed flight/s.
6.8.Any order providing for [X] to spend time in the father's care pursuant to the Order made 5 February 2024 be suspended during any period in which [X] is travelling overseas.
6.9.The mother shall ensure the child communicates with the father on no less than one occasion per week via telephone or other electronic communication;
6.10.The mother shall provide make-up time to the father equivalent to the number of nights missed as a consequence of overseas travel with such make up time to occur on the following basis:
6.10.1.The make-up time occur on dates to be agreed, or failing agreement either in the month immediately prior to or the month following the child's return from overseas, or in the event same is impracticable and the child is of school age, during the next school holiday period;
6.10.2.The make-up time be facilitated in a manner such that the number of consecutive nights in the father's care (by way of make-up time) not exceed the maximum number of consecutive nights the child has spent with the father as at that date pursuant to the orders, noting that several blocks of make-up time might be required to compensate the father for the overall number of nights missed as a consequence of the overseas travel.
6.11.The (sic) For the purposes of section 65Y of the Family Law Act the mother be permitted to remove the child from the Commonwealth of Australia for the purpose of any School Overseas trip arranged by the child's school for students, provided the mother give the father not less than 30 days prior written notice and provide to the father information from the school as to the proposed travel location, flights and accommodation (and such travel time shall not be considered part of the six (6) weeks the mother is permitted to travel with the child in accordance with paragraph 1 above) and that for the purpose of such travel the requirements of paragraph 6.5 and 6.10 be dispensed with.
7.That the appointment of the Independent Children's Lawyer be discharged.
8.Pursuant to Sections 62B and 65DA of the Family Law Act 1975 (as amended), 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 the document attached hereto.
The Father
The father sought the following orders:
1.That upon the child [X] born [in] 2020 attaining the age of 10 years the mother be permitted to remove the child from the Commonwealth of Australia on one occasion every year for a period not in excess of 21 days provided the following conditions are satisfied;
a.pursuant to section 67ZD of the Family Law Act, the mother deposit with the registry manager of the court at the Adelaide registry any passport that she holds for the child or any other passport which would enable the child to be removed from the Commonwealth of Australia;
b.that the registry manager must hold any Australian passport deposited in safe custody until the mother deposits the sum of $15,000 into the trust account of the father's nominated lawyer;
c.That upon the registry manager receiving written confirmation from the father's nominated lawyers of the receipt of the payment pursuant to paragraph (b) the passport can be released to the mother.
d.That the mother deposit with the registry manager of the court at Adelaide the passport released to her for the child within 24 hours of her return to Australia;
e.that if the mother fails to return to Australia on the date stipulated by her without reasonable excuse, that lawyers nominated by the father are authorised to release the money held in the trust account to the father;
f.that the mother shall:
i.provide the father with a copy of her itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for her and the child and the address at which they will predominantly be based at least 28 days prior to scheduled departure.
ii.provided to the father a copy of the return air tickets for the child;
iii.provide a notarised letter executed by a notary public which states that the child is travelling to [Country B] for the specific travel dates solely for the purpose of a holiday there but is an habitual and permanent resident and citizen of Australia and accepts that she must return him to Australia by the specified return to date;
iv.during the trip arrangement for the child to face time/telephone the father on at least one occasion per week; and
v.facilitate make up time for the child to spend time with the father as soon as practical upon her return to Australia as agreed between the parties and in default of agreement then during the weekend(s)/school holiday periods immediately following her return to Australia.
2.That the mother otherwise be restrained, and an injunction is granted restraining her from removing the child from the Commonwealth of Australia.
The father's counsel submitted that the injunction in paragraph 2 was in addition to the current Airport Watchlist Order remaining in full force and effect.
The Independent Children’s Lawyer
The Independent Children's Lawyer sought the following orders:
1.That the mother be permitted to remove the child from Australia for travel to [Country B] on one occasion in each year for a period of no more than 21 days but subject to the following conditions:
a.that pursuant to section 67ZD of the Family Law Act the mother deposit with the registry manager of the court at the Adelaide registry any passport that she holds for the child or any passport which would enable the child to be removed from the Commonwealth of Australia;
b.that the registry manager must hold any Australian passport deposited in safe custody until the mother deposits the sum of:
i.$55,000 in the 2024 calendar year;
ii.$30,000 in the 2025 calendar year and thereafter
iii.$15,000
into the trust account of the father's nominated lawyer.
c.That upon the registry manager receiving written confirmation from the father's nominated lawyers of the receipt of the payment pursuant to paragraph 2 (b) the passport can be released to the mother.
d.That the mother deposit with the registry manager of the court at Adelaide the passport released to her for the child within 24 hours of her return to Australia
e.that if the mother fails to return to Australia on the date stipulated by her without reasonable excuse, that lawyers nominated by the father are authorised to release the money held in the trust account to the father.
f.That the mother shall:
i.provide the father with a copy of her itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for her and the child and the address at which they will predominantly be based at least 28 days prior to scheduled departure.
ii.provided to the father a copy of the return air tickets for the child;
iii.provide a notarised letter executed by a notary public which states that the child is travelling to [Country B] for the specific travel dates solely for the purpose of a holiday there but is an habitual and permanent resident and citizen of Australia and accepts that she must return him to Australia by the specified return date
iv.during the trip, arrange for the child to face time/telephone the father on at least one occasion per week and keep the father informed of any changes to the travel or flight details (if any);
v.facilitate make up time for the child to spend time with the father as soon as practical upon her return to Australia as agreed between the parties and in default of agreement then during the weekend(s)/school holiday periods immediately following her return to Australia.
In addition to the orders set out in ‘Exhibit ICL-1’ the Independent Children's Lawyer proposed that there be orders for X to obtain an Australian passport and for the Airport Watchlist Order to be lifted during periods when the mother travels overseas.
Neither party nor the Independent Children’s Lawyer raised any issue with respect to the safety of Country B as a destination by reference to the Department of Foreign Affairs and Trade (‘DFAT’) travel advisory service known as ‘Smart Traveller.’
It is common ground that Country B is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the Hague Convention’).
THE MOTHER’S POSITION
The mother’s position is easily understood. She maintains that it would be in X’s best interests to permit him to travel to Country B to meet his maternal family and experience the culture “firsthand.” To date, X has only interacted with his maternal family (save for a maternal uncle who lives with the mother and X in Adelaide) on video calls. The mother is one of several children (some of whom are half siblings) and some of her siblings continue to reside in Country B.
The mother and X are both Australian citizens.
The mother also alleges that the maternal grandmother is not in good health. Her health issues, combined with a lack of financial resources, are said to make it difficult for the maternal grandmother to travel to Australia. There was no independent evidence of the maternal grandmothers’ health before the Court.
The mother offers to pay a bond into Court and to abide by any other conditions of the Court considered necessary to permit her and X to travel to Country B.
In her oral evidence, the mother confirmed that her brother, Mr E is currently in Australia on a Visa. He is working as a tradesperson and aspires for permanent residency. His wife and three children still reside in Country B but ultimately hope to move to Australia permanently.
The mother denied ever threatening the father with the words that he would “never find [X] again” if she was permitted to take X to Country B. The mother says that she enjoys living in Australia where she has a stable job, good health care and education and housing. The mother contends that X “...will be able to have a better life in Australia.”[4] She agreed that she is missing her family but denied ever having a thought about moving back (to Country B).
[4] See the Trial Affidavit of Ms Raine filed 22 December 2023 at paragraph 326.
The mother asserted that during their relationship, the parties had supported X travelling overseas but acknowledges that such travel never occurred prior to separation. Under cross-examination, the mother denied the specific threat in the father’s affidavit that she would take X overseas permanently and away from the father. She confirmed again that her only wish was for X to meet her family and “experience life” in Country B.
The mother was cross-examined about the purchase of a property in Country B in 2021. The mother paid a small deposit for the purchase of this property which was being developed off plan. She conceded having wanted to do so, to enable the parties to stay in a “safe and comfortable” accommodation when on holiday. Whilst not on holiday, it had been the mother’s intention for the property to be occupied by the maternal grandmother. Some rather confusing cross-examination then took place wherein the mother stated that she had not signed a contract to purchase the property and had ultimately not proceeded with the purchase because she could not afford to do so. The mother agreed in her oral evidence that the email dated mid-2023 advising that the buyer’s account had been cancelled, was not addressed to her but rather to an email address being “…” and that there was nothing in the email that personally identified her.[5]
[5] See the Trial Affidavit of Ms Raine filed 22 December 2023 at Annexure Ms R47.
The mother also agreed that prior to separation, she had transferred (in multiple transactions) the sum of $49,000 to her family in Country B.[6] She alleged that the father was aware of all transactions which came from her personal account. She denied that the father had only become aware of the transactions after he had issued a subpoena to the ANZ Bank.
[6] Annexure Ms R46 to the Trial Affidavit of Ms Raine filed 22 December 2023 states a total of $35,897.69 and the Trial Affidavit of Mr Raine filed 30 January 2024 states the sum of $88,98.
The mother’s friendship with a ‘Ms F’ had become a focus of concern for the father during the proceedings. The mother says that she met Ms F in early 2022 (sic) shortly after separation. Since about early 2020, Ms F has purportedly paid legal fees on behalf of the mother through a charitable company, G Pty Ltd.[7] The mother states that there is no formal loan agreement between herself and Ms F/G Pty Ltd. Rather, there is verbal agreement that the mother will repay “some of my legal costs” when she receives her property settlement from the father.[8] In addition Ms F has loaned the mother money for personal living costs and expenses totalling approximately $25,000 which the mother says will also be repaid from her property settlement sum.[9]
[7] See the Trial Affidavit of Ms Raine filed 22 December 2023 at paragraph 407.
[8] See the Trial Affidavit of Ms Raine filed 22 December 2023 at paragraph 407.
[9] See the Trial Affidavit of Ms Raine filed 22 December 2023 at paragraph 408.
The mother confirmed in her oral evidence that she owed G Pty Ltd/Ms F the sum of $163,000. This sum is not the subject of a formal loan agreement nor is there any formal agreement for her to repay. The mother Costs Notice filed 29 January 2024 shows total fees and disbursements to the mother’s solicitors of $226,004.50 of which $163,380.47 had been paid by G Pty Ltd/Ms F on the mother’s behalf and with the sum of $58,345.03 outstanding.
Under cross-examination by the Independent Children’s Lawyer, the mother stated that it was her wish to travel overseas from 2024 and ideally for more than two weeks at a time. She agreed that it was open to her to use some of the money to be paid to her by the father as a settlement sum towards the security for this year. Otherwise, the mother wants to repay Ms F for the legal fees advanced and use some of the money as a deposit to buy a home. When asked which of these things was more important, the mother stated that the overseas travel was the most important. The mother stated that her offer of $10,000 as security was because this was a sum that she considered she could afford when working whereas the sum of $55,000 as sought by the Independent Children’s Lawyer “…is a lot of money.”
The mother identified that she had supported X’s relationship with the father and acknowledged that if she was to remain in Country B then this would have a deleterious impact on X.
The mother acknowledged that the Family Report recommended that there should be no overseas travel until X is a teenager. She also recognised that in seeking up to six weeks of travel per annum, it would involve large amounts of make-up time to the father.
In her final address, the mother’s counsel submitted that the recommendation in the Family Report was “thinly supported” and had been made at a point in time when the parties had not yet filed their Trial material.
The mother’s counsel submitted that X had a close relationship with each of his parents. It was argued that the father’s position was difficult to follow in opposing travel to Country B now but not when X reached 10 years of age. In response to an assertion that the mother’s family could travel to Australia, it was submitted that the mothers’ family could not afford to do so. In relation to make up time, it was argued that the time could be made up in whatever configuration the Court considered was in X’s best interests including over the Christmas school holidays.
The mother’s counsel submitted that the documents before the Court on the proposed property purchase by the mother in Country B spoke for itself and that the father still had not “let go of it” despite evidence to the contrary.
It was conceded that the offer of security in the sum of $10,000 would not cover the father’s expenses if the mother failed to return to Australia with X but she argued that the father has “resources available to him” – without actually identifying what those resources might be. At its highest, the mother’s counsel submitted that any security should be for $55,000 as proposed by the Independent Children’s Lawyer for the 2024 year only. The mother supported any security being paid into the Court and not the father’s solicitors trust account.
It was submitted that the mother had existing ties to Australia and that she had worked hard to assimilate into Australian society. She is now an Australian citizen. The mother acknowledged in her evidence the benefits of living here. Her counsel argues that her evidence provided a strong basis for assuming that the mother views Australia as her permanent home.
Further, it was submitted that the mother has supported X’s relationship with his father and that the mother would jeopardise her role as X’s primary caregiver should she remain overseas contrary to Court order.
Finally, the mother’s counsel acknowledged that the frequency and length of proposed travel as sought by the mother may be “too much” but submitted that the Court was not bound to accept the proposals of the parties.
THE FATHER’S POSITION
The father’s position is succinctly summarised in one paragraph of his Trial affidavit as follows:
As to paragraphs 324, 325, 326 and 327, I opposed to the mother travelling to the [Country B] with [X]. The mother has previously threatened to flee to [Country B] and not return [X]. There is no agreement between Australia and [Country B] that is capable of ensuring that the child returns once he has left Australia.[10]
[10] See the Trial Affidavit of Mr Raine filed 30 January 2024 at paragraph 591.
During his evidence in chief, the father agreed that he had travelled to Country B on three separate occasions with the last such trip being in 2015 and with the longest of these trips being for a period of five days. He conceded having met the mother’s family briefly but did not know where they lived.
At Trial, the father’s solicitor agreed that he had initially been opposed to overseas travel but had now put forward a proposal which he considered in line with the recommendations contained in the Family Report. The father stated that he was more confident with X travelling at 10 years of age because he would “have a voice” and would be able to contact his father if he needed help.
The father contended that the mother had made four separate threats to remove X back to Country B during the relationship. He was challenged about where those threats were identified in his Trial affidavit. The father conceded that the “multiple occasions” were not set out in his affidavit because he had “limited time to prepare it.”[11]
[11] The Court does not accept this evidence. The father had ample time to prepare his Trial documents.
He remained concerned that the mother still owned property overseas. The father acknowledged that in mid-2021 the mother informed him that she had purchased a property in Country B.[12] He denied that the mother had advised him of her decision not to proceed.[13] Eventually, the father conceded under cross-examination that the email dated mid-2023 appeared to confirm that the contract had been cancelled.[14] The father’s answers suggested, however, that he remains suspicious about the contract and why it is that the name “Ms F” appears in the emails and not the mother’s. He stated that the mother had no assets or commitments here in Australia which would provide an incentive for her to return. It remains the father’s case that the mother has moved income and savings “offshore” during their relationship.[15] He maintained a concern that the mother would “run-away” with the settlement sum.
[12] See the Trial Affidavit of Mr Raine filed 30 January 2024 at paragraph 155.
[13] See the Trial Affidavit of Mr Raine filed 30 January 2024 paragraph 647.
[14] See the Trial Affidavit of Ms Raine filed 22 December 2023 at Annexure Ms R47.
[15] See the Trial Affidavit of Mr Raine filed 30 January 2024 at paragraph 157.
The father’s concerns about the nature of the mother’s financial relationship with Ms F is addressed in paragraphs 190 to 204 of the father’s Trial Affidavit. He remains highly suspicious about why it is that Ms F has advanced the mother not insignificant sums of money in the absence of any formal documentation and why her name is on an email connected with the purchase of property in Country B.
Ms F was initially foreshadowed by the mother as a witness at Trial in the order made on 1 August 2023 but ultimately, did not file a Trial affidavit.
The father initially denied being aware of the mother’s bank transfers back to her family during their relationship and maintained that he only became aware of money being sent back to Country B after a subpoena had been issued by him. He later recanted on this evidence and conceded that he had been provided with the mother’s bank statements prior to issuing a subpoena to the ANZ bank:
COUNSEL: I’m putting to you in that process [of discovery] well prior to you issuing the subpoena, my client disclosed bank statements which showed, if you read them, transfers to [Country B]. Do you accept that?
FATHER: Yes.[16]
[16] Taken from Transcript of the hearing on 9 February 2024.
The father is of the view that X is of a vulnerable age and cannot communicate well. The father has no personal contacts in the Country B to help him if the mother overstayed with X.
The father agreed that X should have exposure to and learn about Country B culture which he considered X could experience here in Australia.
The father denied being aware that the mother was one of several siblings stating in his evidence that as far as he was aware the mother only had two siblings.
The father agreed that X did not have an Australian Passport.
The father agreed that the mother had never complained about living in Australia and that during their marriage the parties had talked about enrolling X in a local school.
The father stated that he would also like the opportunity to travel with X when he is over 10 years of age but confined his future travels to countries that were signatories to the Hague Convention.[17]
[17] This answer ignored the fact that the father had no application to travel overseas at Trial.
In his final address, the father’s solicitor urged the Court to place reliance upon the recommendations in the Family Report. It was submitted that the mother had not sought to cross-examine Ms D and that her recommendations were unchallenged. The father’s solicitor submitted that the mother is a “significant flight risk” reflected in the transfer of funds to family overseas and her desire to purchase property. The father was said to have no contacts in Country B to help him if the mother retained X and that X is too young to communicate his whereabouts or his distress. The father submitted that it was an oddity that the mother had sought to purchase a holiday home in Country B when the parties had not holidayed there since 2015. Further, it was “of concern” that for the 2021 financial year, when the father’s income was low, the mother had continued to send money back to her family in Country B.
THE INDEPENDENT CHILDREN’S LAWYER’S POSITION
In the Outline of Case Document, the Independent Children’s Lawyer sought an order “subject to evidence” that both parties be restrained by way of injunction from removing X from the Commonwealth of Australia without the prior written consent of the other party.[18]
[18] See the Outline of Case Document filed by the Independent Children’s Lawyer on 2 February 2024 at paragraph 5. (f).
The position of the Independent Children’s Lawyer had modified by the Trial such that the Independent Children’s Lawyer proposed the orders sought out in paragraph 25 herein as being in X’s best interests.
In his final address, counsel for the Independent Children’s Lawyer submitted that X should be permitted to travel and that such overseas travel should not be delayed despite what was recommended in the Family Report.
The Independent Children’s Lawyer recognised that this is a matter involving a high level of conflict. The Independent Children’s Lawyer did not consider that there was sufficient evidence to find that the mother owns real estate in Country B. The Independent Children’s Lawyer submitted that the risk now is the same as what it would be when X turns 10 years of age.
The Independent Children’s Lawyer did not support overseas travel for up to six weeks per annum observing that this would involve too much make up time. The Independent Children’s Lawyer submitted that one period of overseas travel each year for three weeks would be sufficient to enable the mother and X to travel to Country B and for the parties to make up time upon her return.
The Family Report dated 27 November 2023
The parties obtained a private Family Report from Ms D, Clinical Psychologist (‘the Report Writer’) dated 27 November 2023. As part of the report process, the Report Writer interviewed each of the parties, undertook observed interactions and was provided with an agreed list of documents.
The Report Writer observed both parents referring to the other’s communication post‑separation as problematic “(e.g. disrespectful, inappropriate, abusive text messages, messages being sent late at night, inappropriate numbers (sic) of messages being sent)”.[19]
[19] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 2.
Difficulties managing X’s medical care were noted with each parent seeking their own medical opinions resulting in inconsistent care being provided.[20]
[20] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 4
On the ‘parenting alliance measure’, the mother’s results fell into the lowest dysfunctional range requiring the most change for the co-parenting relationship to function within normal limits.[21]
[21] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 13.
At interview, the mother opposed the father knowing of her residential address or the childcare that X attends expressing a concern to the Report Writer that the father may drive past their home again or attempt to remove X from childcare.[22]
[22] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 14.
In relation to finances, the mother told the Report Writer that she was receiving support from Ms F who was said to be paying for the mother’s legal costs and had offered to pay for X to attend H School. The mother was reported as providing a “lengthy account’ of how she met Ms F which “did not clarify how that occurred or who [Ms F] is or why she is involved in the mother’s financial affairs or had in the past sent messages to [Mr Raine] on her behalf.”[23]
[23] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 14.
The mother also spoke of her large family in Country B and of wanting X to meet them as well as to learn of the differences between Country B and Australian culture. At interview, the mother identified there being “safety and wider opportunities available in Australia, particularly for education but of people in [Country B] being grateful for all they have and of caring more for their older generations.”[24]
[24] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 14.
At interview, the father told the Report Writer that he had held concerns about the mother’s parenting since X was an infant. The father described himself as a “good communicator” but conceded that his attempts to co-parent with the mother had been unsuccessful. On the ‘parenting alliance measure’, the father’s results placed the quality of the co-parenting in the lowest dysfunctional range.[25]
[25] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 15.
The father was said to be clear that he did not support X travelling to Country B with the mother due to comments that she had allegedly made in the past to the effect that he would “never find [X] again.” At interview, the father considered that when X is 18 years of age, he could choose to travel to Country B if he wished to do so.[26]
[26] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 16.
Under the heading ‘Opinion and Recommendations’, the Report Writer observed that X had sought comfort and closeness from each parent. She opined that the descriptions from both parents of X struggling emotionally at handovers and of him making comments of concern suggested that:
…the continuing demands of moving between two markedly different parents in a high conflict situation, and of having experienced such inconsistent care across his early years, are impacting upon his capacity to cope…[27]
[27] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 17.
It was the view of the Report Writer that both parents presented as having contributed to the significant difficulties and vulnerabilities of the situation.[28]
[28] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 17.
The Report Writer expressed a concern at a “possible pattern” of the mother forming highly intense relationships quickly in her life “(e.g. the father, reported a working relationship with “Mr J”, Ms F)” and of her decision to move from Town C to suburban Adelaide.
The Report Writer observed that the father seemed to have had difficulty accepting that whatever treatment he may have received from the mother and Ms F, it did not constitute abuse. Further, that the bruising X had after periods of time with his mother was not considered by DCP to be evidence of abuse.[29]
[29] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 17.
The Report Writer was of the view that due to X’s young age, the dysfunctional co-parenting relationship, the lack of consistent medical care, the distance between X’s two homes and the history of conflict did not support anything other than primary care with one parent. Recommendations were made for X to live with one parent and spend increasing time with the other subject to findings made by the Court at Trial. Relevant to the current dispute the Report Writer considered that:
No international travel is supported for either parent in the coming years given the instability in care [X] has already received. If once he is a teenager, the Court is satisfied conditions can put in place to ensure his return, it would be supported then that [X] can travel internationally with either parent on an equal basis.[30]
[30] See the Family Assessment Report prepared by Ms D dated 27 November 2023 at page 19.
APPLICABLE LEGAL PRINCIPLES
The standard of proof applicable to these proceedings is on the balance of probabilities.[31]
[31] Evidence Act 1995 (Cth).
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) deals with the law relating to the arrangements for the care of children. The question of whether a child should or should not travel overseas is capable of being the subject of a parenting order, particularly as the parents concerned are unable to resolve this issue themselves.[32]
[32] Family Law Act 1975 (Cth) s 64B(2)(h) and (i).
In any parenting application the best interests of a child concerned are the paramount consideration.[33]
[33] Family Law Act 1975 (Cth) s 60CA.
In considering whether it is in X’s best interests to travel outside of Australia the Court must address a number of aims and principles. Section 60B(1) of the Act sets out the objects of the legislation as follows:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin the objects, are set out in section 60B(2) of the Act and are as follows:
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(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 bracket (such as grandparents and other relatives); and
(c)Parents jointly shared duties and responsibilities concerning the care, welfare, and development of their children; and
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC of the Act directs the Court to consider a long list of factors. The primary considerations involve the Court needing to ensure that the child concerned has a meaningful relationship with both parents and secondly to ensure that the child is protected from harm, both physical and psychological, which may arise if the child is exposed to any kind of abuse or neglect including family violence.
The Court is now directed by section 60CC(2A) of the Act to give greater weight to protecting a child from abuse and neglect and family violence.
Section 60CC(3) of the Act sets out a long list of considerations that the Court must consider dependent on the particular circumstances of the case concerned. In this case, I consider that the following additional considerations need to be brought to account in reaching a final decision said to be in X’s best interests:
·The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) – Section 60CC(3)(b);
·The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and spending time and communicating with the child – Section 60CC(3)(c) (i) and (ii);
·The likely effect of any changes in the child circumstance, including the likely effect on the child of any separation from either of his parents – Section 60CC(3)(d);
·The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis – Section 60CC(3)(e);
·Parental capacity and attitude to the responsibilities of being a parent – Section 60CC(3)(f) and (i);
·The child’s age and background including aspects of lifestyle traditions and culture including in this case the child’s right to enjoy his Aboriginal culture and the likely impact any proposed parenting order will have on that right – Section 60CC(3)(g) and (h); and
·Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child – Section 60CC(3)(l).
In cases such as this one, which involves overseas travel to a country that is not a signatory to the Hague Convention, the Court must be mindful of the potential impact that such travel may have on the child’s right to have a meaningful relationship with the other parent. Should a parent elect to remain overseas contrary to Court order and out of reach from authority, this will have a serious impact on the relationship with the parent left behind.
In Kuebler & Kuebler,[34] Ache SJ stated as follows:
In my view, the considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these:
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; and
e.The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to jurisdiction would be honoured.
[34] Kuebler & Kuebler [1978] FamCA 26, [15] (Ache SJ).
In Line & Line,[35] the Full Court identified “obvious considerations” in any case involving overseas travel:
(a)The existence of 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 here of close family or friends);
(b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues);
(c)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, the residence of close family and/or personal friends);
(d)Whether the country of travel is a signatory to the Hague Convention; and
(e)The financial circumstances of the parties.[36]
[35] Line & Line [1996] FamCA 145.
[36] Line & Line [1996] FamCA 145, [4.49] - [4.51].
As Justice Cronin said in Gin & Hang:[37]
Decisions about international travel are difficult to make because no one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that is presented.
[37] Gin & Hang [2010] FamCA 617.
Further and as was recognised by the Court in Kaur & Kaur:[38]
Overseas travel, for young children, particularly to a non-Hague Convention country, is potentially a high-stakes game, with no margin for error. As such, the court, in making its leap of faith should not jump precipitately, into the dark, on the basis of untested or incomplete evidence, particularly if the need for travel in question is not a particularly pressing one.[39]
[38] Kaur& Kaur [2014] FCCA 2843.
[39] Kaur& Kaur [2014] FCCA 2843, [143].
CONCLUSION
The mother seeks to travel overseas with X predominantly to Country B. There is no dispute that Country B is not a signatory to the Hague Convention. It is a significant plank of the father’s case that should the mother elect to remain with X in Country B, it will be very difficult (if not impossible for) him to secure X’s return to Australia. Obviously, such a possibility has potentially very serious ramifications for X as it may result in the severance of his relationship with his father and the paternal family.
Neither party sought to admit evidence about the current situation in Country B or issues of safety with reference to the Australian Governments website ‘Smart Traveller.’ I have proceeded based on what the parties have put before the Court as to why each of them says that the orders proposed are in X’s best interests.
In this finely balanced decision, I have concluded that orders should be made as promoted by the father. I do so for the following reasons:
(a)The Report Writer, Ms D did not recommend overseas travel for X given the instability in care X has already received in his short life. Once X is a teenager and the Court is satisfied conditions can be put in place to ensure his return, then it was supported that X be able to travel internationally with both parents.[40] The unchallenged evidence of the Report Writer should be given significant weight in my view. Whilst the mother’s counsel submits that the recommendation addressing overseas travel is “thinly supported”, the mother did not seek to call Ms D to be cross-examined and consented to her Report being in evidence without challenge. The mother otherwise supported the recommendations of Ms D which provided for X to live with one parent and spend time with the other. The mother cannot in my opinion ‘cherry-pick’ through the recommendations without seeking to put the Report Writer to proof on this major issue;
(b)It is the father’s position that he supports overseas travel commencing when X is 10 years of age. This is three years earlier than the age recommended by the Report Writer. The fact that a parent who is legally represented supports overseas travel occurring to a country that is not a signatory to the Hague Convention is a very important concession which cannot go unnoticed by the Court;
(c)I accept the mother’s evidence that the father was always aware of her money transfers back to family in Country B during their relationship and that the contract for the purchase of an apartment has lapsed;
(d)The involvement of Ms F as a benevolent financial benefactor for the mother remains opaque and unclear. Despite being foreshadowed as a witness by the mother, Ms F was not called at Trial. Her personal relationship with the mother is unexplained but she has clearly had the motivation and resources to support the mother. This is demonstrated in Ms F’s communications with the father, in being a point of contact for the mother in relation to email communication for Country B property purchase and, most obviously, in the payment of very large sums of money for legal fees without any formal loan documentation or security. The Court has been unable to independently assess Ms F because she was not made available at Trial. The father remains highly suspicious over Ms F’s motives and the lengths that she may go to in assisting the mother;
(e)I accept that ultimately it will be a wonderful opportunity for X to meet his Country B family and to experience his cultural background. Meeting family especially in a cultural context can be an enriching experience with memories to last a lifetime. In this case, X is only three years old. Any visit to Country B is likely to be enhanced when he is older and able to immerse himself in those experiences. In his short life until this point, he has been subjected to multiple changes in his care whilst his parents were engaged in a highly conflicted Court proceedings. I agree with the observations made by the Report Writer that what X needs now is stability;
(f)The mother’s proposed travel is not pressing in the sense of needing to visit a dying relative or some culturally significant event such as a wedding or funeral. I am not so satisfied on the evidence that the maternal grandmother could not travel to Australia to meet X. There was no medical evidence produced at Trial. Alternatively, the mother could travel alone to visit her mother and X remain behind cared for by his maternal uncle and his father. There is no impediment to the mother returning to Country B if her mother’s health deteriorates should she so choose;
(g)Whilst I assess the risk of the mother not returning to Australia as being slight, it is not however, non-existent. There are some ‘pull’ factors, the main one being the presence of the mother’s large and extended family who live there. There has been no occasion since X’s birth that the mother has travelled back to Country B and then returned to Australia. There is no specific course of conduct for the Court to utilise as a benchmark to assess the mother’s promise to return;
(h)Further, the security offered by the mother is, even on her own case, likely to be insufficient to cover the father’s expenses should she overstay with X. Nor is the sum suggested by her of $10,000 in my view, of sufficient magnitude to compel her return. The mother owns no property here and has no other ties apart from her brother whose Visa status in Australia has not been confirmed. She apparently owes an enormous amount of money to Ms F although stated in her evidence that some her settlement sum would also be used towards the purchase of a home. The Court observes that the mother’s settlement sum would not even go close to discharging the fees advanced by Ms F in these proceedings as set out in the mother’s Costs Notice;
(i)The parties co-parenting relationship is atrocious. They have limited capacity to communicate and view the other through a lens of suspicion and mistrust. The mother’s residential address is not known to the father, and she opposes it being disclosed. The father obtained an interim Intervention Order against the mother which he was prepared to withdraw as part of the final consent orders for X. There was a sense that the parties had ultimately reached final consent orders in spite of (and not because of) themselves; and
(j)I have no confidence that the parties could communicate over make-up time to the father or to negotiate any last-minute travel rearrangements if the mother was permitted to travel now. The evidence supports a finding that the question of make-up time would become a source of contention and frustration between the parties.
[40] See the Psychological Report dated 27 November 2023 at page 19.
The Court sympathises with the mother’s desire to travel with X to Country B. It must have occurred to the father when marrying a Country B national and bringing her to Australia that at some point, she may seek to return to visit her homeland and her family. However, the sole question for the Court in this Trial is not what might be best for the mother but rather, what is best for X. Given the father’s concession on X travelling at the age of 10 years to my mind the question of international travel became not ‘if’ but ‘when’ it should occur.
For the above Reasons, I consider that the Orders made herein are in X’s best interests.
The Airport Watchlist order shall remain until X’s 10th birthday and thereafter will be discharged. As and from X’s 10th birthday the mother is at liberty to travel internationally with X on terms promoted by the father. The mother shall have responsibility for obtaining X’s Passport as she is the only parent who seeks to travel overseas with him. She also has a final order for sole parental responsibility. The Airport Watchlist order shall be discharged upon X’s 10th birthday but with X’s Passport to be held by the Registry as a form of security when he returns to Australia. I decline to make a further order to maintain an injunction as well as the Airport Watchlist Order. There is no need for it. I consider this to be an overreach.
The Court has not made reciprocal orders for the father to travel with X because he did not seek any. The father did mention in his evidence that he may seek to travel overseas to visit family. In the absence of a formal proposal, the Court cannot consider something which can be elevated no higher than a foreshadowed desire on his behalf.
For all of the above Reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 20 March 2024
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