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…
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CaseChat Overview and Summary
The court considered various factors, including the dysfunctional relationship between the parents, the child’s young age, and the potential impact of overseas travel on the child’s well-being. The court also reviewed the Family Report Writer's recommendations. The court found that it was in the child’s best interest to restrict overseas travel until the child attained a certain age, but also to ensure that the mother could facilitate the child’s contact with the father while overseas. The court decided that the mother could take the child overseas once the child turned ten, but imposed stringent conditions on the travel to ensure the child’s safe return to Australia.
The court ordered that the mother could remove the child from Australia on one occasion each year for a period not exceeding 21 days, provided that the mother deposited the child’s passport and a sum of $15,000 into the Federal Court of Australia Official SPM Exempt Litigants Fund. The passport would only be released upon the mother proving payment. The court also required the mother to provide detailed itineraries and return air tickets to the father, facilitate weekly communication between the child and the father, and arrange for the child to spend time with the father upon returning to Australia. The court discharged the appointment of the Independent Children’s Lawyer and dismissed all outstanding applications.
These orders were made to balance the mother's request for travel with the need to protect the child's best interests and ensure a stable co-parenting relationship. The court’s decision reflects a careful consideration of the evidence and recommendations, aiming to provide a structured approach to overseas travel that mitigates potential risks to the child.
Orders
Orders of the court
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 Act 1975 (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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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