Smallwood and Smallwood

This matter came before Berman J concerning an application by the mother for permission to travel overseas with the parties' two children, B and C. The father sought security for the children's return to Australia.

The primary legal issue before the court was whether to grant the mother liberty to take the children out of the Commonwealth of Australia for overseas holiday travel, and if so, what conditions should be imposed to ensure the children's return. This involved determining the adequacy of security to be provided by the mother.

Berman J ordered that the mother place $30,000 into a trust account operated solely by her solicitor, or a separate account in her name but operated solely by her solicitor. This sum, along with any accrued interest, was to be held until 4 October 2021. The mother's solicitor was required to provide an undertaking to maintain the security sum, facilitate the separate account if necessary, and not release the funds to the mother unless specific conditions were met: after 4 October 2021, if the order permitting travel was discharged, with the father's written consent, or by court order. Subject to the solicitor's undertaking and confirmation of the deposit, the mother was permitted to take the children on overseas holiday travel, provided she supplied the father with travel arrangements at least 21 days prior to departure.