Sukova & Allen - [2011] FamCA 340

FAMILY COURT OF AUSTRALIA

SUKOVA & ALLEN

[2011] FamCA 340

FAMILY LAW – CHILDREN – whether the child can travel overseas with the mother.

Family Law Act 1975 (Cth)

Gin and Hing [2010] FamCA 617
Line and Line (1997) FLC 92-729

APPLICANT:

Ms Sukova

RESPONDENT:

Mr Allen

FILE NUMBER:

MLC

7292

2008

DATE DELIVERED:

13 May 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 May 2011

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Hanlon

SOLICITOR FOR THE RESPONDENT:

Pearce Webster Douglas

Orders

That to the extent that the following orders are inconsistent with paragraph 16 and 17 of the orders made 6 November 2009, that is, the order restraining the wife Ms Sukova from removing the child B (female) born … November 2006 from the Commonwealth of Australia the said paragraph 16 is suspended during the operation of these orders.
That the wife Ms Sukova is permitted to remove the child from the Commonwealth of Australia for the purposes of travelling to Country C for a period between 4 June 2011 and 3 July 2011 only on the following terms and conditions.
The wife’s departure from Australia with the child is subject to the following:
(a)No later than 7 days before the day of departure, the wife provide to the husband through his lawyers, copies of the travel itinerary including the addresses where she will be staying in Country C together with copies of return airline tickets; and
(b)No later than 7 days before the day of proposed departure from Australia, the wife obtain a receipt for the security funds referred below from the solicitors for the husband for the purposes of production to the Australian Federal Police.
To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the wife provide to them the following:
(a) a copy of these orders; and
(b)a copy of a letter from Pearce Webster Dugdales confirming that they are holding $15,000 in their trust account or controlled account for the purposes of the security otherwise referred to in these orders.
To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the wife provide to them a copy of these orders.
That the Court requests that the Australian Federal Police otherwise retain the name of the child B (female) born … November 2006 on the Airport Watch List at all points of international arrivals and departures in Australia.
That no later than seven (7) days before the day of departure, the wife pay into the trust account or controlled account of the solicitors for the husband Pearce Webster Dugdales of …, the sum of $15,000 to be held in trust by them for the wife as security for her return of the child to Australia.
That the husband have liberty to apply on short notice to make an urgent application for the release of the said trust funds…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sukova & Allen

Details

AGLC: Sukova & Allen [2011] FamCA 340
Case: [2011] FamCA 340
Decision Date

CaseChat Overview and Summary

In *Sukova & Allen* [2011] FamCA 340, the Family Court of Australia considered an application by Ms Sukova (the wife) for permission to travel overseas with the child, B, born in November 2006. The wife sought to travel to Country C for a period between June and July 2011, to attend a christening and for the child to visit her extended family. She also sought to discharge existing injunctions preventing international travel and for the husband, Mr Allen, to sign documents related to the child's passport. The husband opposed all orders, seeking the dismissal of the wife's application.

The primary legal issue before the court was whether the child, B, should be permitted to travel overseas with the mother, and if so, under what conditions. This involved considering the paramountcy of the child's best interests, the existing parenting orders, the potential risks associated with international travel, and the relationship between the child and both parents. The court also had to determine whether to lift the existing injunctions against international travel and address the wife's request regarding passport documentation.

Justice Cronin applied the principles of the *Family Law Act 1975* (Cth), particularly the requirement to regard the best interests of the child as the paramount consideration under s 60CA. The court considered factors relevant to international travel cases, including the strength of ties to Australia, potential motives for not returning, motives for remaining in the destination country, and whether the destination country was a signatory to the Hague Convention. While acknowledging the wife's desire for the child to connect with her family in Country C, the court noted the lack of trust between the parties, the wife's limited disclosure of travel plans, and concerns about the child's relationship with the father. The court also considered the husband's concerns about the child's welfare and the potential impact on his relationship with B.

The court ordered that the injunction restraining the wife from removing the child from Australia be suspended to permit travel to Country C between 4 June 2011 and 3 July 2011. This permission was subject to strict conditions, including the provision of travel itineraries, return tickets, and addresses to the husband's lawyers seven days prior to departure. The wife was also required to provide a copy of the orders and confirmation from her solicitors that $15,000 was held in trust as security for the child's return. The Australian Federal Police were to be provided with copies of the orders and the security confirmation, and the child's name was to be retained on the Airport Watch List. The wife was ordered to pay the $15,000 security into the husband's solicitors' trust account seven days before departure. The husband was granted liberty to apply for the release of these funds if the child was not returned within 24 hours of the specified return date. Upon return, the wife was to immediately advise the husband. The wife's application and the husband's response were otherwise dismissed.

Orders