Tahir & Shaikh
[2023] FedCFamC2F 135
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tahir & Shaikh [2023] FedCFamC2F 135
File number(s): PAC 5310 of 2017 Judgment of: JUDGE MCGINN Date of judgment: 14 February 2023 Catchwords: FAMILY LAW- Parenting orders – overseas travel including travel to non-convention country – child aged seven years – competing applications seeking immediate ability to travel upon conditions or postponement of the ability to travel until child turns 12 years of age – mistrust between the parties – orders made permitting travel upon condition Legislation: Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Cases cited: CDJ v VAJ (1998) FLC 92-828 Division: Division 2 Family Law Number of paragraphs: 116 Date of last submission/s: 5 October 2022 Date of hearing: 24 March, 6 September, 4-5 October Place: Adelaide Counsel for the Applicant: Mr Juhasz Solicitor for the Applicant: Gad & Co Lawyers Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Kenneth Harrison Solicitor & Attorney Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co ORDERS
PAC 5310 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHAIKH
Applicant
AND: MR TAHIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MCGINN
DATE OF ORDER:
14 February 2023
IT IS ORDERED:
1.That the child X born in 2015 (“X”) be removed from the Family Law Watchlist.
2.That each of the parties within 21 days of being requested to do so by the other party do all acts and things and sign all documents necessary to make an application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005 (Cth)) to enable X to be issued with or to renew an Australian passport in her name.
3.That during any period of time that X is to live with or spend time with a party pursuant to the orders made 5 October 2022 that falls during any school holiday period that the parent with whom X is to then live with or spend time with during that school holiday period be at liberty to travel with X outside of Australia upon the following conditions:
(a)that at least 45 days prior to the date of prosed departure notice in writing be provided to the non-travelling parent of:
(i)the proposed date of departure from Australia and of return to Australia;
(ii)the address of each place at which X will stay during the period of travel; and
(iii)an emergency contact number at which the travelling parent can be contacted;
(b)that at least 40 days prior to the date of proposed departure the parties do all things and execute all documents necessary to open a bank account at such bank as nominated by the travelling party in the joint names of the parties of which they are to be joint signatories in respect of any transaction upon the account;
(c)that at least 30 days prior to the date of proposed departure travelling party do pay to the bank account referred to in Order 3(b) the sum of $15,000 by way of bond (“the bond monies”) securing the return of X to Australia following the period of proposed travel and provide written confirmation to the non-travelling parent of the bond monies having been deposited;
(d)that at least 30 days prior to the date of proposed departure further notice of the departure and return dates be provided in writing to the non-travelling parent in the form of a copy of the return flight tickets for X;
(e)that during such period of travel the travelling parent facilitate at his/her expense communication between the non-travelling parent and X by electronic means at least twice per week at such times as may be agreed between the parties or in default of agreement on Tuesday and Friday of each week of travel at 6.30 pm Australian Eastern Daylight Time;
(f)that upon X’s return to Australia from travel, subject to any other order that may have come to have been made by a court as to the payment of the bond monies in the event of a return or possible return to Australia by X on a date other than the proposed date of return from travel notified under this order, the parties do all things and execute all documents necessary to cause the bond monies to be repaid to the party who paid them into the bank account.
4.That subject to these orders X’s Australian passport be held by the mother.
5.That the mother do provide X’s Australian passport to the father for the purposes of travel the father is to undertake pursuant to these orders and the father do return X’s passport to the mother upon the conclusion of each period of travel he so undertakes.
6.That each of the parties be restrained and an injunction is granted restraining each of them from taking any step to apply for or seek or renew any passport other than an Australian passport for X.
7.That each of the parties execute all documents and do all such things as shall be necessary to give effect to these orders provided that should a party refuse or neglect or omit to execute any document after the same shall have been forwarded to him or her for a period of seven days, then and in such case, a Judicial Registrar or other judicial officer upon proof by affidavit of such refusal, neglect or omission is hereby appointed to execute and if the Judicial Registrar or other judicial officer is of the opinion that it shall be necessary to do so, to settle and to do all such other acts and things and to execute all such other documents that shall be necessary to give full force and effect to these orders and shall execute and do the same accordingly.
8.That the Amended Application for Final Orders filed 9 March 2022 and the Amended Response to Initiating Application filed 10 March 2022 do otherwise stand 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 Shaikh & Tahir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
Before the Court are the parties competing applications for final parenting orders in respect of their only child, their daughter, X born in 2015.
THE PARTIES’ RESPECTIVE APPLICATIONS
The proceedings are a second tranche of parenting proceedings to come before the Court. The previous set of proceedings commenced in October 2017 and concluded with orders being made with the consent of the parties in September 2018. Those orders provided simply for X to live with her mother and for the parties to have equal shared parental responsibility for major decisions concerning X.
No issue was taken by any party or the Independent Children’s Lawyer with it being appropriate for the Court to entertain the present set of proceedings.
The present proceedings were commenced by the mother in April 2019.
The present applications before the Court were the Mother’s Amended Application for Final Orders sealed 9 March 2022 and the father’s Amended Response to Initiating Application sealed 10 March 2022.
By the time of the commencement of taking evidence at trial the parties’ positions had narrowed the issues about which orders would need to be made by the Court.
The parties and the Independent Children’s Lawyer had come to agree that orders be made for the parents to have equal shared parental responsibility for X, that X live with her mother, that X spend time with her father at particular times during school terms and during school holidays and on occasions of special significance, changeover arrangements, the manner in which the parties were to communicate, the topics of communication and certain behaviours from which each of the parties would refrain. The Court considered, in all of the circumstances, that orders be made with the consent of the parties and the Independent Children’s Lawyer with respect to those matters in the terms contained in a minute of order provided by the parties and the Independent Children’s Lawyer before the taking of evidence.
Such orders were made with the consent of the parties and the Independent Children’s Lawyer on 5 October 2022.
What was left for determination by the Court was the determination of competing Applications as to the type of orders, if any, that should be made as to X’s future overseas travel.
THE ORDERS SOUGHT
The orders sought by the Respondent father in a proposed minute of order, using his numbering, were:
12.That each party is restrained from taking [X] born [in] 2015 outside the Commonwealth of Australia.
13.That until further order each party, (being [Ms Shaikh] born [in] 1983 and [Mr Tahir] born [in] 1983) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child/children ([X] born [in] 2015) from the Commonwealth of Australia until the AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child is/children’s name/names on the Watchlist for the said period, or until the Court orders its removal.
As a consequence of the father’s evidence, a submission was made on his behalf at the conclusion of evidence that overseas travel only be permitted after X turned 12.
The orders sought by the Applicant mother in a proposed minute of order, using her numbering, were:
15.That [X], born [in] 2015, is removed from the Airport Watchlist.
16.The parties will do all acts and things and sign all documents, within twenty-one (21) days of being requested to do so by the other party, necessary to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable [X] to be issued with or renew an Australian Passport.
17.In the event that a party refuses or neglects to sign any documents necessary to issue [X] with an Australian travel document, such reviews will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11 (2) (a) of the Australian Passports Act 2005 for [X] born [in] 2015.
18.That whilst the child is in Australia, the child’s passport is to be held by the mother.
19.The parents are restrained from obtaining a passport for the child from any other country (and specifically [Country B]) until the child is 15 years of age.
20.That the parents are at liberty to take the child outside of Australia and in relation to such travel that they shall not less than 30 days before the travel date, provide a written notification to the non-travelling parent including:
a.copy of the itinerary;
b.return flight tickets;
c.accommodation address;
d.emergency contact number.
21.The travelling parent is to facilitate communication between the non-travelling parent and the Child by telephone or electronic communication at least twice per week whilst travelling (unless otherwise agreed in writing between the parties). Any expenses incurred in compliance with this are to be borne by the travelling parent.
22.Upon the travelling parent’s compliance with above, the non-travelling parent is not to unreasonably withhold provision of consent pursuant to section 65Y(c)(i) of the Family Law Act 1975.
The Independent Children’s Lawyer supported the orders sought by the mother and, in addition, an order requiring the travelling parent to post a bond of $15,000 prior to travel.
THE LEGAL PRINCIPLES TO BE APPLIED
No express submissions were received at the end of the trial as to the source of power to be exercised by the Court in making the orders which were sought by each parent or the Independent Children’s Lawyer. The orders sought dealt with the times and the conditions under which X can spend time with her respective parents whilst travelling outside of the Commonwealth of Australia (if at all) and, as such, are parenting orders under Division 5 of Part VII of the Family Law Act 1975 (Cth) (“the Act”).[1] The father also sought restraints with injunction in relation to X’s travel outside of the Commonwealth of Australia which could be viewed as orders that can be made under Division 8, Subdivision E of Part VII of the Act[2] and, possibly, under Division 9 of Part VII of the Act.[3]
[1] Family Law Act 1975 (Cth) s64B.
[2] Family Law Act 1975 (Cth) s67ZC.
[3] Family Law Act 1975 (Cth) s68B.
The case outlines of the mother and father and each of their submissions imply that the determinations of the competing applications are to be made by reference to the best interests of X and, as such, that her best interests are to be regarded as the paramount consideration in the determination of the competing claims.
It was also implicit in the Independent Children’s Lawyer’s submissions that the competing applications at trial should be resolved by reference to X’s best interests being regarded as the paramount consideration.
The orders sought by each of the parties to now be made with respect to travel are sought in the context of applications for a suite of parenting orders generally. Other orders now made in the proceedings are parenting orders. In this context and given the manner in which the case of each party and the Independent Children’s Lawyer was brought forward, the Court, in considering what orders are to be made will regard X’s best interests as the paramount consideration.[4]
[4] Family Law Act 1975 (Cth) s65AA.
If the Court be wrong in that view, the best interests of X remain a powerful matter[5] to be weighed in determining what orders including those with injunction, if any, are to be made.
[5] CDJ v VAJ (1998) FLC 92-828 at 85,444 per McHugh, Gummow and Callinan JJ
The Court will proceed to determine the competing applications on the basis as to what orders would be, in the Court’s view, in X’s best interests.
In determining X’s best interests the Court must consider the matters set out in s60CC of the Act.
THE SOURCES OF EVIDENCE BEFORE THE COURT
In determining the application, the Court received evidence from each of the parties both in the form of affidavit and oral evidence given under cross examination. Further evidence was received from Family Consultant Ms C in the form of her Family Report of 26 March 2021[6] and her oral evidence arising from her examination by each of the parties’ and the Independent Children’s Lawyer’s counsel at trial.
[6] Prepared pursuant to orders of the Federal Circuit Court of Australia of 5 February 2020.
The Court found the Family Consultant to be an impressive witness who gave considerable evidence. The Court accepts the Family Consultant’s evidence both in the form of her Report and her oral evidence.
English was not the first language of either of the parties and although their evidence was given in English it was evident to me that neither party was fluent in English, particularly the mother. Although no submission was made as to this matter on behalf of either party, the Court nevertheless cannot overlook the difficulty that the parties had in expressing themselves at times in giving their evidence.
The mother’s evidence under cross examination was, at times, indirect and avoidant and beset by giving explanations or justifications for conduct when none was called for rather than being simply responsive to questions put to her. That said, the Court does not regard her evidence as speaking to active dishonesty on her behalf nor does the Court wholly reject her evidence but treats some of her evidence which she gave under cross-examination with concern.
The father’s evidence under cross-examination was, in the Court’s view, given in a straight forward manner and the Court accepts that he endeavoured to give his evidence to the best of his recollection and honestly.
BACKGROUND
Both of X’s parents are of the Muslim faith and migrated to Australia from their respective homes in Country B before obtaining Australian citizenship. X is an Australian citizen and has lived in Australia her whole life.
The father came to Australia in 2006 and obtained permanent residency in Australia in 2014. The mother came to Australia in 2009 and has since obtained permanent residency in Australia. Both parties have resided in Australia since their respective arrivals in Australia. Both are Australian citizens.
The father at the time of the hearing was unemployed and the mother worked as a customer service officer at Employer D. Beyond the evidence contained in their respective affidavits about employment, the Court has little information about the parties’ general financial circumstances.
I make this reference to the financial circumstances of the parties as there was evidence lead in this matter as to the concept of a bond of $15,000 being posted by a parent travelling overseas. I accept the mother’s evidence that although she would face difficulty in gathering such a sum she would be able to do so if required for travel purposes.
I find the posting of such a bond (if it were to be imposed as a condition of overseas travel) to be a substantial and onerous burden for whichever party would have to supply it.
Australia is the only home X has known. She has commenced her schooling here. Any change from X’s general living circumstances to another country would not serve X’s best interests.
X is seven years of age. When interviewed by the Family Consultant in January 2021, X presented as an easy going, happy, affable, polite, creative and well-adjusted girl and was noted to be meeting all of her developmental milestones.
X is progressing satisfactorily at and enjoying school. She undertakes extra-curricular activities and is learning Country B, the language of her parents’ country of birth.
X’s parents lived together from 2013 until, at least, May 2017. The mother’s affidavit evidence was unchallenged that X’s parents then briefly reconciled in 2018.
Since the parties’ separation X has always lived with her mother and spent time with her father.
X travelled to Country B with her mother in late 2017 or early 2018. During that trip X met her mother’s extended family including the mother’s parents who lived in Country B. X also, during that trip, saw her father and his extended family.
This trip was undertaken whilst the first tranche of proceedings were on foot and was the result of hesitant cooperation between the parties. The mother initially attempted to travel with X without notice to the father but it is clear, however, that before their departure for Country B the mother did obtain the father’s agreement.
Sadly, since the time of that trip, X’s maternal grandparents have passed away. X’s maternal grandmother passed away about a year ago prior to the hearing. However, each of her parents have extended family continuing to live in Country B.
There can be no doubt that each of the parents consider their and X’s Country B heritage to be of importance and value to both themselves and their daughter and it is appropriate that X’s parents do so.
In January 2021 X was observed in interviews with Family Consultant Ms C to have the benefit of a loving, comfortable, confident, familiar and affectionate relationship with each of her parents.
There was no evidence placed before the Court that causes the Court to understand that X’s relationship with each of her parents is any different at the present time or is likely to change in the foreseeable future. There is also no evidence before the court that X will not continue to develop to the best of her potential other than if her parents are not able to continue to constrain what was termed by the Family Consultant in her Report as, the “covert forms of conflict” constituted by expressions of negative opinions/dislike of the other parent and associated extended family members.
The Family Consultant opined in her Report of March 2021 that X’s parents had a very poor co-parenting relationship but have managed to shield X from that failure on their behalf to the date of the Report.
The Family Consultant, when informed in the course of her evidence of the agreements that the parties had arrived at by trial leading to orders being made with their consent on 5 October 2022, accepted that the fact that the parties had reached agreement about a number of matters including parental responsibility and living and time spending arrangements indicated that the parties’ co-parenting relationship should be considered to have improved since the conduct of interviews by the Family Consultant in January, 2021. The extent of this improvement however, was uncertain. The Court accepts this evidence.
THE NEED AND/OR BENEFIT OF OVERSEAS TRAVEL FOR X
As referred to above, X is a child of parents who were born in Country B and her parents actively and justifiably maintain their cultural heritage in maintaining contact with family in Country B and in having their daughter undertake Country B language instruction. The Court finds that Country B culture, as maintained by her parents, is part of X’s make up and her identity. As such, it is in X’s interests that she be able to appropriately partake in and be exposed to the practice of that culture both in Australia and in Country B and that the ability of X to benefit from such exposure including the exposure arising from travelling to Country B from Australia should not be unduly restricted.
The Family Consultant’s evidence that it should be regarded as in X’s best interests that she be able to undertake travel to Country B should not be regarded as surprising and is accepted by the Court.
The Court accepts that although links and communications with extended family and others in Country B could be established and maintained through electronic communications, such communications would not afford X as full an experience of life in Country B as would be provided by visiting that country.
X is now 7 years of age. She has travelled to Country B when she was about two and half years of age. The Court doubts that the impression of that trip would be of any significance given her age at the time. X is now, however, of an age where travel to Country B would provide her with more lasting impressions although it would not be of a decisive or massive impact at this time.
The Family Consultant in her evidence said that whilst X would benefit from being able to travel to Country B, the benefits of such travel would not be lost if such travel were to be delayed for a period of at least about 2 or 3 years when X is about 10 or so for her to undertake that trip.
That evidence whilst it is accepted by the Court – as it must be as it accords with common sense in all of the circumstances – does not preclude the inference that this Court makes that such benefit can still be had by a child of X’s age of 7 years and of her circumstances.
There was no evidence that such travel was planned to be undertaken by either parent in the foreseeable future although there was evidence that the mother may need to return to Country B to facilitate the administration of her later mother’s estate.
The evidence in this case focussed upon possible travel to Country B. However, as the Independent Children’s Lawyer’s counsel properly emphasised in his submissions and explored in his cross-examination of the Family Consultant and the father, the potential for travel by X should not be confined to trips to Country B as other opportunities for travel may emerge for her as she grows up. A hypothetical scenario was put to each of the parents in the Independent Children’s Lawyer’s counsel’s questioning of them of travel by way of school excursion to New Zealand.
My view is that X would benefit from travel overseas generally provided that type of travel is to locations that can suitably secure X’s health and safety and general welfare. Such travel would provide her with opportunities to experience places and cultures other than that offered and lived within Australia including in sharing in the day to day and week to week lives of relatives who may reside overseas. The experience of Australia’s multicultural society, whilst offering many opportunities to partake in many cultures from overseas, is not a complete substitute for experiencing first hand a culture in its home country.
These benefits, in the circumstances of this matter where the mother’s parents are no longer alive and she has only a brother in her immediate family living in Country B, are still to be regarded as real and substantial. The Family Consultant said in her Report that the ability for X to travel to her parents’ country of origin and/or travel overseas with her parents may positively impact upon X’s sense of identity. My view is that such travel would do so and would be of benefit for X.
In providing the opportunity to take up the benefits of travel however, there must be a recognition of the need for any such travel to accommodate other aspects of X’s welfare and development. In particular, as stated by the Family Consultant in her evidence travel should, except in the case of emergency, be confined to school holiday periods given that schooling, both in terms of its academic and social aspects, would be of importance to X.
There exists the possibility that travel may be needed to be undertaken in urgent and unexpected circumstances such as attending upon a dying relative. However, the Court views those circumstances as exceptional and that travel under such urgent circumstances, despite any then prevailing orders, might well be permitted upon a then current application being made and considered on the basis of the exceptional circumstances should it come to pass. The Court otherwise intends to consider the making or orders that deal with overseas travel under non-exceptional circumstances.
CONSIDERATION
The fundamental issue in this case in the Court’s view is that each of the parties does not trust that the other parent taking X overseas would return X to Australia. This mistrust, on the father’s case, is said to be both mutual and justified.
The present proceedings were instituted by the mother in April 2019 seeking, amongst other things, X being on the Watchlist both on an interim and final order basis which would preclude X’s travel from Australia.
The mother told the Family Consultant in January 2021 that she remained “not comfortable” in the father taking X overseas and, in particular, to Country B.
This position was maintained by the mother in early 2022 as reflected in her Amended Application filed at 9 March 2022 that sought, amongst other things, that X remain on the Watchlist which would have the effect of limiting the circumstances under which X could travel overseas.
The mother’s position had changed by trial in that her evidence was that the orders she now sought would, if made, leave her confident that X would return to Australia from Country B. That evidence was consistent with the inference (which the Court draws) that arises from the orders sought by the mother at trial that provided that each of the parties be able to travel overseas with X subject to certain conditions.
If there was mistrust present on the mother’s behalf earlier in the proceedings, the Court accepts that by the time of the swearing/affirmation of the mother’s trial affidavit on 9 March 2022 and by the time of trial, that mistrust had abated to the extent that it permitted the mother to seek that the father could travel overseas with X.
Why this change on the mother’s behalf had occurred was not clear to the Court either on the evidence she gave or made plain in the course of her submissions. The implication of the father’s cross-examination of the mother was that there was risk associated with X being permitted to travel to Country B with her mother and then a dispute arising between the parties whilst X was there. It was also apparent that the mother’s concessions in seeking at trial orders permitting travel by either party (albeit upon conditions) to Country B was to be viewed as a pretext to enable the mother to travel to Country B and retain X in her care in that country or at least to travel to Country B and, once there, frustrate the orders of this Court that might otherwise favour the father.
The father gave evidence that in permitting the mother to travel with X to Country B the father may well have the benefit of an “upper hand” with the local legal authorities should a dispute arise between him and the mother whilst X was present in that country.
In January 2021, in interview with the Family Consultant, the mother appears to have told the Consultant that the father may be able to obtain a Country B passport for X without the mother’s knowledge implying that he might be able to travel without the mother’s knowledge or consent. The mother repeated this ability of the father in her trial affidavit. The mother was not challenged on this aspect of her affidavit. There is evidence in the Family Consultant’s Report that it is the father’s view that the mother’s assertion in this regard may not be the case in fact and that, in any event, X should only have an Australian passport.[7] I find that the mother’s understanding of the father’s ability to obtain X’s Country B passport on his own would be a reason for the mother not to trust the father but that the father’s understanding would not be a reason for the father to mistrust the mother.
[7] See the Family Assessment Report of Family Consultant Ms C of 26 March 2021 [49]
The mother in her evidence acknowledged that the risk of the father being in Country B and exercising an “upper hand” was one she was prepared to adopt in X travelling to Country B with her father. However, the mother appeared to have an imperfect understanding and consequent appreciation of that risk in not knowing (despite reference in her affidavit) as to the operation of what she referred to in her affidavit as the “Hague Convention”.
I accept the mother’s evidence that the only threat that she has made as to retaining X in Country B was made in the heat of an argument between the parties which took place over the telephone whilst the father was in Australia and the mother in Country B in January 2018. I accept the mother’s evidence that the threat was insincere and made impulsively.
However, whilst the threat of not returning to Australia made to the father may have been made in the heat of the argument, the father was left with that stated threat.
The mother, despite having voiced that threat from Country B whilst the father was in Australia, then returned to Australia in late January 2018.
There does not appear to have been any action undertaken by the father in the light of the mother’s threat and the then pending parenting proceedings appear to have proceeded to be adjourned, conferenced, mediated and, in September 2018, the subject of consent orders.
Those consent orders provided for equal shared parental responsibility and for X to live with her mother. The orders appear to have lacked any specific reference to the issue of overseas travel for X.
Any mistrust that the father harboured in relation to the threat made by the mother in January 2018 to not be coming back to Australia appears to have abated over the course of 2018.
It was submitted on behalf of the father that the mother gave evidence both in its terms and manner that she was surprised that the position she was adopting at trial permitted the father as well as her to travel overseas.
There have been a number of applications as to the making of Watchlist orders agitated before the Court by each of the parties and which have seen orders made and discharged with consent of the parties.
The mother gave evidence under cross-examination that she held concerns at the date of the trial hearing that the father might obtain a Country B travel document for X and take her overseas and not return but was still prepared to consent to orders permitting travel.
When first questioned as to whether she was aware that the orders she was seeking provided for the father to travel with X overseas, the mother responded that she was not sure and when the question was immediately put to her again she said after the briefest of pauses “Yes”.
The mother was then questioned whether she understood that if the Court made orders in terms of her application for overseas travel that the father could then take X overseas for one week to Country B and she replied “No I don’t believe that”.
The mother then shortly after further questioning said that the father “could do that” in relation to a further enquiry if the father’s travel to Country B with X were to be for a week of the school holidays.
I do not accept that the mother upon my consideration of the terms and manner of giving her evidence on this topic was surprised about the father being able to travel overseas with X under her proposed orders as was submitted on behalf of the father.
The mother in my view did not resile from her position as to the orders sought by her.
There was no evidence given by the father that he would retain X away from her Australian home or that X should be so retained. Indeed, his positon before the Court was that X should not be retained in Country B or anywhere else other than Australia.
The further submission of the father was that, should orders permitting overseas travel be made, such orders should delimit the travel period to the week the father has during holidays.
Having heard the mother’s evidence and considered all of the evidence, I find that the change in the mother’s position at trial in the course of the present proceedings in now seeking orders permitting X to travel with each of her parents overseas is something about which she is both determined and genuine.
That the mother was willing to assume the risk that her being in Country B may see her on the wrong end of the father’s purported “upper hand” was not unreasonable or delusive.
The father, however, it is said remains mistrustful of the mother in her change of position that would permit him to travel to Country B as well as permitting the mother to so travel under the conditions sought by the mother. Further, it was not disputed by the father that he may well have the benefit of an “upper hand” with the local legal authorities in Country B should a parenting dispute arise whilst X was present in that country.
The father’s mistrust of the mother was present when the mother undertook travel to Country B in late 2017/early 2018. His evidence was that it was his view that the mother only returned at that time as there were proceedings then pending in Court. Whilst that may be his view, I consider that the mother returned to Australia in January 2018 as Australia was considered by her at that time to be home for both the mother herself and X and that it was in X’s interests that she return home to Australia to resume her usual life.
There is no evidence that satisfies me that the mother intends to change X’s home country and, in particular, that the mother would so change the home country to simply frustrate the father’s relationship with X.
I agree with the submission of the Independent Children’s Lawyer that the mother is not a “flight risk”.
The father’s mistrust of the mother has been made worse by the fact that the parties in more recent times seldom, if ever, speak to each other although the parties must have successfully done so in the past when things were described by the father in his affidavit as “going great” in mid to late August 2018.
Under orders made at the commencement of trial the parents’ communication with each other, except in the event of emergencies, is to be confined to electronic text or email communication.
I find that although the parents’ communication is limited to electronic means that I should not infer that the level of mistrust between the parents justifies precluding one or both parents from taking X overseas.
There is no evidence that satisfies me that X’s health or safety was jeopardised by her travelling to Country B in late 2017/early 2018 or that, assuming current circumstances continue to prevail, her safety or welfare would be jeopardised in the future simply on account of travelling to that country.
There is no evidence that satisfies me that X would be the subject of punishment or that her safety would be compromised in her mother or father’s care whilst in Country B. I find that this cannot be a reasonable basis for mistrust about travel on the father’s behalf.
The mother’s unchallenged evidence discloses that the only withholding of X from a parent that precipitated action was on account of the father retaining X in his care in April 2019 after which the mother filed an Application for a recovery order. After the filing of that application the father returned X to her mother’s care. X then remained in the mother’s care until December 2019 when the father again commenced spending time with X. This period is not referred to in the father’s affidavit.
I find that that the father’s conduct at that time can be seen to be a source of mistrust for the mother but not of the father towards the mother.
The position in my view is that the mother is able to set aside her mistrust such as it is of the father to permit each party (under conditions) to undertake overseas travel with X; the father however, cannot set aside his mistrust, whether reasonably based or not, of the mother.
The father’s mistrust even if genuinely held should not in my view be determinative of the question of whether and under what conditions X should be able to travel overseas with her parents.
The Family Consultant in her Report of 26 March 2020 expressly recommended that X’s name remain on the Watchlist. During the cross-examination of the Independent Children’s Lawyer, the Family Consultant identified that this recommendation in her Report was very much based upon her understanding of the parenting relationship at the time of her interviews in January 2021. In the Family consultant’s view, the parenting relationship was so very poor that the parties could not reliably convey to the other parent details concerning proposed overseas travel. The Family Consultant acknowledged that the provision of details may, depending upon the extent to which the parties’ communication and relationship had improved, address the concerns that she held.
The Family Consultant gave evidence that it may be appropriate given the terms of the consent orders made on the first day of trial on 5 October 2022 that the views in her Report recommending X remain on the Watchlist may no longer be appropriate should the parties’ relationship as parents have improved sufficiently to displace the difficulties that they had previously experienced.
I find, as a result of the consent orders made at the commencement of the trial and the findings I have made about the nature and sources of the father’s mistrust of the mother, that the recommendation made in the Family Consultant’s Report as to the continuation of the Watchlist order should not now be adopted.
Although the parties’ communications are constrained to being electronic (except in case of emergency) and there subsists a level of mistrust between the parties - particularly by the father towards the mother and particularly as reflected in the formal orders he seeks at trial in relation to the question of all and any overseas travel for X now understood to be delayed until she turns 12 years of age – I find that it is in X’s best interests that she be able to undertake overseas travel with her parents as of the present time.
The father in his evidence said the effective ban on overseas travel that he was seeking should apply until X was 12 years of age unless the parties find that there is a pressing need to travel overseas with X. It was submitted that the 12 years of age threshold would see an abatement of the father’s mistrust as X would be of an age where she would be emotionally and physically able to cope with any “difficulties” that should arise should she be overseas.
I reject that view because it presumes that X should bear the responsibility for her care whilst she is overseas with one of her parents. At whatever age X travels it remains the responsibility of the travelling parent accompanying X to care for and safeguard X’s well-being whatever the eventualities that may arise. I am satisfied on the evidence that each of the parents would be motivated to do so and have the capacity to serve X’s interests both presently and in the future whilst travelling.
The father also submitted that an order permitting overseas travel now would undo the good work the parties had done in improving their communication
I reject that submission. The parents’ communication method as now agreed and reflected in the parenting orders made 5 October 2022 must be taken to be sufficient to enable X to have a meaningful relationship with each parent. That communication could be enhanced by there being orders made ensuring that information is provided in relation to overseas travel arrangements.
CONSIDERATION OF S60CC MATTERS
Although submissions were not specifically directed to the manner in which s60CC should be addressed I consider that I am bound to consider the matters listed in that subsection.
I now turn to a consideration of the provisions of s60CC of the Act.
Subsections (2) and (2A) identify as primary considerations the benefit of X having a meaningful relationship with each of her parents and the need to protect her from physical or psychological harm and from being subjected to or exposed to abuse neglect or family violence.
The parenting orders made on 5 October 2022 ensure that X has a meaningful relationship with each of the parents and is protected from being subjected or exposed to abuse neglect or family violence.
I did not receive any submission that I should consider or find that X, in being able to travel overseas with a parent, will see her being subjected or exposed to abuse or neglect or family violence. I consider that she would not be so exposed and that each of her parents would guard against such exposure.
Turning to the additional considerations identified in subsection 60CC(3) I bring the following findings to account: –
(a)there are no relevant views expressed by X that relate specifically to the question of overseas travel;
(b)X has a close and loving relationship with each of the parents and by the evidence contained in the Family Report, X has an appropriate relationship with members of the mother’s extended family, in particular her maternal uncle and with members of the father’s extended family;
(c)each of the parties has taken up over time opportunities to the extent that their fluctuating relationship as parents has permitted to participate in decisions about X and her spending time with the father and her communication with each of the parents;
(d)there is nothing in this case which indicates to me that the parties’ respective obligations to maintain X is a matter of any weight with respect to the issue that remains to be determined by this Court as to travel;
(e)it is not likely that there is to be any changes in X’s circumstances and in particular that her place of residence will be other than Australia or that X will be separated from either her mother or father. If there were to be a change in X’s home country from Australia that would be devastating for her welfare and development;
(f)in the circumstances of this matter, there are no pressures, practical difficulties or expense that impedes upon X spending time with or communicating with each of the parents;
(g)each of the parents have a capacity to meet X’s needs including her emotional and intellectual needs whilst she is in the respective care of her parents both here and, should the need arise, during holiday travel overseas;
(h)X’s cultural background and that of the parents is important in relation to X’s understanding of herself and her general well-being and development. Although X is not of an age whereby she might obtain what might be considered maximum benefit from overseas travel, I consider that she would still obtain a meaningful benefit from being able to travel overseas with a parent presently and, in particular, if she was to undertake that travel to Country B;
(i)each of the parents have demonstrated an understanding of the other parent’s importance to X and appropriate attitudes in their duties towards X and the responsibilities of parenthood. The father’s demonstrations are not of as great a significance as that demonstrated by the mother and the demonstration of appropriate attitudes is constrained in the context of the poor co-parenting relationship;
(j)there have been allegations of family violence between the parties relating to events in 2017 and the obtaining of an Apprehended Violence Order for a period of 12 months at that time. I was not assisted with any submissions in relation to this topic and I make no findings as to the matters related to this topic identified in each parties’ trial affidavit and the Family Report; and
(k)I recognise and take into account that Country B is not a party to the Convention on the Civil Aspects of International Child Abduction (or as it was termed in the mother’s trial affidavit the “Hague Convention on Child Abduction”). This means that should X be detained in Country B by either parent that the benefits of that Convention in assisting the parent who has not then taken X overseas will not be available entailing extra expense and worry for that parent in having their time or living arrangements with X under the orders restored;
(l)the father’s submission was that no orders should be made for overseas travel and that the matter of overseas travel be left to be dealt with on a case by case basis as and when the desire or need for overseas travel arises. Although I must acknowledge that circumstances may arise in future where a need for overseas travel may irregularly and urgently arise on account of unexpected or unplanned events such as deaths in extended family living overseas, given the death of the mother’s parents these type of unplanned circumstances should be anticipated to be limited. Further, I consider that it is in X’s interests that orders be made with respect to overseas travel upon the present applications leaving such emergency applications to be dealt with on a case to case basis.
I note that the father informed the Family Consultant that he cannot on his own obtain a Country B passport and the mother does not seek that such a passport issue. As such, an order with the effect of confining X’s passport to an Australian one seems appropriate.
CONCLUSIONS
In all the circumstances I consider that it is X’s best interests that orders be made facilitating her overseas travel with a parent upon conditions that such travel occur upon adequate notice during school holiday periods, with the provision of particulars of travel and the posting of a bond.
The Applicant mother has sought certain orders for X’s removal from the Watchlist and for the parties to execute documents to enable X to have or maintain an Australian passport.
The mother also sought, at paragraph 17 of the orders sought by her, an order that appeared to attempt by order to satisfy the Minister administering the Australian Passports Act 2005 to issue an Australian passport for X. I do not consider such an order can be properly made and I decline to do so.
An order was also sought by the mother that apparently is to provide consent for each occasion of travel to preclude the operation of section 65Y of the Act. This also is not an order that is necessary that I make.
I consider that it is in X’s best interests in all the circumstances that the orders be made as set out in the outset of these reasons.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 14 February 2023
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