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Issues in Relation to Overseas Travel

Issues

39. As stated, the discrete issue for the Court to determine relates to whether there ought to be additional pre-conditions implemented on international travel by the children with either party. More specifically, the following questions require determination:

  • Subject to consent, whether the current international travel restraint (and the Family Law Watchlist) should remain;
  • Whether any international travel by the children with the father should be restricted to one period each year;
  • What period of notice should be given by the travelling parent to the non-traveling parent prior to any international travel with the children; and
  • Whether the mother should be permitted to accompany the children on the relevant airline flights for their overseas journeys with the father, or not.

Law and Discussion

Overview

55. All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act, and deal with issues relevant to this dispute, including issues relevant to the time and circumstances that a child spends with one of his or her parents. Parenting orders also deal with the allocation of parental responsibility.

56. Section 60CA of the Act provides as follows:

In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

57. Section 60CA through section 60CC deals with how the Court determines the best interests of children.  This is sometimes referred to as the ‘legislative pathway’.  The most relevant to this discrete issue would be the primary considerations in section 60CC(2), and the additional considerations in section 60CC(3), where relevant.

Primary Considerations:  Section 60CC(2)

58. Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. The Full Court considered this provision and concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92.  In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the child’s best interests) how and what orders can be framed in order to ensure that a child has a meaningful relationship with both of his or her parents, and by implication extended family.

59. That said, the Court must also consider section 60CC(2)(b) of the Act – the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

Relevant case law

70. I note at this point in my reasons that there is no specific provisions in the Act relevant to international travel, save for Subdivision E of Division 6 of Part VII – being the obligations under parenting orders related to taking or sending children to Australia.  That said, there are a large number of cases that have considered the issue of international travel.  In particular, the Full Court’s decision of Kuebler and Kuebler (1978) FLC 90-434 and Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729. I note that the father referred to both of these cases in his case outline document and during oral submissions.

71. The case law would suggest that the Court should examine the following questions: 

  • The length of the proposed stay out of the jurisdiction.
  • The bona fides of the travel application.
  • The effects on the child of any deprivation in spending time with the other non-travelling parent. 
  • Any threats to the welfare of the child and the circumstances of the proposed environment of travel.
  • The degree of satisfaction the Court may have in the travelling parent’s promise to return to the jurisdiction.
  • Whether a financial security is appropriate.
  • Hardship issues.
  • Whether the country of proposed travel is a member of the Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”).

Posted in: Derek Legal Blog at 27 May 20

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