Mother to pay Security Bond to Travel Overseas with Child

 

The Mother was ordered to pay a Security Bond to travel overseas with the 5 year old Child.

The Child is on the Airport Watch List pursuant to an Order previously made.  The Airport Watch List Order is suspended for the Mother to travel in accordance with security bond order.

The parties had reached agreemeent on Parenting Orders which had been made by consent and which Orders provided for Equal Shared Parental Responsibility and a Shared Care arrangement.  The only issue proceeding before the Court was whether the Mother could take the child overseas to her home country and another country (not stated where).

The Mother is a permanent resident of Australia but was born overseas and still has her Parents, two sisters and a brother residing overseas. The Child holds dual citizenship and is bilingual. 

The mother has elderly relatives overseas she wished to visit with the Child, as well as her Father being quite ill.  She wished to expose the Child to her culture and time with her extended family overseas.

The Father’s concern was that he was on Centrelink and did not have financial resources to attempt to recover the Child if the Mother did not return. The Mother had offered a $35,000 security bond, however the Father was not happy with that, saying the Mother’s family is wealthy and the loss of that amount would be of no concern to them.

Ultimately the Court decided it was not in the best interests of the Child to refuse her an opportunity to engage further with her culture and extended family and made the Security Bond Orders.  

The Security Bond Orders were made providing:

• the holiday was only to be for a maximum of 3 weeks occuring in either July or September 2018;
• at least 7 days before leaving Australia for travel under these orders, the mother is to pay a security bond of $35,000 by bank cheque to be held on trust by the Mother’s Lawyer and disbursed:
  • by repayment in full to the Mother within 5 business days of her return to Australia; or
  • to be paid on account of any legal & other appropriate fees incurred by the Father if the Mother fails to return the Child to Australia;
• in relation to that travel:
  • the Mother is to give the Father 30 days notice of her intention to travel including providing copies of a return flight confirmation, an itinerary and contact details for the Mother & Child while away;
  • the Father is is to provide the Mother with the Child’s passport and birth certificate within 7 days of receiving that notice of intention to travel from the Mother;
  • the Mother is to return the passport and birth certificate to the father within 14 days of their return to Australia;

If the Mother fails to return the Child to Australia in accordance with the Orders, there shall be an Order for the Child to live with the Father and spend no time with the Mother upon her return. 

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NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Lawler & West [2017] FCCA 2539 (20 October 2017)

Last Updated: 9 November 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

THE COURT ORDERS THAT:

(1) The mother have leave to remove the child X born (omitted) 2012 (‘the child’) from the Commonwealth of Australia for the purposes of a holiday to (country omitted) and/or (country omitted) on the following basis:-

(a) the holiday shall be of no more than three weeks duration and shall occur in the months of either July or September 2018;

(b) the mother shall provide the father with 30 days notice in writing of her intention to travel, including but not limited to providing the father with a copy of a return flight confirmation, an itinerary and contact details for the mother and child while away;

(c) not less than 7 days prior to her departure from Australia for the purposes of these orders, the mother shall pay a security bond in the amount of $35,000 by way of bank cheque, such sum to be held on trust for both parties by the mother’s solicitors and to be disbursed as follows:-
• (i) to be repaid to the mother in full within five business days of her return to Australia; or
  (ii) to be paid on account of any legal and other appropriate fees incurred by the father in the event that the mother fails to return the child to Australia and for the purposes of this order the father shall provide all necessary invoices and accounts to the mother’s solicitor for payment.

(2) The Airport Watch List order made 17 August 2016 shall be suspended during the period that the mother travels pursuant to these Orders.

(3) The father shall provide the mother with X’s passport and birth certificate no later than seven days following notice being given pursuant to Order 1(b) above. The mother shall return X’s passport and birth certificate to the father within 14 days of her and the child’s return to Australia.

(4) The mother shall ensure that X speaks to the father by telephone or Skype if the parties can facilitate Skype communication, not less than every three days whilst overseas other than when such contact is not possible because of airline schedules or local conditions beyond the mother’s control.

(5) In the event that the mother fails to return the child in accordance with these orders there shall be an order for the child to live with the father and spend no time with the mother upon her return.

(6) Otherwise all extant applications are dismissed and the matter removed from the list of active cases.

IT IS NOTED that publication of this judgment under the pseudonym Lawler & West is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

AYC 75 of 2016

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. The proceedings between the parties involved the seeking by each of differing parenting orders. Finalisation of almost all matters in dispute between the parties was achieved in the making of final parenting orders by consent on 15 February 2017. The issue of whether the mother can remove the parties’ child from the Commonwealth of Australia for a holiday in (country omitted) and (country omitted) remains outstanding.
2. The proceedings relate to the parties’ child X (‘X’), who was born on (omitted) 2012 and is now approximately five and a half years of age. Relevantly, the final orders made on 15 February 2017 provide that each of the mother and father have equal shared parental responsibility for X, and that X live in a shared care arrangement with each of her parents, both during the week and in school holidays.
3. More particularly, the orders of 15 February 2017 provide that until X commences school in 2018, she shall live with her father on three nights each week, together with one half of the term holidays and special occasions, and that from the commencement of the 2018 school year, she will live between each of her parents in a two-week cycle wherein she spends, in week one, four nights with her father and in week two, one night with her father, making a total of five nights out of 14 in each two-week cycle with her father. The orders provide that X live with her mother at all other times. The orders further provide relevantly that the parties be able to telephone X each second night that she is in the care of the other parent. Other orders of a general nature were made, including non-denigration orders, family counselling orders for the parties, psychological counselling for the father to address, amongst other things, his previous drug and alcohol misuse, and the ensuring by the parties that they each have X attend all agreed extracurricular activities during their time with her.
4. In respect of the outstanding issue of international travel for the child X, the father relied upon affidavit evidence as set out in his affidavit affirmed on 7 February 2017 from paragraph 62 to paragraph 76 inclusive.
5. The mother relied upon affidavit evidence as contained in affidavits affirmed by her on 15 February 2016; 8 August 2016, 10 February 2017 and 15 June 2017. The mother was cross-examined as to her evidence.

History

6. The parties’ history is briefly canvassed here. The mother was born in (country omitted) on (omitted) 1979. She is now aged 37 years. The father was born in Australia on (omitted) 1976. He is now aged 39 years.
7. The parties met and began their relationship in early 2010 whilst they were both studying in (omitted). In (omitted) 2010 the mother returned to (country omitted), that being her home. She had resided in (country omitted) from the age of 12 years. In (omitted) 2011 the mother returned to Australia and to (omitted) to commence residing with the father, who had by then moved to (omitted). The parties married in (country omitted) on (omitted) 2011. X was born in (country omitted) in (omitted) 2012. The father was present. He left (country omitted) to return to Australia about five weeks before the mother and X returned.
8. The parties separated in April 2014. The mother and X moved to stay firstly with the father’s parents for a few weeks and then into the mother’s current rental accommodation in June 2014. The parties’ separation occurred some three years and six months ago now. In that time, the mother has not sought to relocate the residence of the child X from (omitted) to Melbourne, Melbourne being a location she had proposed in discussions and emails and texts with the father, and nor has the mother made any application before the Court to relocate the residence of X internationally and, in particular, to (country omitted). What the mother has sought, in approaches made directly to the father; in a mediated approach and discussions had between solicitors; and since last year by Court proceedings, is the ability to be able to take X to visit her mother, father and siblings in (country omitted) and the mother’s grandmother in (country omitted). The father steadfastly refuses his permission. He is concerned the mother may not return the child to Australia.

Evidence

1. 1. 9. The mother arrived in Australia from (country omitted) in or about (omitted) 2009. She became a permanent resident in 2013 and an Australian citizen in 2016. The mother’s parents, two of her sisters and one brother continue to reside in (country omitted) with their families. The mother’s remaining sibling, Ms R, who is currently aged 40 years, lives in Melbourne with her husband. Ms R and her husband have permanent residency in Australia and both are employed here. Ms R works as an (occupation omitted) and her husband, Mr N, works as a (occupation omitted). They came to Australia to live in 2015.
      10. X is a citizen of both Australia and (country omitted) and she holds an Australian passport. Neither of her parents have sought that she obtain a (country omitted) passport.
      11. The mother’s father is aged 83. He was diagnosed in (omitted) 2016 with stage 2A Burkitt Lymphoma. He finished his chemotherapy in (omitted) 2017 having undergone six treatments. The wife’s mother is currently aged 72 years and her health is good.
      12. The parties in the proceedings visited (country omitted) in 2011 upon their marriage. They spent approximately one week in (country omitted). At that time, they visited the mother’s grandmother, who is now aged 94 years and the mother’s extended family. The mother and X travelled to (country omitted) in (omitted) 2013 and stayed for five weeks with the father’s consent. This was of course before the separation.
      13. The mother speaks to her grandmother very often and very frequently sends her photos of X. X has not met the mother’s extended family members in (country omitted). X has, however, met and spent time with the mother’s parents and the mother’s two sisters, her brother in law and their children both in (country omitted) and when they visited Australia for a period of two weeks in (omitted) 2016.
      14. The mother originally sought to be permitted to take X out of the Commonwealth of Australia in early 2016 on the basis that her aged grandmother was ill, seriously so at the time, and she was concerned that her grandmother would not survive. The father opposed X being taken to (country omitted) and, fortunately, the mother’s grandmother recovered her health and remains alive. She is, however, approaching 95 years and the mother would like X to meet the mother’s grandmother, a ‘mother’ figure to her, before it is no longer possible to do so.
      15. The mother speaks (nationality omitted) to X and X is bilingual. The father’s affidavit evidence is that he appreciates it is important for X to be exposed to her (nationality omitted) culture and that he supports her engagement. The evidence does not entirely support that claim. The father is concerned that if the mother is permitted to take X to (country omitted) and (country omitted), the mother and child will not return to the Commonwealth of Australia. The father’s evidence is, further, that, as he is in receipt of a Newstart Allowance, he would not have the financial means to travel overseas to seek recovery of the child.
      16. The father, in support of his claims, attached to his affidavit of 7 February 2017, ‘annexure W5’, an email sent on 30 March 2015 from the mother to the father. That email was as follows:-
          • <li “=””>

          “I will never go back to your life, and I will apply to divorce on May!

   <li “=””>

Only between us is X now, I don’t know what do you do as a father to rising her for her future life.

1. <li “=””>

As you can’t woking now, and it is unknown when will you back to normal, do you think if we still stay at (omitted), no job and have to depend on Centrelink for long time, will you happy to see your daughter want to do something but her parents don’t have money to support her. In her later she might like to learn (hobby omitted) and you could’t pay for, if you love her so much as her father, please thinking about long term what is the best for her! I never stop you to see her, I really wish you can conceding bit more about her, and I don’t think you will happy to see her turn up like you, drinking and smoking. She need has a good education and some one can support her to do whenever her like the activities. I have responding as her mum to support her as much as she want!! I also wish I can successful and bring her to explore the world. And you know it is not going to happen in (omitted) because no much chance in here. Please let us go, she can come back for holiday. Thank you!”

(Errors in original)

1. 1. 17. The father suggested, by the inclusion of this isolated email, that the mother was proposing, or that the mother was requesting of him, his permission to allow the mother and X to live in (country omitted). The mother’s evidence, by way of response, was that was not the case and that the surrounding communication between the parties was very clearly that the mother was proposing that she and X relocate from (omitted) to Melbourne. The Court accepts the mother’s evidence in that regard.
      18. Whilst the mother did admit to discussing a relocation to (country omitted) in the first, approximately, two weeks following separation, thereafter the mother’s discussions with the father, when they were about relocation, was a relocation of herself and the child to Melbourne.
      19. On 13 June 2015, the mother sent a text message to the father wherein she made some requests of the father. Those requests were that:-
          1. the father permit she and X to visit (country omitted);
          2. the father return the mother’s “stuff”;
          100. the father permit the mother and child, X, to relocate to Melbourne;
          4. the father provide to the mother various documents, including X’s birth certificate and the parties’ marriage certificate.
      20. The text message forwarded by the father in reply was non-responsive to the requests of the mother.
      21. The mother’s evidence is that since mid-2015 things have improved for her and the child in the (omitted) region. Her further evidence is that she has secure and stable rental accommodation, being accommodation which she and the child have resided in for some three years, and that there is better housing afforded to her and the child in Australia and better schooling for the child in Australia by comparison with (country omitted), where she went to school, and (country omitted). Her evidence is further that X is well settled in her current environment and has various friends. The mother also has many friends; has obtained a driver’s licence and a car; and is enjoying her life in (omitted). She and the father are also enjoying a better relationship. None of these parts of the mother’s evidence were challenged by the father.
      22. The mother has also obtained some financial stability, working around 23 hours a week on a casual basis with an income of approximately $700 per week together with Centrelink benefits. She enjoys her work as a (occupation omitted) at (employer omitted) in (omitted) where she has been employed since (omitted) 2015. She has acquired (omitted qualifications) in (occupation omitted) and a (omitted qualifications) in (occupation omitted), together with a (omitted qualifications) in (occupation omitted). Her evidence is that she looks forward to being able to work full-time once X is older and a bit more independent.
      23. The mother’s, again, unchallenged evidence is that she has various friends in the community and in Australia and considers them “just like family to X and I”. The mother has many friends from the (religion omitted) Church in (omitted) (that she used to attend) and she sees those persons very often “they are very special to me”.
      24. The mother’s evidence as set out in paragraph 26 of her affidavit sworn 15 June 2017 as to residing in (country omitted) is as follows:-
          • <li “=””>

          “I could not provide for X the life that I can provide for her here. Housing is too expensive. I do not have the ability to afford a house for X and I in (country omitted). I would not be able to afford a tiny unit. My dream is to one day own a home that I can leave to X.”

      25. The mother provided further evidence, again unchallenged, that:-
          • <li “=””>

          “27. Education is very important to me. I want X to have the best education possible. I moved to (country omitted) when I was 12 years old. I went through the (country omitted) education system. I do not know about the education system in (country omitted). I do know that the education system in (country omitted) is hard to get into, there is a long waiting list and it is very expensive.

   <li “=””>

28. Children are also pressured in (country omitted) to study and attend school with no other activities. There is a lot of pressure on children to do nothing but study long hours. I like the study life balance that Australia has to offer X.”

26. The mother, the Court accepts, has an appreciation of the relationship the child has with her father and his extended family, and acknowledges that X loves her father very much.
27. The mother travels with X as much as she is able to at the present time. They have been to (omitted), (omitted), and to (omitted) on several occasions. The mother wishes for X to be able to travel internationally so that “she can see the world”. The mother wishes to show X her (nationality omitted) culture and to introduce her to her extended family, who reside in both (country omitted) and (country omitted). The mother has refused to travel without X since X’s birth. Her evidence was that:-

“My reason for travel is to show X things and to have her experience things. I will ensure that X remains in communication with Mr West during any international travel. Should an emergency arise that would require X to return to Australia, I will do my best to make sure that X returns at the earliest opportunity.”

28. In response to the father’s claim that he would not have the financial resources to attempt to recover X should the mother fail to return with her, the mother indicated that she was prepared to provide a bond to be lodged at the Court in the sum of $35,000 to ensure that X returns to the Commonwealth of Australia. The father’s response to that was that the mother’s family is wealthy and that the loss of such funds would be meaningless to them. That description was not accepted by the mother.

Consideration

29. The Court must determine what is in the best interests of the child X. There is no doubt that international travel will provide her with experiences that she would not otherwise experience, being presently prohibited from departing the Commonwealth of Australia, and will connect her in a very meaningful way with her extended (nationality omitted) family. She will be accompanied by her mother who understands very well the responsibilities of being a parent and is a parent with whom X has a secure and strong attachment. Ordinarily the opportunity for such travel would be of very significant benefit to X. The father however perceives that the mother will not return X to the Commonwealth of Australia given the parties relationship at the time of separation as he puts forward on the evidence.
30. The mother commenced the proceedings because she wanted X to see her grandmother before she died. The mother’s grandmother is a very important person in her life. The mother’s evidence is that her grandmother raised her. At the time of the institution of the proceedings, the grandmother was very elderly and very unwell. She remains very elderly.
31. The parties had some acrimonious and/or heated verbal exchanges between them in the first 12 months following separation. Matters between them settled, and they were able, ultimately, in February this year to reach agreement as to the ongoing care of their young daughter. That was a credit to them. The mother is very desirous to have X travel with her and to that end has borrowed funds from her family, to provide a bond to be lodged with the Court or her solicitors to secure X’s return to the Commonwealth of Australia. Her evidence is that her parents have provided her with such bond monies. She claims her parents are middle-class people for whom this is a significant sum. She is expected to repay the bond monies to her parents. The mother considers she has now a better relationship with the father, and appreciates that X loves her father and that her promotion of their relationship is very important.
32. The mother sought as long ago as 2009, to reside in Australia. She has done so and obtained Australian citizenship. Her overseas connection is primarily to her family in (country omitted). She has come and gone between Australia and (country omitted) including with X on many occasions, including in 2013. She is genuine in her description of all those things she sees as beneficial to X’s development in Australia. She also conveys a genuine acceptance of the father’s importance to X and has agreed to orders wherein he is significantly involved with X. To refuse X an opportunity to engage further with her (nationality omitted) culture is not in her best interests and so it is necessary to make a decision to allow this to happen. There is of course an element of risk that is not involved in making no decision by preserving the current embargo. Accordingly the mother will be required to lodge a significant sum with her solicitors prior to her and X’s departure.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 20 October 2017

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability.  An example is where the Court has expressly authorised the publication.  

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.