Freedom Law

I’ve just been handed a Notice to Appear – what is this?

I’ve just been handed a Notice to Appear – what is this?

In a wide range of offences now, police are empowered to require an accused person to attend at the Arrest Court in Roma Street, Brisbane or in a Regional Magistrates Court by issuing a document called a Notice to Appear.

That Notice to Appear is a notebook sized document that is handwritten by the arresting police officer. It commands the appearance of the person whose name appears on the document before a relevant Magistrates Court at a particular date and time.

The Notice to Appear is often the only document that an accused will have to indicate the charge which is to be brought against that person. The issue of a Notice to Appear inevitably leads to a Court appearance.

What then does the accused do about the Notice to Appear? Once issued with that document, an accused person is bound to appear before the Court mentioned in the Notice.

Often at this first Court appearance the accused person will not have seen or been issued with a formal Complaint issued by police and certainly will not have access to any of the document evidence that may have been compiled by the arresting Police officer.

Because of this set of circumstances it is almost certainly open to the accused person to request an adjournment from the Court for a period of time to allow the accused to obtain legal advice.

Should it be the case that you are issued with a Notice to Appear and are required to present before a Court, then it is advisable to seek early legal advice upon the charges being brought against you and some advice from an experienced solicitor about conducting this first appearance.

An accused person on their first appearance will be given an opportunity to obtain legal advice and possibly to conduct some case conferencing with the prosecutions branch and that will require a short to medium term adjournment of the proceedings.

You should take your Notice to Appear with you to the Court and be early enough to be able to present yourself to the Prosecutor in the Court in which you are to appear. You should obtain information from the Court Officer (particularly if appearing in Brisbane) of the number that has been allocated to your particular file so that you can mention that number to the prosecutor (the Arrest Court in Roma street Brisbane often has more than 100 files to deal with on any morning).

Upon presentation to the Prosecutor they will pull your file from the pile and place it on the bar table in an order which would roughly represent the order in which the appearances will be done.

It is usual in Queensland Courts for represented parties (those appearing with their Solicitor) to be mentioned in the Court prior to unrepresented parties and so having your solicitor with you at the appearance will help conclude the proceedings much more quickly.

In the event that you are required to appear on your own then firstly, you should address the Court as “Your Honour” and respectfully request an adjournment for a period of two (2) weeks to obtain legal advice or to potentially liaise with the prosecution in relation to the matter.

Provided it is your first appearance in response to the Notice to Appear you will almost certainly be granted the adjournment and bail in respect of the charges that you face.

Should it be the case however that you have had some difficulty with prior bail or appearances in other matters, then the issue of your bail might well be opposed by the Prosecution. In these circumstances, you will require some assistance at that first appearance to obtain any available bail in respect of the charges mentioned in your Notice to Appear.

We strongly recommend that you contact us should you require any assistance with a Notice to Appear.

Freedom Law – 1300 365 108

Maroochydore / Caloundra / Noosa / Gympie

Inappropriate parenting orders sought by each party

Inappropriate parenting orders sought by each party

Judge Altobelli recently dealt with a case where the Applicant (who did not presently have care of the child) sought orders that were too advanced for a 2 year old breast-feed child, where also the Respondent (who did presently have care ofr the child) sought orders that were not advanced enough:

Rattray & Santino [2018] FCCA 2904 (4 October 2018)

  1. Section 60CC(3)(d), which deals with the likely effect of changes on the child, is an important consideration in this case. The Applicant Mother’s proposal is, with respect to her and those who have advised her, ill-considered, and manifested a significant lack of insight on her part. The Applicant Mother proposes moving from a situation of never having had an overnight to 4 nights each fortnight, including a 3 night block. It means for [X], who has never spent an overnight away from the Respondent Mother, suddenly being away for 3 nights in a row. It ignores the breastfeeding. It is, with great respect, an absurd proposal. The Applicant Mother should have abandoned this idea long before it got to the Interim Hearing. It was a proposal totally insensitive to [X]’s needs for stability and continuity with the person who is, for the time being, her primary carer.
  2. But the Respondent Mother’s proposal is equally problematic, and denying the possibility of a change for at least 18 months. The uncontested facts have already been noted. But just because [X] has never spent a night away from the Respondent Mother, that does not mean she never will, and it does not mean she will not cope with that change. Just because [X] is breastfed, it does not mean she will always be breastfed, and it does not mean she will not cope with weaning in the fullness of time. Just because [X] has a routine in her Respondent Mother’s home, it does not mean that she cannot have a similar routine in the Applicant Mother’s home.
  3. Just like [X]’s routine will develop as she grows older, so too her routine will tolerate changes if circumstances mandate. The real challenge is how such changes might be facilitated.
  4. The Respondent Mother gives evidence of the unsettling that [X] experiences following extended visits. This evidence cannot be challenged at an Interim Hearing, but it is interesting to note the very appropriate fashion in which Ms Fordham, the Respondent Mother’s solicitor, framed her written submission about this:
    Thus, there is some evidence that the child may have a negative reaction to spending significant periods of time, including overnight time, away from the Respondent.

Some evidence”, “may have a negative reaction”. Whilst the Respondent Mother, understandably perhaps, associates these behaviours to [X]’s time with the Applicant Mother, the fact is, we do not know. We do not know, for example, if there are other explanations for this behaviour. Is [X], like so many other children, so attuned to her mother’s feelings that she detects the mother’s apprehension about time with the other mother? The conflict between these parents is palpable.

  1. Whilst the Applicant Mother’s proposal is simply out of the question, as being too much change too quickly, the Respondent Mother’s case does not explain why there should be absolutely no change at all.
  2. Section 60CC(3)(e) deals with issues of practical difficulty and expense. The submissions made by each parent are duly noted. In many respects, these mothers have managed the issues of distance reasonably well. Change seems inevitable, as the Applicant Mother’s base, if I can call it that, in Sydney may well need to change. But there is nothing insurmountable here.
  3. The Court is required to consider section 60CC(3)(f), issues of parental capacity; and then, (3)(i), issues of parental attitudes. As is not unusual in the Court’s experience, in cases of moderate to high conflict, there is potentially much that can be said about both parents, having regard to these considerations.
  4. It is best to be minimalist for the time being. Their diametrically opposite proposals about [X]’s time with the Applicant might suggest a lack of child focus, and might suggest a focus on their own needs instead. These are new parents. There may be insecurities and uncertainties at play, interacting with mutual suspicion about each other’s motives. None of this is helpful. The focus must be on [X]’s needs, and not on that of her mothers. The policy of the Family Law Act in this regard is quite clear.
  5. The Court must consider substantial and significant time. It is satisfied that this is reasonably practicable. But the Applicant Mother’s proposal is plainly not in the best interests of [X]. Indeed, the Court has reservations as to whether it is even possible to obtain substantial and significant time, as defined, with [X] given her age and developmental stage. Having regard to that, what should the orders be that are in [X]’s best interests?
  6. The Final Hearing is in August next year; a Report will be available before then. When all the evidence before the Court and the submissions made are considered, the Court believes that it is in [X]’s best interests to introduce limited overnight time with the Applicant Mother, but over a period of time. The focus turns to the details of the appropriate order.
  7. So the order will look like this;
  8. Firstly, I am going to make an order for equal shared parental responsibility. My reasons for that have been given.
  9. I am going to order that [X] lives with the Respondent Mother. That appears not to be in contention. There will then be two stages. Each stage will be subject to any other agreement that the parents reach.
  10. Stage 1 will be from now through to the end of March 2019. [X] is to spend time with the Applicant Mother:
    1. each Tuesday, from 9:00am to 4:00pm;
    2. each Friday, from 9:00am to 4:00pm; and
    1. each alternate Saturday, from 9:00am to 6:00pm.
  11. Stage 2 will commence from 1 April 2019, pending further order. And, again, I emphasise that this is unless the parents otherwise agree. [X] will spend time with the applicant mother:
    1. each Tuesday, from 9:00am to 4:00pm; and
    2. each alternate Friday, from 9:00am to 4:00pm; and then
    1. each other alternate Friday, from 9:00am to Saturday 4:00pm.
  12. The Court notes the evidence from the Applicant Mother about her flexible work arrangements, meaning that this proposal would be something that she can accommodate. The Court observes that these Orders regularise [X]’s time with the Applicant Mother, but in a manner that is not too inconsistent with the existing regime. Overnight time is introduced each alternate weekend, in 6 months’ time.
  13. This gives the Respondent Mother plenty of time to wean [X] off the breast, if that is what she desires, or to make alternate arrangements. In this regard, I note the Respondent Mother’s own evidence, which refers to the cessation of breastfeeding when [X] turns 2.
  14. There will be no condition, as the Respondent Mother prescribed, as to where the Applicant Mother is to spend time with [X]. She is to use her common-sense and to act in a child-focused manner, remembering at all times, as the Respondent Mother should likewise remember, that the forensic scrutiny of litigation is a burden that they will carry until the Final Hearing or settlement.
  15. There will be no requirement, as the Respondent Mother sought to prescribe, that the Applicant Mother feed and bathe [X]. There is no need to tell the Applicant Mother to do that which should be plainly obvious to her.
  16. The orders proposed by the Respondent Mother in her case outline, at (5), (6), (7), and (9), are appropriate and child-focused, and will be made.
  17. The Court is concerned about the level of conflict between these parents, and will, of its own motion, make Orders that:
    1. The parents:
      1. do not discuss these proceedings with or in the presence of [X], or allow anybody else to do so; and
      2. will not denigrate each other in the presence of [X], or allow anybody else to do so.

Read more here

1300 365 108

Copious amounts of “evidence” does not assist the Court

Copious amounts of “evidence” does not assist the Court

The Court recently commented that copious quantities of evidence does not equate to quality of proof of issues. It is very important to focus on what the issue is, what proof is required and to then test relevance, admissibility and weight to be given to such evidence.

Sargent & Selwyn (No.3) [2018] FCCA 2836 (4 October 2018)

Comments on the evidence

      1. The copious amounts of material filed by the parties does not assist the Court in determining the issues in dispute. It is most unfortunate that both parties focused much of their material making complaints about the other party and on historical issues and issues that have no bearing on the current issues in dispute before the court.
      2. I made it clear at the commencement of the trial that the focus needs to be on the evidence that will assist the Court to determine what is in [X]’s best interests. Whilst some issues are important to the parties, not every issue needs to be explored.
      3. I have carefully considered the evidence and submissions. Due to the volume of material before the court, I do not propose to address every piece of evidence and each submission made, however in reaching my decision I have considered all of the evidence and submissions.
      4. In Vismay & Shaw [2014] FamCAFC 124 the Full Court of the Family Court stated at [45]:
        It is well accepted that a judge is not required to advert to every piece of evidence or every submission made in the course of the reasons per Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; U v U [2002] HCA 36(2002) 211 CLR 238 at [80], per Gummow and Callinan JJ . The purpose of giving reasons for decision is to enable the parties to understand how the orders and decision were arrived at.
      5. In the appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
        “Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
        a) In Whisprun Pty Ltd v Dixon [2003] HCA 48(2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:

 

…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.

 

b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd[1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:

 

It is not the duty of the judge to decide every matter which is raised in argument.

 

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…

 

I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.”

Read more here

1300 365 108

 

The Australian Family Law System

Australia’s family law system helps people resolve the legal aspects of family relationship issues, including family relationship breakdown.

It encourages people to agree on arrangements without going to court.

To help achieve this, the services listed below can help families by giving them information and where relevant, referrals to providers of alternative dispute resolution services.

If you are interested in:

  • participating in a post-separation service, or a referral to another family service:
    • visit the Family Relationships Online website
    • call the Family Relationship Advice Line on 1800 050 321 (8am to 8pm Monday to Friday; 10am to 4pm on Saturdays except public holidays).
    • married couples intending to divorce
    • parents who are unable to agree on arrangements between them on parenting or financial issues
    • one of the exceptions to a family dispute resolution. Specialist family law courts have jurisdiction to make orders on those issues in cases brought before them.
  • assistance in understanding the most common family law terms used during separation, visit theFamily Law TermFinder website.

The Family Court of Australia and the Federal Circuit Court hear cases throughout Australia, except in Western Australia, where the Family Court of Western Australia is the specialist court.

Structural reform of the federal courts

On 30 May 2018, the Attorney-General announced the government’s intention to bring forward legislation for structural changes to the federal courts (excluding the High Court of Australia). For more information, visit the structural reform of the federal courts page.

Queensland / Victoria / New South Wales

Court case pending – do I need legal representation?

Court case pending – do I need legal representation?

If you have a trial date coming up and you have been representing yourself, it may be time to consider engaging legal representation for this big day (or days in some cases).

Trial preparation and trial advocacy can make or break a case.

Representing yourself in a trial is extremely stressful and difficult not only because you have no legal training, but also because you are not looking at things independently. This means you could be missing crucial points and highlights. Further, you are competing against one or two legal representatives on the other side.

In most cases, the investment in legal representation pays off in many ways. In particular, it enables you to focus on your truly critical role which as one of the star witnesses to the case. Your evidence will be of crucial importance, no matter what the nature of your case may be.

It is never too late to engage a legal representative because they will always do the best they can within the time frame available.

At Freedom Law, we specialise in last-minute legal representation, whether that be for a self-represented litigant decides to invest in legal representation for trial, or for a represented litigant who adopts a strategy of a change of legal representation for a fresh perspective for the trial.

Contact us today for a no-obligation free assessment of your court case.

Family Court and Federal Circuit Court Legal Representation All States Australia

 

 

Religious practices and the Family Law Courts

Religious practices and freedoms – how involved should the Court be?

Religious practices – In a recent case, the mother raised her concerns that the father would expose the child to a religious “cult” involved in serious misconduct allegations regarding its leader:

  1. The mother regards the beliefs and practices of the ashram which the father attends as extreme, by which I infer she means outside the realm of the Hindu religion as practiced by herself and the father growing up in their respective families.
  2. Elements relating to spiritual healing, powers of the mind to move objects, and other matters were identified in submissions, but religions tend to have beliefs and practices which are inexplicable to non-believers.
  3. The mother has raised concerns that a vegan or vegetarian diet for the child, part of the father’s practice, was a worry to her.
  4. Again, fasting and feasting, prohibition on eating certain foods such as beef or pork, are common to many world religions. It is not a matter for the Court to analyse any particular faith but simply to decide whether the adherence of a parent to that faith represents a risk to that child.
  5. The mother considers that the subject child will be put at risk of unacceptable harm or abuse if she spent unsupervised time, or even supervised time for long periods, in ashrams of this type. I infer that the mother fears that her daughter will become indoctrinated and, as a consequence, unable to defend herself against indefensible practices. The mother is fearful that the child will also be defenceless against the strongly held beliefs of the father because she, the mother, will no longer be present as a place of safety and, from her perspective, as a rational repository of a different point of view.
  6. It is understandable the parents are genuinely divided over this aspect of their daughter’s life.
  7. Each party has been surprised and disappointed. For the mother, that the father has been drawn into something she regards as false, contrived and even criminal. There were newspaper articles annexed to her affidavit raising allegations of sexual misconduct by Mr G against members of his congregation. There were other aspects of the ashram criticised in a similar way. For the father, that the mother would not even consider, when she was well enough to do it, coming to the ashram to see for herself what it was like. The father also held the hopeful belief that the mother’s health would be improved by the spiritual healing practices of the ashram.
  8. The Court should not assume that any particular beliefs are true nor should it prefer one religion to another or religious belief over non-belief in any particular religion. Religion becomes relevant because of its influence on behaviour of parents and other carers. Where the religious beliefs of a person require the person to adhere to an unusual lifestyle or approach to child rearing, the person’s behaviour may well be relevant to the child’s welfare. Accordingly, there is a balance for the Court between the welfare of the child and neutrality as to different religious views and practices.

Maroochydore / Brisbane / Southport 1300 365 108

Impartiality of Independent Children’s Lawyer in question

Impartiality of Independent Children’s Lawyer in question

In nearly every case, at least one litigant feels that the “ICL” is “biased” against them. While this feeling is understandable, it is rare that an ICL is actually “biased”, as highlighted in a recent case:

“The second question concerned the removal of the Independent Children’s Lawyer. All of this stemmed from the father’s complaint that the outline of argument by the Independent Children’s Lawyer was biased against him and that he had not acted fairly as between the parents. I pointed out to the father the relevant sections (68L and 68LA) of the Family Law Act and invited him to show me what supported his contention. There is no doubt language used by the Independent Children’s Lawyer which was infelicitous. He was critical of the father in a number of ways but those are all matters open to debate and as I observed, the court makes the decision on the evidence in the end and not the arguments. Counsel for the Independent Children’s Lawyer agreed with my synopsis above and distanced herself from some of the remarks which I agree could only be described as vitriol. They were unnecessary but probably better dealt with by the appropriate body that accredits appointments.

I agree with counsel for the Independent Children’s Lawyer that perhaps things should have been worded differently but having considered the evidence of the parties as well as that of the family consultant, the views otherwise expressed were open as an argument and otherwise properly put. I can well understand why the father does not wish to hear them as they are unpalatable but they are within the responsibilities of such a lawyer. The father pointed to a discussion he had had with his children in which they decried the activities of the Independent Children’s Lawyer. If that is so, the father would no doubt have told them that he would have their views about the substantive proceedings conveyed in some different way. The difficulty is that the Independent Children’s Lawyer is not bound by any instructions and ultimately responsible to the Court to make submissions which he or she considers to be in the best interests of the children. That seems to be what has happened here and accordingly the father’s application must fail.”

Maroochydore / Noosa / Kawana / Brisbane

Subpoenas deemed to be a “fishing expedition”

Subpoenas deemed to be a “fishing expedition”

Subpoenas are a useful way of gathering evidence, but that evidence needs to be relevant to the issues in dispute, otherwise they amount to a “fishing expedition”, as discussed in a recent case:

  1. Could these documents possibly throw some light on the issues in the substantive proceedings? The father was unable to point to anything that would affect either a change of residence or a restructuring of the contact orders. The mother’s psychologist was later explained as being involved to discuss “strategies” to enable her to deal with the father. The allegations against the mother do not tell me whether or not those strategies have been working. The health of the mother’s child Z is mentioned by the father to be something to do with her parenting but the rhetorical language he used was prefaced with a statement of his concern. Unfortunately, his concern seemed to be a suspicion rather than something of substance. That must be so when the children and Z are otherwise happy and active children.
  2. I have already observed that the father was hoping to find something from this material and that is “fishing”. If there was a basis to assert that Z is such a handful that the children’s emotional risk is at stake, there might be some argument but that is not what the father pursued. This had all of the hallmarks of an invasion of privacy for an ulterior purpose.
  3. In respect of Y, nothing I could find in the father’s evidence would justify the issue of a subpoena. No indication was given about why he had not approached the relevant doctor. No suggestion was given as to why he needed the information given Y’s rather extraordinary talents.
  4. I have to balance the potential utility of the material sought against the burden which compliance with the subpoena will cast on the recipient or rather, against the invasion of the mother’s privacy. There being no apparent utility in the material or none to which the father could point, his subpoenae must be seen as an abuse of process and the objections should be upheld. The materials received should be returned to the persons served.

Read more here

Brisbane / Sunshine Coast / Gold Coast

Undefended hearing proceeds in absence of father

Undefended hearing proceeds in absence of father

An example of the legal process rolling on whether or not litigants engage in the process:

  1. The ICL, Ms Kristine Medson, swore two affidavits on 6 September 2018.  She deposed that she emailed the father on 14 June 2018, enclosing a copy of the orders made on 7 June 2018.  Ms Medson deposed further that she advised the father that she would request that the matter proceed in his absence, in the event that he failed to comply with the trial directions and/or did not appear on 18 September 2018.  Ms Medson indicated that a hard copy of this correspondence was sent to the father at his residential address.  She deposed further that she emailed a copy of the Case Outline of the ICL to the father on 5 September 2018.
  2. In her second affidavit of 6 September 2018 Ms Medson deposed to a telephone conversation with the father on the same date.  Ms Medson set out this conversation in the following terms:

    5.           At approximately 12.25pm on 6 September 2018, I received a telephone call from the Respondent Father.  He informed me that he had received some e-mails over the last few days and that he was “peeved by what has been going on here”.

    6.           He went on to say words to the effect that “There is continuation of the allegations sexual abuse allegations.  None of it has been proved to a Court.”

    7.           I asked the Father whether he is intending to participate in the proceedings.  He responded with words to the effect “I am sick of the lies that have happened.”

    8.           I then asked him “Are you intending to come to the hearing on 18 September 2018?” and he responded with words to the effect “Is she (the Mother) going to turn up to the hearing?”  I responded “I believe so.  But that is irrelevant.”

    9.           The Father responded with words to the effect “I am not going to put up with this shit from you, the Court or my ex-partner.  Running my name into the ground.  I don’t appreciate my name being slandered into the ground.  I know that I have not done anything to my daughter.  How would you feel if I took your children (if you have any) off you?  You do not have the right to stop me from seeing my daughter.  That is my blood.  It is evil and barbaric what you are doing.  And you should be reprimanded for it too.  I will be going down the legal process to sue you, and I have the money to do it and I will go to the media.  I already have a politician on my side, who is trying to help me get my daughter back.”

    10.          I said to the Father “You have an opportunity to attend Court on 18 September 2018 and explain your position to the Judge.  If you do not attend Court on 18 September 2018, the matter will proceed in your absence.”

    11.          The Father responded with words to the effect “How can it proceed in my absence?  It is illegal to do so.”

    12.          I responded with words to the effect “It is not illegal, and I suggest that you get some legal advice in relation to that.”

    13.          The Father responded with words to the effect “I have had legal advice, and it is illegal.  I am telling you that.  If I don’t get my daughter back or get access to her, I will go down a legal path and splash your name and your firms name all over the media.”

    14.          I told [Mr Murnane] that that was okay and that it had been a pleasure speaking to him and said goodbye and hung up.”

  3. Against this background, I determined to deal with the application of the mother on an undefended basis.  The ICL sought orders in accordance with the Minute contained in her Application in a Case and the mother supported this proposal.  In my view, however, there was some doubt that the father had received adequate notice of these proposed orders.  The father did not refer specifically to the Outline of Case of the ICL in his conversation with her on 6 September 2018.

Read more here

Maroochydore / Brisbane / Southport

Airport Watch List Removal

Airport Watch List Removal

Fullager & Barberry

3) (m) Any other fact or circumstance that the court thinks is relevant

      1. The Court refers to the father’s concern, discussed above, that the mother does not intend to facilitate a relationship between the child and himself moving forward, together with his allegations that during the relationship the mother said to him on a regular basis that she really wants to move overseas, that she doesn’t care where she moves overseas to as long as it is somewhere where it snows, together with other remarks allegedly stated by the mother to the father prior to his institution of legal proceedings in 2012 that the mother proposes to move to Sydney or else she is going overseas.
      2. It is noted that the mother denies the father’s assertions above that she allegedly had threatened to take the child overseas to live with her.
      3. The mother asserts that she is firmly based in Australia; she has permanent part-time work, and her parents, her siblings and their families live in Australia. The father submits that the mother does not have sufficiently strong ties to Australia; he submits that the mother owns no property in Australia.
      4. The Court notes that the mother has travelled overseas with the child on two occasions and returned to Australia since the above alleged comments were made by her to the father, without incident. Those trips were in about mid-2012 and in December 2013/January 2014. On both occasions the mother travelled with the child to (country omitted). The Court regards the mother’s return to Australia with the child following these two previous trips as particularly significant.
      5. The mother’s affidavit filed 10 November 2016 sets out a broad itinerary and timeframe for travel to (country omitted) and the (country omitted). The mother states in her Affidavit filed 9 September 2016, inter-alia, that she is very happy to provide all details about her proposed travel, however she cannot afford to incur the cost of tickets/accommodation until the trip is confirmed (by the Court). The mother states in her latest Affidavit that she has not yet booked any flights or accommodation. These positions of the mother would appear quite reasonable.
      6. The Court notes the mother’s written submission that although (country omitted) is not a separate signatory to the Hague Convention, the Convention applies by virtue of (country omitted)’s status as an overseas territory of the (country omitted).
      7. The mother submits that:
        (country omitted) is a part of the (omitted) group of (country omitted) and was designated as an overseas territory of (country omitted) in (omitted) and given a Territorial Assembly on (omitted).

 

The Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) was ratified by (country omitted) on 16 September 1982 and came into effect in the whole of the territory of the (country omitted) on 1 December 1983. (omitted) (Hague Conference on Private International Law) notes that:

 

The instrument of ratification of (country omitted) clearly indicates that the Convention applies to the entire territory of the (country omitted). Consequently, besides (country omitted) and the Overseas Departments ((country omitted), (omitted)), the Convention applies to all of the other nationality omitted) overseas territories.

In those circumstances, although (country omitted) is not a separate signatory to the Convention, the mother submits the Convention applies by virtue of (country omitted)’s status as an overseas territory of the (country omitted). However even if there is any difficulty in that regard the mother submits that there is no risk that she would remain in (country omitted) or any evidence to support that contention. The benefit to X outweighs any (remote) concern in that regard.

  1. Further, the mother, through her solicitors, has provided to the Court the mother’s solicitor’s letter to the Consulate General of (country omitted) in Sydney dated 24 November 2016 requesting confirmation that the Convention applies in (country omitted). The mother’s solicitors had also provided to the Court the Consulate General of (country omitted)’s response to the above letter dated 1 December 2016 confirming that the Convention does so apply to (country omitted).
  2. The Court accepts the mother’s submission that although (country omitted) is not a separate signatory to the Convention, the Convention applies by virtue of (country omitted)’s status as an overseas territory of the (country omitted), as confirmed by the Consulate General of (country omitted), Sydney.
  3. In any event, even if there is any doubt to the above applicability of the Convention to (country omitted), there is considerable force to the mother’s submission that the evidence presently before the Court does not indicate that there is a significant risk that the mother would remain in (country omitted) with the child, even accepting that she apparently has some relatives there.
  4. In conclusion, the Court is of the view that should the mother be permitted to travel with the child to (country omitted) on holiday (noting she also intends to travel with the child to the (country omitted)), it is highly likely that she will return to Australia with the child following the holiday. In the remote event that she stays in (country omitted) with the child, the father should be able to invoke the relevant provisions of the Convention.
  5. The father and the ICL submitted that the mother’s proposal to spend holiday time overseas with the child for 6 weeks in any one calendar year would be detrimental to her educational advancement. There is some force to this submission, noting that the child will be embarking on her first year of formal education in 2017, even taking into account the benefits to the child of speaking the nationality omitted) language overseas, and strengthening her relationships with her extended family overseas.

Summary

      1. Evaluating the above relevant considerations under section 60 CC of the Act, the Court is of the view that it will be in the best interests of the child to make interim orders as follows regarding the travel issue:
          • (1) The Court requests that the Australian Federal Police remove the name of the child

        X

          • born

        (omitted) 2011

          from the Airport Watch List at all points of international arrivals and departures in Australia.

(2) The mother is at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday

on the following conditions:

      • (a) the mother notifies the father of the holiday time not less than 2 months prior to the proposed travel (b) the time outside Australia is no longer than 4 weeks in any one calendar year (c) the mother provides the father with a copy of the travel itinerary and the return air tickets no later than 21 days prior to the travel (d) the mother shall be permitted to travel on a holiday with the child to (country omitted), being an overseas territory of the (country omitted), and otherwise to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction

(3) The father’s time with the child is suspended during any period that the mother and the child are travelling pursuant to order 2 and the mother shall ensure that the child is available for make-up time with the father within 2 months of the trip.(4) It is noted that the mother plans to take the child to (country omitted) and the (country omitted) in (omitted) 2017.