Overseas travel in child’s best interests

Overseas travel

Mayes & Denning

Overseas Travel

  1. The father would like the opportunity of taking the child overseas from the commencement of 2019 for a period of three weeks, and every two years thereafter. By January 2019, the child will be eight and a half years old. She would have spent significant and substantial time with her father pursuant to these orders for a year and a half, including holiday periods.
  2. The mother submits to the Court that the child will simply be too young to travel overseas in January 2019. She submits to the Court that the parties ought to revisit this issue when the child is 10 years old, and that it may be appropriate for her to travel overseas with her father from when she is 13 years old. At that age, the mother submits, she will know how to call home and will understand what being overseas means. The Court accepts that these are the mother’s concerns and subjective views, but accords them limited weight due to their subjective nature.
  3. The father has an (nationality omitted) background, with both of his parents being born in (country omitted). He has extended family in (country omitted). He wants to travel with the child overseas, but particularly to (country omitted) during holidays. This would be a wonderful experience for the child, to learn about her (nationality omitted) heritage first hand. She is a child who is attending school, she is articulate and intelligent. She has a good relationship with both of her parents. She is old enough to remember significant events in her life. Overseas trips are such significant events. The Court accepts the father’s submission that taking the child to places such as (omitted), (omitted), (omitted) and (omitted) would provide opportunities of cultural enrichment for her, and would also provide a significant opportunity for the child and parent to bond over such proposed excursions. The proposed holidays are for limited periods of time.
  4. The Court finds, on balance, that permitting the father (and also the mother) to travel overseas with the child from the commencement of 2019 is in the child’s best interest. For that purpose, the child will need to hold a passport and the parties will need to ensure that such passport is applied for. An order to this effect will be made.
  5. The father holds dual citizenship. He did, until it expired in September 2015 and for a period of twenty years, also hold an (country omitted) passport. The Court understands that the father, because he has a child in Australia, can only renew that passport with the mother’s consent (even though they are no longer in a relationship). The Court does not quibble with whether this is the correct law of that country, it accepts what the father says is his understanding of that law. The mother does not consent to the father having an (country omitted) passport because she is concerned that he might move to (country omitted) (or somewhere else in (country omitted)) and not be here to support his daughter. The father, and the Court accepts his evidence, has no intention of moving to another country. He wants to travel and to be able to do so on his (country omitted) passport which would permit travel in different ways through the (country omitted) countries than would not be permitted on an Australian passport. In this strange situation which has arisen, the mother, by virtue of what the father tells the Court is foreign law, can prevent the father from exercising his rights as an (country omitted) citizen. While there may be other avenues within (country omitted) law for the father to explore which the Court is not aware of the situation remains as is.
  6. The Court does not consider it is appropriate for the mother to withhold her consent for the father to be issued with an (country omitted) passport on the stated basis. It is not supported by the evidence. For that reason, the Court will direct the mother to provide such consent as is necessary for the father to be able to apply for an (country omitted) passport. The mother has not addressed the Court as to any lack of jurisdiction or power to make such an order. Given the issues in dispute about the child being able to travel overseas, the Court holds that the power and jurisdiction exist for the orders to be made, as sought by the father, pursuant to ss.14 and/or 18 of the Federal Circuit Court Act 2001.
  7. In respect of the father’s application for the mother to sign any documents such that the child may be issued with an (country omitted) passport, the Court declines such application. The Court understands that the child holds dual citizenship. She will no doubt be able to exercise her rights under her other citizenship when she is an adult. Orders will be made for the parents to apply for an Australian passport, which will permit the parties to travel overseas with the child in accordance with the order which the father seeks and which will be made.


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