Overseas travel denied despite illness

Overseas travel denied despite illness

81. The mother’s counsel conceded that the Affidavit filed 16 January 2018 in support of the Application in a Case removing the child from the Family Law Watch List and the mother then being at liberty to remove the child from the Commonwealth of Australia is wholly inadequate.
82. By reference to the affidavit, the only relevant paragraph is as follows:-

5. My mother is aged and unwell.

6. I am concerned that if I do not obtain an Order to take [the child] to [Country D] to see her grandmother on this occasion, she may not see her grandmother again.
7. I wish to also take [the child] to see her extended family in [Country D] so that we can reunite as a family with my aged mother.
83. The mother’s counsel submitted that whilst not contained in the affidavit, she would be able to provide a security sum of $20,000 noting that the sum previously provided was $50,000.
84. The earlier order enabling the mother to remove the child from the Commonwealth of Australia was ultimately an order by consent.
85. Whilst it is clearly the case that the mother returned to the jurisdiction, matters have now progressed to a more heightened state of litigation. The allegations made by each of the parties are now the subject of extensive affidavit material and they are in direct conflict with each other. The nature of the allegations made by the mother are such that she does not consider there should be any time spent between the child and the father other than in the most limited of circumstances. For his part, the father considers that the mother will do all that she can to ensure that he does not have a relationship with the child. He considers that given the mother’s circumstances and her financial resources in Country D, she may well decide that it is easier to remain in Country D rather than to return to Australia.
86. The mother does not set out anything in her affidavit which would enable the Court to decide that the obvious risk of her remaining with the child out of the jurisdiction can be ameliorated or diminished by reference to the mother’s ties in Australia.
87. Moreover, there are outstanding allegations that the mother holds property overseas of uncertain value. The mother has not filed any affidavit material which speaks of her financial circumstances either here or overseas.
88. Whilst it may be entirely possible that the mother does not present as a flight risk in terms of the removal of the child from the jurisdiction, that is a different consideration to whether the affidavit in support of the application is completely barren of any assistance.
89. By reference to the mother’s affidavit, it appears to be a recitation of the various allegations that the mother makes against the father, rather than providing evidence to support the mother’s application for the child to travel overseas.
90. During the course of the submissions, the mother was given leave to rely upon an affidavit filed 16 February 2018.
91. The following appears at paragraph 10:-

Without my ability to prevent it the hospital enquired of [the child] what had happened as my language is not good. I have difficulty processing English and am much less than fluent in English. The hospital were not understanding me therefore they turned to [the child] who is bilingual and I was powerless to prevent this as assistance in language was immediately required and the hospital chose to employ [the child] in this regard…

92. An issue was raised by the mother as to her ability to comprehend the English language and in particular her affidavit material.
93. It appears that her affidavit was prepared by her solicitor and the affidavit may well have been read back to the mother before she affixed her signature.
94. During the course of the proceedings the mother has required (and properly so) the assistance of an interpreter skilled in Country D.
95. There may well be an issue as to the extent to which the mother is properly able to adopt the matters raised in her affidavit material in support of her application.
96. I do not consider that the mother’s application can succeed in the absence of any evidence to support the orders for the removal of the child from the Commonwealth of Australia.
97. There was a submission by the mother’s counsel that the application should be adjourned to enable a more comprehensive affidavit to be prepared. I decline that application. This matter has consumed significant Court time and the issues that are likely to be relevant to the Court’s consideration for a party to travel overseas with a child are well known.

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