Airport Watch List Removal

Airport Watch List Removal

Fullager & Barberry

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

1. 1. 60. 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.
      61. 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.
      62. 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.
      63. 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.
      64. 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.
      65. 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).
      66. 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.

67. 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).
68. 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.
69. 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.
70. 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.
71. 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. 1. 72. 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:

1. 1. (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.

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