FLAST CASE SUMMARY: Harshani & Darnith [2019] International

Harshani & Darnith [2019] FamCA 89 (26 February 2019)

Final orders have been made for the mother to have sole parental responsibility and that neither parent can take the ten-year-old child out of Australia.

The father has now applied for permission to travel overseas with the child and is also seeking for the injunctive order of the airport watch to be removed, the mother wants the application dismissed and has made allegations that would cause apprehension of the court as to the father’s credibility, the mother is concerned the father will find a “loop hole” to take the child from Australia and never return. The Father alleges that the mother’s allegations against him are vexatious.

FACTS SUMMARY:

  • Final orders have been made that the mother have sole parental responsibility.
  • The orders included that neither parent take a the ten-year-old child out of Australia.
  • It was also ordered that the Australian Federal Police place the names of the child on the Airport Watch List. 
  • The child lives with the mother and spend times with the father by consent orders (2016).
  • The father’s application for permission to travel to Country B and Country N was concerning because of the lack of evidence.
  • The mother made allegations that would cause apprehensions of the court as to the father’s credibility.
  • The Father alleged that the mother’s allegations against him were vexatious.
  • The father failed to respond to any of those allegations in an affidavit that he filed after receiving the mother’s affidavit.

ISSUE:

Is it in the best interest of the child to grant the international travel application for the holiday period?

HELD:

Application dismissed.

In determining the application the court first and foremost looked to Section 60CA which specifies the best interests of a child are the paramount consideration. The court takes into consideration the international travel request of the parents for the benefit of the child however, if there are uncertainties about the interests of the parents in contradiction to the best interests of a child, the child’s interest must succeed.

The Judge additionally used the approach from Line and Line [1996] FamCA 145;  (1997) FLC 92-729 that outlines aspects appropriate for consideration in an international travel matter. However, it was noted that this is an interim level proceeding, therefore the evidence is yet to be tested, so findings of fact can be challenging.

There are a lot of unanswered questions in this case, the father failed to answer or deny any of the serious allegations in an affidavit that he filed after receiving the mother’s affidavit. This concerned the court and reinforced the mothers claim that the father may find a “loop hole” and remove the child from Australia never to return.

Furthermore, the father wanted to remove the permanent airport watch order, however, there are also unanswered questions about why there is a permanent travel injunction in the first place, the father just pointed to the mother as being the problem.

Moreover, the father has also consented to sole parental responsibility to the mother in 2016, the court cannot simply disregard the mother’s obligations as a parent and also her wishes. The Judge further noted the need to be cautious about disregarding claims where there is an extensive past of suspicion and lack of communication between both parents.

It was established on the balance of probabilities, due to the lack of proper material provided the ‘leap of faith’ is too great in this case.

 

 

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