COURT ORDERS MOTHER CAN TRAVEL TO GERMANY WITH THREE-YEAR OLD.
Irvine & Irvine (No. 2) [2019] FamCA 855 (20 November 2019)
This case is about a mother who requested for the release of her child’s passports to her and about a father who asked that for the passports to be held by the Family Court Registry at Townsville. The mother also asked for permission for the child to travel in Germany.
ISSUES:
- Whether the passports of a three-year-old child could be released to the mother.
Yes. According to Section 60CA of Family Law Act 1975, “In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration“[1]The Family Court of Australia ruled that the passport should be released to the mother, because she is not a flight risk in relation to the child. The mother is unlikely to use the passports if she is the person who has custody of them. There will be an ongoing source of conflict between the father and the mother if they will be required to make an agreement about the release of the passports. The Family Court of Australia is persuaded that the father is likely to adopt an entitled and high-handed approach in dealing with the mother based on the series of communications, initiated by the father or by his solicitor, which are annexed to the mother’s affidavit.[2] the other hand, the father is not also flight risk with the child. The father is also permitted to travel with the child overseas. [3]
- Whether the mother shall be allowed to travel to Germany with her child in each second calendar year for seven consecutive weeks.
Yes. The Mother is permitted to bring the child to Germany for seven weeks every second calendar year. [4] However, the mother must provide the father with 60 days written notice of the dates upon which she intends to travel, and a copy of the child’s travel itinerary and tickets. [5]
- Whether the mother shall have the opportunity to spend time with her child in Germany for six months prior to the start of school year in Australia.
Yes. The mother may spend six months period of extended time with her child in Germany. She may also notify the father, no later than June 30, 2020, of her intention to enroll her child in pre-school in Germany which does not exceed six months from the time of their departure from Australia. [6]The mother wants to immerse her child in German language and culture so that the same will become an organic part of who she is. She testified that bilingual children tend to progress better academically than non-bilingual children. The father opposed the mother’s suggestion of six months in Germany, because he thought that it would ruin his relationship with his child. However, the Family Court of Australia suggested that the regular use of skype could maintain his good relations with his child or he can also travel in Germany and spend time with his child. The father did not directly inform the court that he cannot travel in Germany. [7]
To get a custody of child’s passport, a parent must prove that he/she is unlikely to leave his/her country before a trial or before court renders a decision. Preference is usually given to the one who is the child's "primary caregiver”, the mother. However, both parents have the right to travel with their own child absence of any unjustifiable reason.
[1] Section 60CA of Family Law Act of 1975
[2] Irvine & Irvine (No.2) at (8-9), 2019
[3] Irvine at (12)
[4] Ibid at (14)
[5] Ibid at (14.A-B)
[6] Ibid at (18)
[7] Ibid at (20)