Johannes Schmidt

Barrister + Mediator + Arbitrator

Category: Children

Travel Restraints and the Australian Federal Police Family Law Watchlist

13 July 2026 /

Overview

In this episode, I discuss restraints against travelling with children, including whether such restraints can be made in relation to travel within Australia. I also discuss the Australian Federal Police Family Law Watchlist. 

Travel restraints

International travel restrained by default

As I discussed in earlier episodes, once a parenting order is in place in relation to a child, or even an application has been made in relation to a child, the default position is that it’s an offence to remove the child from Australia without a court order or authenticated written consent of the other parties. 

In effect, a restraint is automatically in place as soon as a parenting application is filed.  That means it’s not really strictly necessary to apply for a restraint against another party, or another parent, taking a child outside of Australia.  However, for practical reasons, it’s generally a good idea to seek an express order if a client wants to restrain the other parent/party from travelling, and I address that further below in relation to the AFP’s Family Law Watchlist. 

Injunctions in parenting proceedings

The power to order an injunction in a parenting case is found in Section 68B of the Family Law Act.  When one looks at its subsections, it quickly becomes clear that a travel restraint must be made on the basis of the personal protection of the child. 

The test for a travel restraint is really the other side of the coin of the test for a travel application, which I discussed in the last episode.  The same considerations under Kuebler and Line apply. 

Restraints against travel within Australia?

There is no default restraint against travelling with a child within Australia.  In other words, parents are generally at liberty to travel within Australia without any permission being required from the court or another parent.  That makes sense, because as long as the child remains within Australia’s borders, it’s within the reach of the court.  That means the court can, in appropriate cases, make a recovery order, and the Australian Federal Police can execute a recovery order.

However, as I mentioned earlier, the court has power to make injunctions under Section 68B.  It’s possible to apply for a restraint against travel within Australia, whether it’s restraining a parent from removing a child from a particular geographic area, or restraining a parent from taking a child to a particular geographic area.  But the court would need to be persuaded that that restraint is necessary for the personal protection of the child.

From the cases that I’ve read, that power is usually only exercised in relation to permanent relocations, rather than short-term travel.  In fact, a lot of the authorities about relocation have a carve-out specifically for short-term travel. 

Australian Federal Police Family Law Watchlist

Returning now to international travel, the Australian Federal Police maintains the Family Law Watchlist, which is also sometimes referred to as the Airport Watchlist.  When a child is on the Family Law Watchlist, and the child is about to leave Australia – typically  when the child is taken through passport control at an airport or a seaport – the Watchlist automatically triggers an alert to the AFP, and, generally, that will mean the child cannot travel through passport control, and won’t be allowed to leave the country. 

How to add a child to the Family Law Watchlist

There are generally two ways to request that a child be added to the Family Law Watchlist:

  • When a court makes an order restraining a parent from taking the child overseas, that is usually coupled with a request in the order that the child be added to the Family Law Watchlist.  The registry of the court which has made the order will typically communicate that request to the AFP on the same day, and the AFP will then action it. There’s no need for the party, or their lawyer, to communicate with the AFP. The court manages that process. 
  • The other way is for a party, directly, to request that a child be added to the Watchlist, and the AFP has a form for this on its website.  That form needs to be submitted together with a copy of either the order restraining the travel, or an application for an order restraining the travel.  That’s really quite a powerful thing, because it means that, before the other party has even been served with the application, let alone a court having made any determination, a child can already be added to the Watchlist. 

Technically, in my view, any application for a parenting order ought to be sufficient to add a child to the Watchlist, given the provisions of Section 65Z, but the AFP’s form specifically requires an order, or an application for an order, restraining the removal of the child from Australia.  On a practical level, the AFP’s position makes perfect sense to me.  If one parent is going to place the child on the Airport Watchlist, they really should be squarely putting the other parent on notice of that, and giving them the opportunity to resist that application, and to seek permission to travel overseas with the child.

Abuse of the Watchlist

Unfortunately, the self-help option, where a party can request that the AFP add a child to the Watchlist upon the filing of an application seeking a restraint against international travel, is vulnerable to abuse.  A recent example of this is Brasch J’s decision in Robinson & Heyden [2026] FedCFamC1F 67.  In that case, a Judge in Division 2 had, fairly recently, made final parenting orders, including that:

  • the father have sole decision-making responsibility for the child;
  • the child live with the father; and
  • the child only spend time with the mother in accordance with the child’s wishes.

The father was planning to relocate overseas with the child, back to his home country.  The mother then issued an application seeking a travel restraint, and immediately requested that the child be placed on the Watchlist.

Brasch J found that, given the final orders that had been made, the father was at liberty to relocate internationally without the mother’s consent, and without a further order. Her Honour ultimately found that there was no basis to reopen the case under Section 65DAAA, and, therefore, dismissed the mother’s application, and ordered that the child be removed from the Watchlist.

To protect against further abuses of the Watchlist by the mother, Brasch J also made a specific order giving the father liberty to apply at short notice, including on weekends and after hours, directly to her Honour’s chambers.

Travel Applications in Parenting Proceedings

1 July 2026 /

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Overview

In this episode, I discuss travel applications. Those are applications by a party to take a child outside of Australia for the purposes of short-term travel.  I also discuss some related passport issues. 

Default position

It’s important to be aware that the default position for a child, who is subject either to an extant parenting order or an application for a parenting order, is that you’re not permitted to remove them from Australia, except pursuant to a court order, or with authenticated written consent of every other person who is party to the extant order, or the extant application. I covered that in some detail in the previous episode, so check that out if you haven’t seen it. 

Travel applications

Travel is important for many Australian families.  We’re quite an isolated country geographically, and many, many of us are immigrants.  Many more are descended from immigrants, and still have ties to family, culture, and language overseas, and want to keep those ties alive for their children.

Because many families have two parents who are descended for migrants, or who are migrants, it’s often a matter of consent to have travel provisions in orders, because both parties are motivated to be permitted to travel, as long as certain conditions are met. In the previous episode, I discussed some considerations for when you are drafting travel orders. 

Sometimes, there are circumstances where one party wants to travel with a child and the other doesn’t consent.  That’s where travel applications come in.

Timing considerations

It’s often very important to turn your mind to timing issues in relation to travel applications, particularly when it’s a discrete application for a particular trip.  You need to factor in the usual lead times, particularly when you’re filing an Application in a Proceeding.  You have to then wait, usually for a mention before a Judicial Registrar who doesn’t actually have the power to determine the travel application.  Then, from that hearing, you then get a listing to a defended interim hearing before an officer who does.  That can cause a significant delay, so factor that in when talking to your client about when they want to travel, and what are realistic timeframes to get a matter on to permit the travel. 

Of course, there are sometimes urgent circumstances that motivate a party to want to travel with children. Say, for example, a child’s grandparent overseas is terminally ill, and is expected to pass away soon.  The parent may really want to take the children to see their grandparent before they pass away.  In those cases, you really need to think about the urgency of the application, and the usual processes to seek for an urgent hearing and an abridgement of time for service apply. 

The Kuebler factors

A travel application is, ultimately, of course, a parenting application, so the court has to consider the child, or the children’s, best interests under Section 60CC of the Family Law Act 1975.  But there are some travel-specific considerations, which emanate from the appellate authorities in relation to travel orders.  The leading authority is Kuebler and Kuebler [1978] FamCA 26.  The Kuebler factors are

  • the duration of the proposed travel;
  • the bona fides of the application;
  • the likely effect on the child of being deprived of time with the other parent;
  • any threats to the child’s welfare; and
  • the degree of satisfaction that the court has that the parent will return the child, as promised. 

Duration of travel

As general propositions, in my experience:

  • a shorter trip is more likely to be permitted than a longer one; and
  • a trip which fits neatly into school holidays is more likely to be permitted than one which sees the child missing school.

In my experience, the ratio of travel time to time the destination can also be relevant. In one matter that I was involved in, the parties lived in a regional town.  The travel time to the nearest international airport was something like 4 – 6 hours, and that, coupled with needing to arrive at the airport 3 hours before departure, the actual flight time to the transit country in Asia, the time in transit, and then the flight time on to Europe, and then more drive time at the other end to get to the town where the extended family lived, meant that the travel time door-to-door was something like 48 hours each way. 

In that case, the father didn’t oppose the mother taking the children overseas.  The fight was over the duration of the trip.  The mother was meant to have the second half of the term holidays, which was the usual 7 – 10 days, depending on how long the school holidays are.  The father said “it’s fine for the mother to travel, as long as she leaves and comes back during her scheduled time with the children.” 

The court took into account that, if that were to have occurred, the children would have spent 48 hours there and 48 hours back, so about 4 days’ travel time, to only have 3 or 4 days in Europe to spend with the extended family. 

The court considered that that would not have been in the children’s best interests, and therefore permitted the longer travel time. 

Bona fides

The court wants to be satisfied that there’s a legitimate purpose for the trip – that it’s not being done for the ulterior purpose of just keeping the children away from the other parent.  

It’s not a reasonableness test, and there’s subsequent authority on that. There’s no requirement that the trip be worthwhile in a utilitarian or economic sense. 

There just needs to be a legitimate purpose, and the court needs to be persuaded that that is why your client wants to travel with the children. 

Effects on the child of deprivation of time with the other parent

This factor will really turn on the specific circumstances of that family. 

For example, if there’s an extant order for the children to have half of the long summer holidays with each parent in a block, and the applicant wants to travel within their 3-week block of the summer holidays, there’s obviously not going to be a deprivation of time with the other parent, because the children wouldn’t have spent time with that other parent then anyway.

But if the travel time overlaps with the other parent’s time, then this might be a more relevant factor.  In my view, it’s a good idea, if it’s that sort of an application, to also, with the travel application, seek orders for make-up time with the other parent.  Be proactive about it, offer that make-up time, and seek an order for it.  That might make the court more likely to permit the travel, knowing that there’ll be make-up time there. 

Threats to the welfare of the child

There might be some specific threats relevant to the case.  For example, if there’s some allegation that some extended family member has abused or molested a child, that might be a specific factor that the other side raises, and that the court considers. 

I haven’t come across a case like that. 

The ones I’ve come across, where there’s been a threat, have been where there’s a DFAT advisory that says do not travel or reconsider your need to travel, because it’s a war zone, or because of terrorist activity, or that sort of thing.  In those cases, it’s really important for your client to put on evidence as to how they’re proposing to manage, and mitigate, that risk.  I have had orders made permitting a client to travel with a child to a reconsider travel destination, because the client had really made plans, with their extended family, of travelling away from the particular terror hotspots, and ensuring that they had escape plans. They had places they could drive to, to get further away, and that sort of thing. 

Degree of satisfaction that the travelling parent will return the child – the Line factors

The court will often require some form of security from the travelling parent.  Typically, that’s in the form of a bond, often paid into the other party’s lawyers’ trust account.  It can also be some sort of encumbrance on title to a real property owned by the travelling parent, and that’s often done by way of lodging a caveat.

The Full Court in Line & Line [1996] FamCA 145 clarified that the purpose of that security is twofold:

  1. to provide sufficient incentive for the travelling parent to return; and
  2. to effectively give the left-behind parent effectively a fighting fund to litigate for the return of the child, if the travelling parent doesn’t return as ordered.

In Line, the Full Court set out a number of considerations to take into account in relation to this Kuebler factor:

  • the ties which the travelling parent has to Australia, which include things like an interest in real property, interest in a business, and familial and personal ties;
  • any motive the travelling parent may have not to return the child to Australia, including conflict between the parties, particularly if that’s conflict in relation to the child or the children;
  • the ties which the travelling parent has to the destination country, including, again, things like an interest in real property, interest in a business, and familial, and personal ties;
  • whether the destination country is a signatory to the Hague Convention on International Child Abduction that’s recognised by Australia – of course, in relation to that, you can just look at the Attorney-General’s website on the Hague Convention, which has an up-to-date list of signatories recognised by Australia; and
  • the financial circumstances of the parties – for example, if the travelling parent is worth $50 million, a $10,000 bond is unlikely to incentivise them to return.

Don’t forget to adduce evidence

If your client is not seeking a specific travel order for a specific trip, but is just seeking a general travel order in a final orders application, don’t forget to address the travel proposal in the trial affidavit.

Remember, counsel is not permitted to make submissions without a basis in evidence.  In any event, if there’s no evidence, the judge will just say, “I’ve got no evidence. I can’t determine this issue.”  

Even if there’s no specific travel proposal, the client will, presumably, have some reason for seeking the travel order, whether it’s that they have family overseas, or they just want to be able to go on holidays.  Whatever the reason, make sure it’s there.

Can the court make a general order without a specific proposal?

There are some authorities that question whether the court can make a general travel order on a final basis in the absence of a specific proposal.  For example, Judge Glass, in Jefferson and Hooper (No 2) [2025] FedCFamC2F 1170, said that, in the absence of a specific travel proposal, his Honour couldn’t consider the Kuebler factors and the Line factors, and therefore couldn’t determine the travel application. 

Other judges have taken the opposite view.  Harper J, in Alard & Dinesh [2024] FedCFamC1F 260, considered a general application, and considered that, in the circumstances of that case, there could be no confidence that the parents could agree on any future travel arrangements.  Harper J therefore considered that it was in the child’s best interests to make the travel order, because it was the course that was least likely to lead to further litigation about the child. 

That hearing pre-dated May 2024, so it was the old Section 60CC which applied, and Harper J specifically referred to Section 60CC(3)(l), which was a provision for making a decision which is least likely to lead to further litigation.  

That provision does not have an equivalent in the current version of Section 60CC. In Ballard & Kellam (No 2) [2026] FedCFamC1F 115, Christie J nevertheless applied the same concept, citing Alard & Dinesh, and reached the same conclusion that it was in the children’s best interest in that case, to have final orders which were least likely to lead to further litigation. 

Of course, there’s still the catch-all provision, now under Section 60CC(2)(f), that says the court can take into account anything it considers relevant to the child’s best interests.  Therefore, the course least likely to lead to further litigation is still an argument that’s open to you and to your client in seeking a general travel order. 

Passport considerations

Having a travel order is all well and good, but a travel order does no good if the child doesn’t have a passport.  Without a passport, they won’t be able to leave Australia, and they won’t be able to enter the other country.

It’s important, in my view, to couple a travel application with an application for certain passport-related orders.  The typical sort of orders to consider are:

  • an order compelling the other parent to sign the passport application; and
  • frameworks for:
    • where the passports are to be held; and
    • when they get passed between the parents, including in time to obtain visas and that sort of thing.

For Australian passports, the usual requirement is that any person with parental responsibility has to sign the application.  

It is also possible to seek an order that your client be unilaterally permitted to apply for a passport.  Of course, you need to have evidence that supports that.  The typical things where I’ve seen clients achieve that sort of an order from the court, are where: 

  • the other parent either hasn’t engaged in the proceedings at all, and therefore there’s no confidence that they’ll sign anything; and/or
  • the other parent has persistently breached court orders.

Again, think about those things, put on the relevant evidence.

Is sole decision-making responsibility enough for a unilateral application?

You may also have a case where your client already has an order for sole decision-making responsibility or, if it’s a pre-May 2024 order, sole parental responsibility.  Technically, that is sufficient for them to apply unilaterally for a passport in the absence of another order, because their signature alone will meet the requirement that all persons with parental responsibility sign the application. 

I’m told by many instructors and clients, though, that the passports office doesn’t always fully understand, or isn’t fully aware, of what a sole parental decision-making responsibility order means.

Therefore, it is prudent to seek a specific order which expressly authorises the client to solely apply for the passport, with reference to Section 11(1)(b) of the Australian Passports Act 2005.

Sections 65Y – 65ZAA and Drafting Travel Orders

22 June 2026 /

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Overview

In this episode, discuss how the Family Law Act 1975 impacts on parents wishing to travel overseas with their children, some considerations to take account of when drafting travel-related orders, and also some things to avoid when drafting those orders. 

Sections 65Y to 65ZAA

You are probably aware that Part VII of the Family Law Act relates to children. It’s Division 6 of Part VII, which relates to parenting orders other than child maintenance orders, and Subdivision E of that Division deals with restraints on taking, or sending, children outside of Australia. It’s really important for both parties and lawyers to be really across the provisions of sections 65Y through to section 65ZAA, because breaches of those sections are an offence, and the penalty is imprisonment for 3 years. So they’re quite important. 

In essence, what those sections provide is that if a child is subject to an extant parenting order, or an application for a parenting order has been made in relation to a child, it’s an offence to take, or send, the child outside of Australia, unless it’s permitted by a court order, or there is authenticated written consent of the other parties  –  either the other parties to the parenting order, or the other parties to the application. 

There are corresponding provisions which make it an offence to retain a child outside of Australia for longer than permitted by the order or the written consent, but they have an exception where the person retains the child because it’s reasonably necessary to do so in order to prevent family violence. 

In my experience, it’s incredibly common for both parties and lawyers to overlook the requirement that the written consent to be authenticated. Authentication for this purpose is prescribed in regulation 51 of the Family Law Regulations 2024, which, in turn, refers to the legislation at Commonwealth level related to statutory declarations. In essence, what is required is that someone who’s authorised to take a statutory declaration endorses the written consent with two things:

  1. that they have taken reasonable steps to verify the identity of the person signing the consent; and
  2. that they’ve witnessed the signature. 

I don’t think, in 15 years of practice, that I have ever actually seen an authenticated written consent prepared for travel. I’m also not aware of anybody who’s travelled based on a written consent, which wasn’t properly authenticated, being prosecuted. Nevertheless, it’s an important thing for lawyers to be aware of, because, of course, we have obligations:

  1. not to aid anyone in committing an offence, and even a technical breach of those provisions is an offence; and
  2. to give correct advice.

So it’s really important that lawyers are across this stuff. 

Drafting Travel Orders

It’s important to draft travel-related orders clearly and precisely, both when drafting applications and when drafting consent orders.

It’s especially important for final orders. If final orders are in place, and a parent wants to travel with a child beyond what those final orders provide for, they’ll need, again, authenticated written consent or a further order of the court.

A further order will require a new application, and will be subject to s 65DAAA requirements. That applies even if they just want to travel for, say, one day longer than what the orders provide for. So it’s really important to get this stuff right. 

Time Periods

In terms of travel periods, if it’s an order for specific travel, for one particular trip  –  for example, you’re drafting an Application in a Proceeding to allow travel on an interlocutory basis  –  be sure to be really precise with the start and end times, because the travel will have to fall within those periods. Make sure you get really clear instructions on when the travel needs to occur, including transit times, travel time to the airport, and so forth. 

When you’re drafting more general orders that permit travel during particular classes of times, again, make sure you actually get instructions to ensure that what you’re drafting is sensible for the case.

Typically, the sort of orders that get drafted are:

  • permitting that either parent can travel with a child during their regular time during school holidays, as provided for elsewhere in the orders; or
  • that either parent can travel with a child during any time when they’ve got the child in their care. 

Conditions

It’s common to include conditions on the travel.

The most common one is a notice requirement. For example, the orders might say that, no later than 30 days before the proposed start of the travel, the travelling parent has to provide the other parent with certain information like:

  • itineraries;
  • flight details;
  • contact details; and
  • proof of travel insurance. 

You might also have restrictions on where the travel can occur.

The common ones which I usually discuss with clients, and often include in orders, are:

  • restrictions based on DFAT advice –  if DFAT’s advice for a particular location is do not travel or reconsider your need to travel, that might be excluded; and
  • restricting travel to non-Hague countries.

With a non-Hague restriction, you need to be really, really careful, because a lot of the destinations that Australians regularly like to travel to, aren’t signatories to the Hague Convention.

For example, Indonesia is not a signatory. If you prohibit non-Hague countries, then that family can’t travel to Bali, unless there’s some other provision in the orders or there’s consent. 

I also like to include another order after the main travel order, to the effect that, except as provided for in the travel order, the parties are restrained from taking the child or the children outside of Australia, except with prior written consent of the other party. And there’s two reasons I like to include that order: 

  • The first one is technically redundant, and that’s just to make it clear to the parties that, other than that, they need consent of the other parent. That’s the position under the Act anyway (see above), but it makes it a bit clearer for the clients. 
  • The exception in this order is where there’s prior written consent, which notably gets rid of that requirement for the consent to be authenticated. The reason I like that, particularly for final orders, is that it avoids the parties then having to go back to their lawyers, or to find a JP, to provide that written consent to ensure they’re not technically committing an offence, particularly if it’s for something small. 

Say, for example, the orders provide for travel during school holidays only, but the parties agree that the child can miss the first two days of the next term. That can then be just agreed in a WhatsApp message, or an email, or however the parties choose to communicate in writing, without having to see the lawyers or find a JP.

It could also be for when a party hasn’t complied with a notice period. For example, if the requirement is that they have to give 30 days’ notice for the itinerary, but they’re travelling because there’s been a death in the family and they need to go to the funeral urgently. 

Things to Avoid

I’ve got a real bugbear with a really common type of travel order that I see: an order that basically sets out all the stuff that I’ve suggested setting out, but still makes it subject to agreement by the other party.

That doesn’t actually permit anything. It just summarises the stuff that they should be talking about to inform whether or not they’ll agree. It leaves the parties no better off than just having no travel orders at all, and just leaving it to section 65Y through to 65ZAA.

In my view, drafting those sorts of orders is both a waste of your time as a lawyer, and a waste of your client’s money in paying you to draft it. 

The other thing that you need to be careful to avoid is just slavishly following a precedent. Orders need to make sense for the particular family, and in the context of the overall orders that are being drafted. 

A recent example I dealt with was a matter where orders were drafted on a final basis at a court hearing. Everybody was at court. There was a bit of time pressure because they were there for an interim hearing or a mention or something, and decided to draft final consent orders there and then.

As best I could ascertain, those orders were drafted by the independent children’s lawyer, using that independent children’s lawyer’s usual precedents. Those orders included a travel provision, very much in the way that I’ve recommended drafting it. It had the notice requirements, it had the restrictions, and all that sort of stuff in it.

And it said that the parties could travel at any time when the child is scheduled to regularly spend time with the party under the parenting orders.

What that provision failed to take account of was that the only regular time specified in those orders for the child to spend with the father was two nights on three out of every four weekends. The context there was the parties lived several hours apart. Somewhat unusually, those orders did not include any specific time during school holidays. The three out of four weekends just rolled all the way through the year.

The effect of that was that whilst there was, to the understanding of at least the father, an order that permitted him to travel  –  and he thought it meant he could travel quite liberally during the holidays  –  what the orders actually did was permit him to travel overseas for two nights on three weekends out of every four. 

Of course, given the distance from Australia (in this case, Victoria) to pretty much anywhere except New Zealand (or perhaps for people who live further north, parts of Indonesia, PNG, and other places around there), Australians can’t really do international travel in two nights. It’s not like we live on the border of Germany and France, and can just hop across the border and back for a weekend.

So those orders were really quite useless. 

In that particular case, the father wanted to travel overseas to see family. Both the parents, and the child, were born overseas, but he couldn’t do it. The mother wouldn’t agree. He had to make an application to the court, and it was listed for a s 65DAAA threshold hearing.

You need to be really, really careful with how you draft these orders and don’t look at the orders in isolation for travel. Look at them in the context of the overall case and the overall orders. 

Shams & Alkaios (No 2) [2024] FedCFamC2F 620

1 June 2024 /

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In this episode, I discuss the judgment of Judge Glass in Shams & Alkaios (No 2), which is the first published parenting case determined on the basis of the 2023 amendments to Part VII of the Family Law Act.

Overview

As everyone who has anything to do with family law knows, the parliament passed the Family Law Amendment Act 2023 last year, which had a particular focus on Part VII of the Family Law Act 1975.

Since the first Exposure Draft of the bill was released, there has been much discussion about the effects of the amendments.

I was on the record early with a view that the amendments were, for the most part, a simplification and rewording of the same concepts, aimed at making the provisions easier to understand for self-represented litigants, rather than a massive upheaval.  Whether I was right or wrong, my views will forever be freely available online to haunt me in a TEN Fireside Chat with Jacky Campbell.

The amendments took effect on 6 May 2024.  That day, Judge Glass of the Federal Circuit and Family Court of Australia (Division 2) in Melbourne commenced a 3-day parenting trial.  

No doubt many other judges did the same, but Judge Glass has the distinction of delivering the first published judgment applying the amended provisions.

His Honour delivered judgment in Shams & Alkaios (No 2) on 20 May 2024.

It was a fairly straightforward relocation matter where the children had been living with the father in Melbourne, and the mother sought a change of residence for the children to live with her in Queensland.

There’s nothing extraordinary about the facts of the case, but it is the first (and at the time of writing only) published decision based on the freshly amended Part VII.

So, how did Judge Glass consider and apply the new provisions?

Are there drastic impacts as a result of the new simplified objects of Part VII?  

Does the absence of a presumption in favour of equal shared parental responsibility mean that sole decision-making orders will be the new normal?

Have the section 60CC best-interests considerations changed everything?

Decision-Making

The first thing one sees when looking at the judgment is order 1, which reads:

The parties make joint decisions in relation to all major long-term issues in relation of the Children…

This is the new equivalent to the old order for equal shared parental responsibility, but in language which makes it absolutely clear that the order is about decision-making, and nothing else which might have been read into the term “parental responsibility”.

Of course, absent from the judgment is any discussion of a presumption, as none exists anymore.

Decision-making is now just another aspect of the discretionary assessment of best-interests considerations.

However, in determining the allocation of decision-making (after analysis of the best-interests considerations, which I discuss below), Judge Glass referred to the “encouragement” prescribed by section 61CA, which provides:

If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged: 

(a) to consult each other about major long-term issues in relation to the child; and 

(b) in doing so, to have regard to the best interests of the child as the paramount consideration. 

New s 60B – Objects of Part VII

Judge Glass noted that he was guided by the objects of Part VII, as found in section 60B, but did not otherwise refer to them.

Section 60CC Factors

The new section 60CC is much shorter and simpler than the old one.

The old language of protecting children from harm has been replaced by a focus on the safety of not only the child, but also the child’s carers.

Section 60CC(2)(a) – Arrangements which would promote the safety of the child and carers

Under this factor, Judge Glass traversed the history of the parenting arrangements, what his Honour termed as “generalised assertions” by the mother about the father in relation to abuse and controlling behaviour, allegations of physical violence, and other allegations of family violence.

His Honour also included in this part of the judgment discussion about what in this case was a lack of family violence orders.

On my reading, there was nothing novel in the discussion.  It encompassed the matters which his Honour would have discussed pursuant to the old s 60CC(2)(b) and 3(j) and (k).

His Honour was ultimately not satisfied that the father had caused harm to the children, and was therefore not satisfied that a change of residence was necessary to promote their safety.

Section 60CC(2)(b) – Views expressed by the child

In the familiar way, his Honour discussed the children’s views as relayed by the family consultant.

This is unsurprising, as the wording of the new s 60CC(2)(b) is a truncated version of the old s 60CC(3)(a).

Section 60CC(2)(c) – Developmental, psychological, emotional and cultural needs of the child

Here, his Honour’s discussion turned to the family consultant’s opinions about the care provided to the children in their primary residence, and the support the children received at home and school.

His Honour also referred to the family consultant’s evidence about potential emotional distress which would be occasioned on the children by a move from their familiar environment and community to a new life in Queensland.

Section 60CC(2)(d) – capacity of each person who has, or is proposed to have, parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs

Judge Glass’s discussion of this factor is reflective of the discussion one would have expected in relation to the old s 60CC(3)(f).

It has the usual themes of parental capacity and insight, child-focus and support of the children’s relationships with the other parent.

Section 60CC(2)(e) – Benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so

Here, his Honour considered the nature of the children’s relationships with each of the parents and other significant adults, ultimately determining that the children had strong and sound relationships with each parent, which could be sustained despite the geographical distances between them.

Having found earlier that there was no risk to safety, the last seven words of paragraph (e), being “where it is safe to do so” had no work to do in this case.

In the absence of safety concerns, the new s 60CC(2)(d) appears to reflect the old s 60CC(2)(a) and (3)(b), (c) and (d).

Section 60CC(2)(f) – Anything else relevant to the particular circumstances of the child

This new version of the old s 60CC(3)(m) catch-all provision.

His Honour did not discuss any relevant matters.

Conclusion

No doubt, we will see more and more judgments in the coming months, which will show us how various judges in all three Court – Division 1, Division 2, and Family Court of Western Australia, are applying the new provisions.  

In time, we will get further clarification from the Full Court and eventually the High Court.

Based on this first published judgment, though, it looks like we may all be able to relax a little bit about the amendments, as nothing much seems to have changed.  

Forum Disputes in Family Law

13 March 2024 /

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In this episode, I discuss how forum disputes are determined in family law, and how the process can differ depending on the subject matter of the proceedings.

Overview

A forum dispute arises when two different Courts are asked to determine the same subject matter.

In the family law context, this generally means a forum dispute between the Federal Circuit and Family Court of Australia (Division 1 or Division 2), and a Court in another country.

Tests

Most Australian lawyers will be at least vaguely aware that the usual test to be applied to a forum dispute is whether the Australian Court is a clearly inappropriate forum.

We were taught a bit about that concept in law school.  We all have vague memories of authorities like Voth v Manildra Flour Mills.

However, like many other legal concepts, family law does things a bit differently.

Family Law Approach

In 1994, the High Court in ZP v PS, determined that the rule in Voth applied to all matrimonial proceeding except parenting matters.

Since then, the Full Court of the Family Court has repeatedly confirmed the approach to be taken in relation to forum disputes in family law.  

The correct test to be applied depends upon whether the forum dispute involves parenting issues. 

If parenting is in play, then it depends on whether the dispute is solely about parenting, or is about parenting amongst other matters.

In essence, if the forum dispute is solely about parenting, then the clearly inappropriate forum concept does not apply.  

In those cases, it is the usual question of the child’s best interests which will determine whether the parenting dispute is to be decided in Australia or in the other jurisdiction.

If the forum dispute involves issues other than parenting, then the clearly inappropriate forum test applies.

Interestingly, where more than parenting is involved, it is open to the Court to split the forum question, such that the forum dispute about parenting is determined separately on the basis of the child’s best interests, and the forum dispute about the balance of the issues is determined according to the clearly inappropriate forum test.

Best Interests

If the forum dispute is to be determined on the child’s best interests, those interests are assessed by the Court in the usual way.

Clearly Inappropriate Forum Test

If the clearly inappropriate forum test applies, there is guidance to be found in several Full Court decision as to what matters ought to be considered, in addition to the non-exhaustive list of considerations set out in Voth.

The matters to be addressed and considered with respect to each of the competing jurisdictions include:

  • Whether each competing Court has jurisdiction to deal with the dispute.  This is usually a given by the time the FCFCOA is asked to determine a forum dispute
  • Convenience, expense and location of witnesses.  If most of the relevant witnesses are in the foreign jurisdiction, then that would weigh in favour of Australia being a clearly inappropriate forum
  • Each party’s ability to participate in the proceedings (which can include things like language, and whether a person is required to personally attend the relevant Court)
  • Connection to jurisdictions, and issues upon which relief may depend
  • Whether each jurisdiction will recognise the other’s orders and decrees – this is an important factor when parenting is involved but the clearly inappropriate forum test applies, I’ll have more to say about this factor shortly
  •  Which forum may provide for effectively for a complete resolution of the parties’ controversy
  • The order in which competing proceedings were instituted, and costs which have been incurred
  • The governing law of the dispute
  • The place of residence of the parties
  • Availability of each forum, which includes issues like how long parties have to wait for a final hearing in each jurisdiction
  • Any legitimate juridical advantage to litigation in either jurisdiction

Recognition of orders by of other jurisdiction

The Full Court in the 2017 decision of Kent held on this point that:

If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue.

If the matter involves parenting issues, this can be determinative of the forum dispute, so it is essential to research whether an order of the competing foreign jurisdiction will be recognised in Australia.  

We need to look s 70G of the FLA provides for the registration of “overseas child orders”.

The term “overseas child order” is defined in s 4(1) of the Act.  It means “an order made by a court of a prescribed overseas jurisdiction that…”

So what does that mean? We turn to the Family Law Regulations 1984, at regulation 14.

Sub-regulation (a) points us to Schedule 1A, and says that each country, or part of a country, set out in column 2 of that schedule is a prescribed overseas jurisdiction.

If the country, or part of the country, in which the competing court sits is not there, then the overseas child order will not be recognised in Australia.

For financial matters, the question is less clear. There is no equivalent provision to section 70G in relation to overseas property Orders.

There is, however, authority in relation to enforcement of overseas property orders.  A recent example is the 2022 decision of the FCFCOA (Div 1) sitting the Apellate Jurisdiction in the case of Yadu and Orjit, where the Full Court held that the enforcement of an overseas property order fell within a matrimonial cause for the purposes of section 114(3).

In that case, the foreign Court had made orders about property in Australia.

In my experience, it can be necessary for parties to obtain Orders in both jurisdictions.  

For example, a few years ago I was involved in a matter where the parties had property in Australia and mainland China. The parties had never lived in Australia prior to separation.

After separation, the husband had removed something like three quarters of a million dollars in matrimonial funds from China to buy real property in Australia with his new partner.

A Court in China made Orders about property owned by the parties there, but declined to make Orders about Australian property. Subsequently, my client, the wife, who had never lived in Australia, applied for property adjustment order here.

My client adduced expert evidence from her Chinese lawyer as to the inability of the Chinese Court to deal with Australian property.

The Court in Australia determined that it was appropriate for it to deal with the adjustment of the Australian property. 

These are issues which, in my view, need to be investigated and assessed in each case and in relation to each jurisdiction.

In my view, the question of the recognition by each competing jurisdiction of the other’s decrees is not likely to be determinative in property-only proceedings.  

Family Law Amendment Bill 2023 – Initial Thoughts on proposed amendments to sections 60CC, 61DA and 65DAA

30 January 2023 /

The Federal Government has published an Exposure Draft of the Family Law Amendment Bill 2023 (“Bill”).  

If enacted, the Bill would, amongst other things, significantly amend section 60CC of the Family Law Act 1975 (“Act”) (which section sets out the factors which the Court is required to consider when determining the best interests of a child).

The Bill would also repeal s 61DA (the presumption that it is in a child’s best interests for both of their parents to have equal shared parental responsibility), and section 65DAA (the requirement to consider making an order for equal time or substantial and significant time when the Court makes an order for equal shared parental responsibility).

Whilst I have not had time to fully consider those aspects of the Bill, I have spent a bit of time reading them and comparing them to what they would amend.

I have not yet taken the time to read the other parts of the Bill.

Section 60CC Amendments

Section 60CC sets out the factors which a Court must consider when determining the best interests of a child.

What does it say now?

In its current form, section 60CC is unwieldy.  

It contains two “primary considerations” and 14 “additional considerations” (including a catch-all factor which allows the Court to take into consideration whatever it considers appropriate), many of which overlap, many of which are not applicable to many families, but all of which the Court must consider when determining what Orders are in a child’s best interests.

One of the factors applies only if the child is an Aboriginal or Torres Strait Islander child: the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, and the impact of any proposed parenting order on that right.   It is the 9th factor in the list of the 14 “additional considerations”.

Due to the overlap between many of them, I routinely group the section 60CC factors when making submissions in Court as follows:

  • the child’s relationships (4 overlapping factors);[1]
  • the risk of harm (3 overlapping factors);[2]
  • the child’s views;[3]
  • parental capacity, responsibility and involvement (4 overlapping factors);[4] and
  • orders least likely to lead to further proceedings.[5]

I note that the above list does not include the factor which applies only if the child is an Aboriginal or Torres Strait Islander child.  For whatever reasons, I have worked on very few matters where this factor was relevant, so it is not something I deal with routinely.

I have worked exclusively in family law for over 11 years (about half that time as a solicitor, and the other half as a barrister).  I find it better and easier to simplify the many factors into 5 essential categories (and, if I recall correctly, I lifted those categories from a judgment many years ago, so I am not the only one who does this).

I can only imagine how difficult it must be for self-represented litigants to understand, and engage with, s 60CC in its current form.

What would the Bill change?

The Bill would dramatically simplify s 60CC, with only 6 factors applying to all children.  

The existing factor which applies only if the child is an Aboriginal or Torres Strait Islander child remains in place, but is set out separately from the other factors, which will make it easier to find (and its existence more obvious) for cases where it’s relevant, and which will make it easier to skip where it doesn’t apply.

The generally applicable factors are:

  • what arrangements would best promote the safety of the child and each carer of the child;
  • the child’s views;
  • the developmental, psychological and emotional needs of the child;
  • the capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, with particular regard to the willingness of the carer to seek assistance and support in relation to those matters;
  • the benefit to the child of maintaining relationships with both parents, and other people significant to the child where it is safe to do so; and
  • a catch-all.

Almost all of the existing factors are essentially covered (with the notable exception of a requirement in the Bill to expressly consider making orders least likely to lead to further proceedings), but the proposed wording is far simpler and more accessible.

There appears to be an increased focus on safety, but, in my opinion, the change is marginal.  The existing section already requires the Court, when weighing the two “primary considerations”, to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with each parent.  Same concept, different language.

My gut reaction

In essence, the approach to determining best interests would remain much the same, but the section would become much easier and simpler to understand and apply.

Given the horrific rate of family violence in Australia, any increase in focus on the safety of children and the adults in their lives (however small it may be) can only be a good thing.

On balance, these amendments seem pretty good to me.

Section 61DA Repealed

The Bill would repeal s 61DA.

What is s 61DA?

Section 61DA provides that, when making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the parents of the child to have equal shared parental responsibility (“ESPR”).

The presumption does not apply when there are reasonable grounds to believe that a parent, or another person who lives with that parent, has committed child abuse or family violence.

The presumption can, in any case, be rebutted by evidence which satisfies the Court that it would not be in the child’s best interests for the parents to have ESPR.

Parental Responsibility and Confusion

We have a bit of jargon in Australian family law.  It seems to confuse a lot of people.  

The Act uses terms like “live with”, “spend time with” and “parental responsibility”.  In the general parlance, people in Australia are more likely, in my experience, to talk about “custody” and “access”, terms which are outmoded in Australian family law.

In my experience, with both clients and self-represented litigants, the meaning of parental responsibility is not immediately obvious to most non-lawyers.  Clients are often surprised to learn that parental responsibility relates to making decisions about children, but has nothing directly to do with where a child lives or with whom a child spends time (or when, or how often, or how long for).

However, a lot of lay-people seem to have heard or read about the presumption.  They may have googled family law, and read something about it in a Facebook group or forum, or perhaps even stumbled across s 61DA on AustLII and read it without context or an understanding of what the terms meant.

A great many people seem to be under the false impression that this presumption they’ve heard about means that, by default, the Court will order that a child will have equal time with each of their parents.

What’s the effect of repealing it?

To my mind, repealing s 61DA will have little effect on the majority of families.

The existence of the presumption means that there is a default position, and the evidentiary onus falls on the person who wants to deviate from the default.

The absence of the presumption just means that there is no default position.   It doesn’t mean that there is a different default position.  It doesn’t mean that, say, mothers will have sole parental responsibility by default.

It just means that the Court starts with a clean slate, assesses the evidence, and makes a finding as to what allocation of parental responsibility (whether between parents or other adults) is in the child’s best interests.

That is precisely what the Court does now anyway if there is anyone agitating to deviate from equal shared parental responsibility.

I expect that, in the vast majority of families going through separation, both parents will want ESPR, and the Court will continue to order it.

All that changes is that, when there is a dispute about allocation of parental responsibility, there isn’t a party (whether parent or otherwise) who bears a greater evidentiary onus than another party.

In other words, repealing s 61DA would just mean that, when there is a dispute about parental responsibility, each party will be required to adduce evidence in support of their position (which, in practice, happens in most cases already).

My gut reaction

This change will likely affect only a minority of cases before the Court.  In those cases, the outcome may be no different, as the presumption might be rebutted anyway.

The small shift in onus might just ever-so-slightly tip the scales of some power imbalances.  For example, a victim survivor of coercive control may have a slightly less difficult time in escaping further exercise of control by the other party by way of decision-making about a child.

The biggest benefit, to my mind, of repealing s 61DA would be an absence of a widely-held misconception that there is a presumption of equal time.

On balance, I think repealing s 61DA is not a bad idea.

Section 65DAA Repealed

The Bill would repeal s 65DAA.

What is s 65DAA?

Section 65DAA makes it mandatory for the Court to consider certain time arrangements for a child if the Court orders ESPR. 

In particular, where ESPR is ordered, the Court must consider whether an order for equal time is both in the child’s best interests and reasonably practicable.

If, after considering that option, the Court decides not to order equal time, it must then consider whether an order for the child to spend “substantial and significant time” with each parent is both in the child’s best interests and reasonably practicable.

It must consider those options even if no party to the proceeding seeks orders for equal time.

All of this is within the existing framework of the Court being required to make parenting Orders which are in the child’s best interests, and s 60CC setting out the factors to be taken into account in determining those best interests.

In other words, s 65DAA says to the Court something like “you must make Orders in the child’s best interests, and s 60CC tells you what to look at, but in exercising your discretion, you must at least think about these particular options, even if nobody is asking for them”.

My gut reaction

I’ve always found s 65DAA a bit weird.

If a party seeks an equal time arrangement, the Court will necessarily consider it.  If nobody seeks equal time, why should the Court spend time and resources considering such an arrangement?

The Court is required to make Orders in the child’s best interests.  

I’m pretty sure that if, after assessing evidence and hearing submissions about an equal-time arrangement, the Court finds that an equal time arrangement is in the child’s best interests, and that it is reasonably practicable, it will order it, whether or not some section of the Act specifically tells the Court to think about that option.

Conversely, if the Court finds that it’s not in the child’s best interests, or that it is not practicable, it won’t order it.  No amount of mandated consideration is going to change that.

The same goes for “substantial and significant time”.

I’m in favour of s 65DAA being repealed.

[1] s 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

s 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).

s 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

s 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

[2] s 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

s 60CC(3)(j): Any family violence involving the child or a member of the child’s family.

s 60CC(3)(k):  If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order.

[3] s 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

[4] s 60CC(3)(c): Extent to which each parent has taken, or failed to take, opportunities to participate in decision-making about, spend time with, and communicate with the child.

s 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

s 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

s 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

[5] s 60CC(3)(l).

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