In a recent case, the Full Court of the Family Court (the Appeal Court) considered a case where a Family Court Judge had ordered that neither party remove the children from Australia without the written consent of the other party or an Order of the Court, and that the children’s names be placed on the Watch List. The Watch List prevents children from leaving Australia and operates in all international airports and overseas shipping terminals.
The mother appealed, as she wished to take the children to visit family members in Europe.
The Full Court decided that the Trial Judge had not given adequate reasons which would allow the parties to understand why he had decided that the risk of the mother not returning the children to Australia was too great. The Full Court said that the degree of risk that the departing parent would choose not to return to Australia, the existence or otherwise of the departing parent’s continuing ties with Australia and the strength of the departing parent’s possible motives not to return to Australia were factors the trial judge should have considered.
Further, the Court must consider whether the country to which the departing parent is taking the children has signed The Hague Child Abduction Convention, which allows children to be recovered from those countries.
The financial circumstances of both parties need to be considered – for example, whether the departing parent would suffer financial hardship by the Court requiring that they provide a security bond to pay for the return of the children, as compared with the hardship that the non-departing parent would suffer if the security was fixed at a lower level and that parent was required to find additional funds to return the children to Australia.
In the end, the Full Court allowed the mother to take the children overseas.