By Antony Kahn, Consultant & Daniel Johnson, Law Clerk
The appellant wife successfully appealed the order made by the primary judge that she own and occupy property in Australia as a condition precedent to international travel with the child who was the subject of the proceeding. Christie J, sitting as the appeal court, held that the primary judge did not have the power to make the order in circumstances where was no logical connection between the order and the care, welfare or development of the child.
Legal principles
A parenting order is an order made by a court about parenting arrangements for a child. A court can make a parenting order based on an agreement between the parties (consent orders) or after a court hearing or trial.
Section 64B(2) of the Family Law Act 1975 (Act) sets out the matters a parenting order can deal with. Parenting orders routinely deal with one or more of the following matters contained in section 64B(2):
- the person or persons with whom the child is to live;
- the time the child is to spend with another person or persons;
- the allocation of parental responsibility for the children; and
- the communication a child is to have with another person or persons.
Additionally, and relevantly for the purpose of this case, section 64B(2)(i) gives the court power to make a parenting order dealing with “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”
For a parenting order to be valid, it must deal with one or more of the matters set out in section 64B(2) of the Act.
Background
The proceedings before the primary judge related to the circumstances in which the parties’ six year old child ought to be permitted to travel internationally with either of the parties.
There were already parenting orders in place for the child, which included an injunction restraining either party from travelling overseas with the child for a period of two years. That injunction had expired. The father sought for the injunction to be extended, whereas the mother contended that no further injunction was necessary or appropriate.
Primary judge’s decision
The father’s contention at trial was that the mother’s behaviour demonstrated she intended to leave Australia, and there was a risk of the child being permanently removed from Australia.
The primary judge was satisfied that the mother’s conduct (which included selling her motor vehicle and property in Australia, travelling interstate with the child without notifying the father and in contravention of the existing parenting orders, and expressing to the father a desire to live overseas) established there was a risk she would permanently remove the child from Australia.
Following a contested hearing, the primary judge made orders preventing international travel with the child for five years, and thereafter imposing a number of conditions on the mother as prerequisites to travel with the child, including requiring the mother to be the registered proprietor of real estate in Australia which she occupied as her primary place of residence.
The requirement for the mother to own and reside in a property in Australia was suggested by the primary judge as demonstrating the mother’s “ongoing ties with Australia”, thereby reducing the risk of the child being permanently removed from Australia by the mother.
Appeal judgment
The mother appealed the primary judge’s decision on various grounds including that the order requiring her to own and reside in a property in Australia was ultra vires, meaning that the judge did not have the power to make such an order.
The mother argued there was insufficient connection between her owning and living in a property in Australia and the “care, welfare or development” of the child and, accordingly, that the order made by the primary judge fell outside the scope of section 64B(2) of the Act.
While Christie J accepted that a judge may impose conditions on a child’s overseas travel in the course of parenting proceedings in order to reduce the risk of permanent removal from Australia, such an order must deal with an aspect of the care, welfare or development of the child.
At [26], Christie J held that “there is no obvious, direct and logical connection” between the order challenged by the wife and the care, welfare or development of the child. Her Honour advanced a number of reasons in support of this finding, including at [27] that property ownership (without the need for occupation) was sufficient to demonstrate ongoing ties to Australia; that the order lacked specificity in terms of what would constitute ownership; and that the order imposed a “significant directive to the mother about the manner in which she deals with real estate with unknown and unknowable market forces and consequences”.
Her Honour dispensed with the matter by setting aside the order in question, but leaving the remaining parenting orders made by the primary judge in place.
Practical insights
This case is a salient reminder to practitioners and the judiciary alike to ensure there is a sound jurisdictional basis for any order being sought or proposed to be made in a parenting (or indeed any) proceeding.
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