The Full Court found that the primary judge had erred in preventing overseas travel without considering the matter of Line v Line (1997) FLC 92-729 (“Line v Line”). The primary judge ruled that neither party be allowed to travel outside Australia without either obtaining the written consent of the other or an Order of the Court. In addition, an order was made that the children’s names be placed on the Family Law Watchlist.
Ms DeLuca appealed on five of the 36 orders made by the primary judge. The Full Court ruled the Appeal on four of these orders should succeed. The salient ground of appeal, Ground 1, concerned overseas travel.
The Full Court summarised Ground 1 by the appellant, Ms DeLuca (at [22]):
22. The appellant asserts that the primary judge erred by:
a. Concluding that s 60CC(3)(g) of the [Family Law Act 1975 (Cth)] had no relevance and failing to place any weight on the children’s European culture and heritage (Ground 1.1);
b. Failing to give adequate weight to the children’s interests in having the opportunity to visit their maternal family in Europe (Ground 1.2);
c. Finding that the risk of flight on the appellant’s part was too great to permit her to take the children to Europe or anywhere else overseas before the elder child reached 18 years of age where there was no evidence that the appellant was a flight risk (Ground 1.3); and
d. Finding that “each parent has significant connection with overseas countries” when it was the respondent’s evidence that his family/culture/community was in Queensland (Ground 1.4).
On Grounds 1.1 and 1.4, the Full Court found there was no merit. On Ground 1.2, it was found that the appealable error had not been demonstrated.
In respect of Ground 1.3, the precedent for this was Line v Line. The risk associated with allowing the children to travel overseas was that they would not return. Ms DeLuca wished to take her two children to Europe where she had family relatives. The Full Court determined that there were a number of factors connected with assessing this risk based on Line v Line (from [34]):
- The existence of continuing ties between the departing parent and Australia;
- Whether there was motivation not to return;
- The existence and strength of possible motive to remain in the other nominated country;
- Whether the country intended for travel with the children is, or is not, a signatory to the Convention on the Civil Aspects of International Child Abduction;
- Even if the designated country is a signatory, the possibility of the departing parent deviating from the designated destination to another destination in a non-convention country; and,
- The financial circumstances of both parties and the hardship a departing parent may suffer by the imposition of security at a particular level.
The primary judge had an obligation to provide adequate reasons for his decision to impose a flight risk and he neglected to assess or explain a number of considerations, such as mentioned above, associated with making this decision. He also did not draw on the authority of Line v Line in the course of decision making.
Thus, the Full Court ruled that Ground 1.3 did have merit and granted an appeal on a conditional basis. The Full Court amended the orders such that the children are permitted to travel outside of Australia:
- For the purpose of a holiday for one period of up to 5 weeks not more than once in any two-year period; or
- For the purpose of an emergency involving a family member, for a period of up to 3 weeks.
However, the children’s names were to remain on the Family Law Watchlist while they resided in Australia and only be removed for the duration of any period of travel outside of Australia authorised by Court order.
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