Eide & Yoxall (No 6) [2025] FedCFamC1F 973 (9 December 2025)

1. The Mother be and is hereby permitted to take X (born in 2018) out of the Commonwealth of Australia to AP Region, Country AQ from Wednesday 10 December 2025 until Saturday 20 December 2025 inclusive and this is an order made pursuant to Section 65(Y)(c)(ii) of the Family Court of Australia.
2. The Mother's Application in a Proceeding filed on 5 December 2025 be dismissed.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Eide & Yoxall

has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These proceedings come before the Court today upon an Application in a Proceeding filed on behalf of the applicant, Ms Eide, on 5 December 2025. That application seeks an order pursuant to s 65Y of the Family Law Act 1975 (Cth) ("the Act"), that the applicant mother be permitted to remove the parties' child, X, who was born in 2018, and is aged seven years, from the Commonwealth of Australia to AP Region, Country AQ, for the purposes of an overseas holiday, it being proposed that she travel with the applicant mother and the maternal grandfather for the period between 10 December 2025 and 20 December 2025.
2. In support of her application, the applicant mother relies upon the following material:-
   • Affidavit of the mother filed 5 December 2025; and
   • Affidavit of the mother filed 7 December 2025.
3. The application to travel is opposed by the respondent father. It was submitted on behalf of the father that the only basis upon which he would agree to such travel would be on condition of the mother producing a hair follicle test within 28 days. There is no material filed on behalf of the father in support of that application.
4. The background to this issue is as follows. These proceedings have a very long history before the Court. The parties are in dispute in relation to financial matters. Underpinning that has been a long-running dispute as to whether or not they have lived in a de facto relationship within the meaning of the Act. That threshold issue alone occupied the parties in litigation for a period in excess of three years before judgment was delivered by Williams J on 16 May 2024.
5. Running concurrently with the financial matters are competing parenting applications, albeit at this time there is no dispute that the parties' child, X, live with the mother and spend time with the father pursuant to interim orders. Those interim orders provide for the father to spend regular time with X, and also provide for him to communicate with her regularly via electronic means.
6. The parties have previously entered into consent orders relating to travel for the mother and X. On 20 November 2024, orders were made by consent, which included an order at paragraph 4 of those orders as follows:

Pursuant to s 65Y of the Family Law Act 1975, the Applicant may remove [X] from the Commonwealth of Australia for the purpose of holiday travel to [AP Region] over the Christmas 2024/2025 school holidays.

1. A further order was made that the respondent sign a passport application for X. Whilst the passport application was completed, and a passport has issued for X, I am informed that in fact the anticipated travel to AP Region did not occur over the school holiday period of 2024/2025.
2. The mother deposes in her affidavit material that she did not appreciate that the orders made in November 2024 permitting her to travel to AP Region with X had expired. She has made arrangements to travel to AP Region, Country AQ with X and her father, Mr W, under the assumption that such orders were still operational. That travel is booked to commence on 10 December 2025 and return flights have been booked ensuring a return to Melbourne on 20 December 2025.
3. The mother deposes that her father, the maternal grandfather, has travelled to Australia from Country Q to spend time with the mother and X. He is described as "getting on in years", and the mother considers that it is important for X to have the opportunity of an overseas holiday with the maternal grandfather.
4. The mother has annexed to her second affidavit the itinerary issued by the airline with which she has booked. That itinerary confirms booked return airfares from Melbourne to City AR in AP Region, with a scheduled return on Saturday, 20 December 2025. Further, annexed to her affidavit of 7 December 2025 is a certificate of insurance confirming that the mother, the maternal grandfather, and most importantly the child, have appropriate travel insurance for their proposed trip. Also annexed to that affidavit is a visa for X permitting her entry into Country AQ for the purposes of the proposed holiday.
5. The mother offers to the Court an undertaking that she will return X to the Commonwealth of Australia in accordance with her proposed travel plans. That undertaking confirms that she will do all acts and things necessary to cause her solicitor to notify the respondent's solicitor and will use her best endeavours to return X to the Commonwealth of Australia, even if there are circumstances beyond her control that mean she is not able to return on the scheduled return date as per the itinerary issued by the airline.
6. That is the undertaking that was sought by the father as part of the conditions provided or required by him in the letter from his lawyers to the mother's lawyer, dated 8 December 2025, being Exhibit A-1.
7. There are no other concerns raised on behalf of the father, other than it being noted that Country AQ is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction ('the Hague Convention'). That is acknowledged.
8. It was conceded on behalf of the father that the mother is not considered to be a flight risk. Submission was made that her residential lease is to expire in January 2026. That was acknowledged by the mother's counsel. No issue was further pressed in relation to the mother posing a flight risk. The mother was born in Country Q, and is a Country Q citizen, albeit that she has lived in Australia now for a considerable period of time. Her life is embedded in Melbourne, where she lives and raises the parties' daughter, who is enrolled at a school in Melbourne.
9. Having regard to the history of the matter, the previous consent given by the father to the proposed travel, and the fact that no issues are raised as to concerns of the mother posing a flight risk, in circumstances where she is the primary resident parent of the child, I do not consider that there should be any barrier to the mother's travel to AP Region with X for the purpose of the proposed holiday. There are no safety concerns identified that would enliven issues pursuant to section 60CC of the Act.
10. Indeed, having regard to orders previously made by consent that such travel is appropriate, I am satisfied that the proposed travel arrangements and travel as anticipated are in X's best interests. That view is bolstered in light of orders made by consent as between the parties on 18 March 2025, which specifically contemplate X having the opportunity of overseas travel with her parents. Those orders required the parties to provide 21 days' notice of intention to travel. Plainly, that has not occurred in this instance. It should have. The mother acknowledges that oversight.
11. Having had the experience of being required to bring an application to Court to enable travel on this occasion, it is to be hoped that she will henceforth be more diligent in adhering to the obligations placed upon her pursuant to those orders.
12. What remains to be determined is whether an additional order ought be made for the mother to submit to hair follicle testing as sought by the father.
13. It was submitted on behalf of the mother that, firstly, the father adduces no evidence to support the making of such order. I accept that submission. There is no evidence before the Court that would justify the making of that order.
14. It was further submitted on behalf of the mother that the question of X's residence with the mother is not an issue. Again, that is acknowledged on behalf of the father, and I have close regard to that in the circumstances of this case. The reality is that the mother's role as primary parent is not subject to challenge. It is difficult to understand why such testing would be necessary or appropriate given that circumstance.
15. It was conceded on behalf of the mother that during the trial before Williams J, in the context of the threshold hearing, the mother was cross-examined as to her drug use. I am informed that, during the course of that cross-examination, the mother admitted that during the parties' relationship, she did use illicit substances. It is her case that that is no longer a feature of her life. It was submitted on behalf of the mother that the application made by the father late in the day without evidence to support it is a form of harassment, and that there is simply no reason for such order to be made. I accept that submission.
16. The submission made on behalf of the father is that, in circumstances where these proceedings have been on foot for some four years, and there have been some eight previous requests made on behalf of the father for the mother to submit to such testing, her agreement to do so would put the issue to rest. I do not consider that type of submission or argument to be basis for the type of intrusive order that is sought, and I do not consider that it would be an appropriate use of the Court's power to accede to that application. Accordingly, that application will be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Johns.