McDevitt & Duchamps (No 2) [2024] FedCFamC1F 868 (5 December 2024)

What happened

Mr McDevitt (the father) applied on 4 November 2024 for interim relief to suspend an existing airport watch list so he could travel to the United Kingdom with his daughter X (born 2019) in late 2024/early 2025 ([2]). The mother, Ms Duchamps, and the Independent Children’s Lawyer opposed the application, arguing the trip posed a potential risk of harm to X and that the father had not adequately provided relevant information about the proposed travel or addressed material adverse to him ([3], [8]). A family report dated 21 August 2024 was before the Court and raised significant issues about potential risk to X ([6]).

Crucially, the father’s position was complicated by separate proceedings in the Family Division of the High Court of Justice between the father and the mother of his older son D (born 2013). Orders from those proceedings dated 8 September 2023 were produced to the parties around 12 November 2024 and revealed that contact between the father and D was ordered to be supervised, that a route map and ground rules were annexed to protect the child, and that the mother could stop contact if the father failed to comply with the rules ([11]–[14], [16]–[21]). The Court noted both that these foreign orders were informative and that relevant pieces of the evidentiary 'jigsaw', notably a fact-finding judgment and welfare report, appeared to be missing from what had been disclosed ([13], [18]).

At the hearing before Altobelli J on 5 December 2024, the Court concluded the father’s affidavit evidence and disclosed material were incomplete; the missing and untested material left unresolved questions about the risk the father may pose to X and about what contact had actually occurred under the foreign orders ([21]–[22]). Applying s 60CC, which requires orders to be safe for the child, the Court was not satisfied it could make the proposed travel order. The father’s interim application was dismissed, the matter was adjourned to a five-day final hearing beginning 13 January 2025, and the Court made a conditional variation: if the father elected to travel before the final hearing, X would spend time with the mother for the duration of the father's absence ([1]–[3]; formal orders).

Why the court decided this way

The decision rests on the application of the child's best interests and safety obligations under s 60CC of the Family Law Act 1975. Altobelli J framed the central question as whether permitting the travel would be safe for X, having regard to the material before the Court ([22]). Two principal factors led to refusal:

1. Incomplete and untested evidence relevant to risk. The family report (21 August 2024) raised significant concerns, and the foreign Family Division orders disclosed supervised contact and a route map that expressly intended to protect the mother from pressure to progress prematurely to unsupervised contact ([6], [12]). The father did not provide fulsome evidence explaining what contact had occurred under those orders, the nature of supervision, or the reasons for supervised contact; nor were all documents (notably a fact-finding judgment and welfare report) produced to the Court ([13], [18]).

2. Proximity of the proposed trip to the final hearing and the availability of a full, contested process. The final hearing was listed for five days in January 2025; Altobelli J emphasised that contested issues, including cross-examination, could be agitated and tested at that hearing and that the necessity for the trip so close to the final hearing was not clearly established ([23]). Given the unresolved factual matrix and the availability of a full hearing to test allegations and evidence, the Court adopted a cautious approach.

The combination of these factors meant the Court could not be satisfied that allowing the travel met the safety requirement in s 60CC, so the interim application was dismissed ([22]).

Before and after state of the law

Before this decision: it is well established that interim orders concerning overseas travel must be assessed against the child's best interests under s 60CC, and that risk of harm (including family violence or coercive and controlling behaviour under s 4AB) must be considered where raised.

After this decision: McDevitt & Duchamps (No 2) reinforces a practical application of those principles in the interim travel context: where there are allegations raising risk and key evidence is incomplete (including foreign orders, fact-finding judgments or welfare reports), a court will decline to grant travel permission if it cannot be satisfied the child would be safe. The judgment emphasises the court's readiness to defer contested, evidentiary issues to an imminent final hearing where the evidence can be tested ([22]–[23]).

This decision does not create new statutory law, but illustrates judicial caution where missing material prevents an assessment of safety. It signals to practitioners the importance of full, timely disclosure and detailed affidavits addressing foreign orders and the practicalities and safeguards of proposed travel.

Key passages with plain-English translation

• "This is not a run-of-the-mill international travel application." ([5])

  • Translation: The matter involves serious allegations and complexities (family violence, supervised contact in other proceedings), so it is not an ordinary travel request; the Court must treat it with extra care.

• "Section 60CC of the Act requires me to make orders that are safe for X. I am not satisfied that if I made the order proposed by the father, that I would be making an order that is safe for her, given what I have described as the missing pieces of this jigsaw puzzle..." ([22])

  • Translation: The statutory duty to protect the child is decisive; because essential evidence is missing or inconsistent, the judge cannot be sure of the child's safety and must refuse the interim travel order.

• Quoting the foreign order: "The purpose of the route map is to ensure that the mother is protected from being placed under pressure to allow the premature progress to unsupervised contact..." ([12])

  • Translation: The foreign Family Division imposed safeguards because there was a concern the father could pressure the mother into premature unsupervised contact; this is relevant to assessing risk to the father's other children and informs the present safety assessment.

• "The necessity for this visit, so proximate to the final hearing, is not abundantly clear to me." ([23])

  • Translation: The judge is unconvinced that the trip must occur before the final hearing; given the upcoming full hearing, the Court prefers to wait and let evidence be tested properly.

What fact patterns trigger this precedent

This decision will be most directly relevant where:

• An applicant seeks interim permission for international travel with a child shortly before a scheduled final hearing, and the trip's timing overlaps with contested issues that could be resolved at the hearing ([23]).
• There exist serious allegations of family violence, coercive or controlling behaviour, or other risk factors raised by one parent or a family report relevant to the child's safety ([5], [6]).
• There are parallel or related foreign proceedings that impose supervised contact or route maps for the applicant with other children, and material from those proceedings (fact-finding judgments, welfare reports) is either missing or unexplained ([11]–[21]).
• The applicant’s affidavit evidence is incomplete, inconsistent with disclosed orders, or fails to explain safeguards proposed for the child during travel ([21]–[22]).

In these fact patterns, McDevitt & Duchamps (No 2) signals that courts should be cautious and may refuse interim travel where safety cannot be established.

How later courts have treated it

As of the date of the judgment, the decision is recent. The judgment itself records its interim nature and adjoins a final hearing for fuller testing of evidence ([1]–[3], [23]–[24]). Practitioners should watch for the outcome of the final hearing before drawing broader doctrinal conclusions. If later courts cite this decision, they are likely to rely on its practical emphasis on full disclosure and safety under s 60CC when assessing interim travel. In the absence of reported follow-up or appellate treatment in the materials provided, there is no authoritative line of subsequent judicial treatment to report here.

Still-open questions

1. Outcome at the final hearing. The ultimate determination of whether travel will be permitted, or long-term parenting arrangements adjusted, depends on what emerges at the final hearing listed for January 2025; the present decision is interlocutory and defensive in nature ([1], [23]).

2. Effect of missing foreign fact-finding judgment and welfare report. Altobelli J noted these were absent and that their absence hindered a full view of why supervised contact was imposed in the Family Division ([13], [18]). Whether production of those documents (and satisfactory explanation by the father) would have led to a different interim outcome remains open.

3. How courts will balance competing rights where an applicant has reasonable, non-risky reasons to travel but concurrent unresolved allegations exist. This decision shows a precautionary tilt, but it remains to be seen how strictly courts will apply this approach where the evidentiary gap is narrower or where robust undertakings and supervision arrangements are proposed.

4. Interaction between foreign orders and Australian proceedings. The judgment treated the foreign orders as informative but incomplete. How Australian courts will assess and weigh foreign fact-findings and orders in future cases, particularly where full transcript or welfare material is not available, is an unresolved practical issue raised by this case ([11]–[18]).

5. Use of conditional variations. The Court used a pragmatic, conditional variation to protect the child's time with the mother if the father nonetheless travelled before final hearing (formal order 3). The precise contours and enforceability of such conditional arrangements may be tested in future disputes.

Conclusion: McDevitt & Duchamps (No 2) is a cautionary interlocutory decision emphasising that interim permission for international travel involving a child will be refused when s 60CC safety cannot be established due to incomplete or inconsistent evidence, particularly where foreign orders raise concerns and a final hearing is imminent. Practitioners should ensure comprehensive, timely disclosure and address foreign orders and welfare materials fully when applying for interim overseas travel.