Montilla & Saldano (No 2) [2025] FedCFamC2F 601 (28 April 2025)

(a) On Monday and Thursday of each week at the end of which the father does not have contact with the child, with the father to initiate the call; and

(b) On Monday or Tuesday during the week at the end of which the father does have contact with the child. with the father to initiate the call.

1. The parents shall keep each other advised of a contact number and email address.
2. The mother shall keep the father advised of the school X attends.
3. Each parent will contact the other as soon as practicable upon X becoming, seriously ill, hospitalised, being involved in any accident requiring medical treatment, or being present at any event to which Police or other emergency services are called.
4. The father is authorised (and a copy of these orders shall be sufficient authority):

(c) To receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which X may attend from time to time;

(d) To receive such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time;

(a) Denigrating the other or any member of their family in front of or in the presence of the children, or permitting any other person to do so;

(b) Discussing these proceedings with X, showing X any document associated with these proceedings or passing any information concerning supervision or time arrangements via X, or permitting any other person to do so.

1. The mother is permitted to obtain and hold an Australian passport for X without the consent of the father.
2. The child's name shall be removed from the Airport Watch List.
3. The mother and X are permitted to travel internationally for the purposes of holidays without the consent of the father.
4. For the purposes of order 12 above, not less than 14 days prior to travel the mother will:

(a) Provide the father with copies of paid return tickets for X specifying the dates of departure and return, the destination and a list of any countries proposed to be visited while outside of Australia.

(b) Provide the father with proof of travel insurance for the child covering all destinations of proposed travel for the time period the child is proposed to be outside of Australia.

1. The Court makes no order for costs in relation to the Independent Children's Lawyer.

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

1. These are parenting proceedings that were commenced on 26 August 2020 by the applicant father ("the father") against the respondent mother ("the mother") in relation to the child, X ("the child"), born in 2017. The proceedings were fixed for a final parenting hearing today. An application for an adjournment was made by the father; it was declined by the Court. After giving the parties an opportunity to have discussions, given the circulated proposed minute by the Independent Children's Lawyer ("ICL"), a revised proposed minute was provided to the Court and by consent, the Court made final substantive parenting orders, 1 to 10 and number 15 in those proposed orders by the ICL.
2. The only issue remaining in dispute between the parties was identified as the overseas travel of the child, who is now seven and turns eight this year. The Court identified that the father's filed affidavits were being treated as being in evidence. The Court also treated as being in evidence the affidavit filed by the mother on 20 March 2024. The Court had the updated report and first report by Mr E marked as exhibits A and B. The Court confirmed that there was no other evidence sought to be relied upon by the parties other than an email that had been provided by the father dated 28 April 2025, which the Court has treated as being a submission before the Court in respect of the issue in respect of overseas travel. Mr E's most recent report did not express any relevant opinion in respect to the determination of that overseas travel issue.
3. The Court has had regard to the principles in section 60B of the Family Law Act 1975 (Cth) ("the Act") which are as follows:

Objects of Part

The objects of this Part are:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

1. In determining this issue, the Court must determine the child's best interests in accordance with section 60CA of the Act, which is as follows:

Child's best interests' paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1. The court has also taken into account the principles under section 60CC of the Act which are as follows:

How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).

General considerations

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture

(3) For the purposes of paragraph (1)(b), the court must consider the following matters:

(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(iii) to develop a positive appreciation of that culture; and

(b) the likely impact any proposed parenting order under this Part will have on that right.

Consent orders

(4) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

1. The Court has also taken into account the application of these principles as identified in Kapoor & Kapoor [2024] FedCFamC2F 605.
2. The father's concern in relation to the disputed proposed orders were essentially the consequences that would follow if the mother failed to comply with orders 11 to 14 which relevantly are as follows:

11. The mother is permitted to obtain and hold an Australian passport for [X] without the consent of the father.

12. The child's name shall be removed from the Airport Watch List.

13. The mother and [X] are permitted to travel internationally for the purposes of holidays without the consent of the father.

14. For the purposes of order 12 above, not less than 14 days prior to travel the mother will:

a. Provide the father with copies of paid return tickets for [X] specifying the dates of departure and return, the destination and a list of any countries proposed to be visited while outside of Australia.

b. Provide the father with proof of travel insurance for the child covering all destinations of proposed travel for the time period the child is proposed to be outside of Australia.

1. Those orders identify that the only purpose of overseas travel by the mother is for holidays. The orders do not permit the mother to relocate overseas. The orders provide a regime for notification of the travel of no less than 14 days prior to the travel and providing both return paid air tickets and insurance in respect of air travel and itinerary. The father, in his six points contained in his email dated 28 April 2025, identified the history of the proceedings as fuelling his concern in respect of the potential for the mother to not comply with the orders and not to return to Australia.
2. Notwithstanding that Country F is a Hague Convention country, the father identified potential difficulties and obstacles in retrieving the child if there was a failure to comply with the Court's orders 11 to 14 under the topic of foreign enforcement risks. The concern expressed by the father in that regard, was one in respect of which the ICL properly drew the Court's attention to the existence of a qualification, apparently by the Attorney General in Country F, in respect of enforcement where there was grave risk to the child. The father submitted that the mother was not a citizen of Australia, albeit, she has a residency permit. The father made reference to concerns that the mother has no other close family in Australia, and it was identified that both parties have family in Country F. The father made reference to the poor area in which it appears the mother's family grew up and made reference to the potential exposure to criminal activity, given the nature of the area to which the travel may take place.
3. The father also submitted that such overseas travel might take place when the child is older and that it would be more appropriate to do so when the child was at a more mature age. Mr Hardy-Clements identified the mother as having worked with the same employer for the last two and a half years and maintained that she had strong community connections and intended the child to continue his education in New South Wales, and that there was no real risk because of those connections. Given the Court's orders for holidays and the relevant notification in respect of paid travel tickets. Mr Hardy-Clements also identified the significant benefit to the child in engaging with the cultural heritage on both sides of his family by being able to go back to Country F and also the maternal relatives with whom the child can engage, and in light of the advancing age and health of some of those relatives, that impacts on the meaningfulness of those relationships if there was to be further significant time before that overseas travel was able to be undertaken.
4. Mr Hardy-Clements submitted that there was no proper evidentiary basis for the fears expressed by the father and that the Court should make the orders proposed. Mr Mooney, as the ICL, supported the making of the proposed orders and submitted that there was no proper evidentiary basis to believe that the mother would not comply with those orders or that there was a real risk to the child of the mother failing to comply with the orders. The ICL identified that Country F was a Hague Convention country, but that there were complications of the kind to which the Court has already referred.

The Respondent Mother's child from a previous relationship passed away.

The Respondent Mother left the matrimonial home with X and the parties separate on a final basis.

The Respondent Mother made a report to NSW Police in relation to alleged previous domestic violence perpetrated by the Applicant Father.

A Provisional Apprehended Domestic Violence Order was made by NSW Police ('ADVO'). The Father being named as the Defendant and the Mother being named as the Person in need of protection ('PINOP').

The Applicant Father files in the Federal Circuit and Family Court of Australia seeking parenting orders.

The Respondent Mother is served with the Application.

The Respondent Mother files her Response Application.

Supervised contact time between the Father and Child commences.

A final ADVO is made in Suburb G Local Court naming the Mother as the PINOP from the Father. Concluding in early 2024.

The Applicant Father receives a verbal warning from H Centre for breach of their agreement.

The family report writer interviews the Applicant Father.

The family report writer interview the Respondent Mother.

The Applicant Father receives a further verbal warning from H Centre for breach of their agreement.

Supervised contact time between the Father and Child is suspended.

The parties attend mediation. Supervised time is to recommence.

Supervised contact time between Father and Child recommences.

The Applicant Father is charged with offences and fined.

The Applicant Father is involved in a traffic crash.

1. Contrary to the submission advanced by the father, the nature of the proposed parenting orders advanced by consent shows a real insight as to the importance of the father's role in relation to the child. In relation to section 60CC(2) of the Act, the Court does not accept that permitting the overseas travel proposed in the circumstances where there are paid air tickets, where it is for the limited purpose of a holiday, and as expressed in the order, where an itinerary is to be provided and in light of the other evidence to which the Court has referred as the connection by the mother with Australia, exposes the child to any risk of harm or any real risk of the mother declining to return to Australia.
2. The Court accepts that it would impose significant harm on the child, who has a relationship with his father, if he were to be kept overseas in defiance of the Court's orders and not returned. However, the Court does not accept, in the circumstances and on the evidence before the Court, that there is a real risk. The child is at an age where his views might be taken into account, but there is no relevant view expressed. In relation to the developmental, psychological, emotional and cultural needs of the child, they weigh heavily in favour of permitting the overseas travel as identified in the proposed orders by the ICL and the respondent, given that the cultural connection is on both sides of the family. There is a real benefit for the child in being permitted to travel overseas at this age, while seven is still a young age, it is not one where the Court is persuaded that there would be other than a real and beneficial impact on the child from that holiday and exposing him to where his parents come from including, insofar as the opportunity presents, meeting his broader family relatives, potentially on both sides of the family.
3. In relation to section 60CC(2)(d) of the Act, both parties have shown a level of parental responsibility that shows insight as to the best interests of the child being prioritised by the consensual parenting orders they have agreed to. In relation to section 60CC(2)(e) of the Act, it is apparent that the child has a meaningful relationship with the father and the Court finds that the mother has insight as to the importance of that relationship in respect of maintaining the best interests of the child. The Court accepts the proposition that if there were to be a breach of the Court's orders in terms of overseas travel for holiday purposes, that would materially and adversely impact on the beneficial relationship between the child and the father. However, the Court, for the reasons it has identified, does not accept that as a real risk.
4. In all the circumstances, the Court finds that it is in the best interest of the child to make the proposed orders 11 to 14, modifying 14(a) so as to read "copies of paid return tickets". It is for these reasons that the Court makes the orders on the limited issue in respect of which the parties were not able to achieve agreement, being orders 11 to 14.
5. In relation to the ICLs costs, the Court has had regard to section 117(2A) of the Act and, in particular, the financial circumstances of the parties and also, as was identified, the mother is in any event the subject of legal aid by reason of which no order would be made. The father had a section 102NA order which, whilst it does not constitute legal aid, is also taken into account, as are his apparent limited financial means. In all the circumstances the Court declines to make any order as to cost in respect to the ICL.
6. For these reasons the Court makes the above orders.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.