Can you stop your ex leaving Australia?
You might be glad to see the back of your ex but sometimes the last thing you want is for them to leave the country, avoiding financial or legal consequences. And potentially taking marital assets out of the jurisdiction with them. The answer to the question “can you stop your ex leaving Australia?” is a qualified yes. It is possible for our family courts to make injunctions that stop someone’s overseas travel. But the reasons for the injunction, and the evidence presented to make a case, need to be very strong indeed.
In the time of the pandemic, our “freedom of movement” is somewhat theoretical. Countries around the world have imposed extraordinary measures including limiting their citizens’ overseas travel. But movement between countries is a fundamental human right. Article 12 of the UN International Covenant on Civil and Political Rights states that “everyone shall be free to leave any country, including his own”. Balanced against this freedom is the need to prevent someone from fleeing a jurisdiction to avoid legal action.
In family law, we more often see the family courts make orders that prohibit a child from being taken overseas without a parent’s consent. A child’s name can be placed on the Family Law Watchlist (aka the Airport Watchlist or All Ports Watchlist). But we do also see the courts use their power to make injunctions against adults in property, financial and child support matters. Their name can then similarly be placed on the Watchlist, preventing their travel. The difficulty for the courts is that these injunctions are highly restrictive. They interfere with our right to freedom of movement. As such, there needs to be compelling reasons why the injunction is necessary.
A recent case in the family courts (pseudonymised as “Parsi & Zomorod”) traversed this very issue. A wife urgently sought that her ex husband be restrained from leaving the Commonwealth of Australia. But the court found her application to be “without merit on the facts”. The judge took the opportunity to remind lawyers and barristers that pursuing an application which the lawyers know is doomed to fail can lead to costs consequences for the lawyers and barristers.
Quick case background
The couple had lived together for four years and had no children. They moved together to the US where the husband had employment and lived there for years. They travelled between Australia and the US frequently. When the relationship was ending, there was an alleged incident of assault against the wife. She also made allegations of historical family violence incidents. At the time the husband was bailed on the assault charges, and he was restrained from leaving Australia as part of his bail conditions.
However, the charges were dismissed after a contested hearing. The husband was able to have his passport returned to him and have the travel ban lifted. An AVO police had taken out was also withdrawn. There is to be a further defended hearing this year on the historical assault charges alleged by the wife. But the court noted that the husband was not subject to any travel restriction relating to those charges.
Due to the assault allegations and travel restrictions already experienced, the husband has been unable to work at his job in America.
On what basis did the wife seek the injunction?
The family court noted it needed strong evidence in order to exercise this “draconian power”. But the only argument the wife was able to advance through her counsel was that she felt the husband was not complying with his duty of disclosure.
However, just because disclosure had been slow, it did not automatically mean the husband was not meeting his obligation. The judge pointed out that “disclosure in financial matters is an ongoing and continuing obligation”. This particular matter was complex, involving company structures, shares and interests of other parties. As such it was accepted that disclosure could take some time. The court found the husband was “continuing to provide that which the [wife] seeks and agreed to all the orders sought in respect of additional disclosure”. This basis for an injunction could not be maintained.
The court said that even if it had been persuaded that the husband had failed in his duty of disclosure, this would still not be a sufficient basis for the court to order an injunction.
Why did the court find the husband was likely to return to Australia?
The husband still has to defend himself against the historical assault charges against the wife in Australia. In fact he needs to successfully defend those charges in order to be able to keep working in the US. As such he is highly motivated to return to Australia for the hearing should he remain allowed to travel overseas. He also has family relationships in Australia that he is motivated to continue to maintain through back and forth travel.
Can you stop your ex leaving Australia: Key takeaway?
Injunctive orders are not made lightly in the courts. Judges have to exercise due care before making orders that restrain someone from travelling overseas. The impingement on our freedom of movement means there needs to be a truly compelling reason for such orders to be made.
In assessing such a case, the court will scrutinise the behaviour of parties as it can be revealing of motive. For example, is a respondent party taking steps to wrap up their life here, with the clear intent to leave the jurisdiction without returning? Do they have binding ties to Australia? And what about the applicant party—are they motivated to keep an ex-partner “stuck here” out of vengeance?
So can you stop your ex leaving Australia? You always have the option to seek injunctive relief if you are concerned your ex-partner wishes to abscond from the country. However, it’s highly recommended you seek legal advice on your prospects of success.
You can read this judgment in full here.
Do you need help with seeking an urgent injunction in a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
