Anthis and Nasso

[2013] FCCA 223

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANTHIS & NASSO [2013] FCCA 223

Catchwords:
FAMILY LAW – Children – passport – travel out of Australia – where respondent did not file a response or attend court on the day of the hearing.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), s.65Y

Federal Circuit Court Rules 2001 rr.13.03C, 16.05

Applicant: MS ANTHIS

Respondent: MR NASSO

File Number: SYC 1995 of 2012

Judgment of: Judge Scarlett

Hearing date: 6 May 2013

Date of Last Submission: 6 May 2013

Delivered at: Sydney

Delivered on: 6 May 2013

REPRESENTATION

The Applicant: The Applicant appeared in person

The Respondent: No appearance

ORDERS

1. The Respondent Father shall within 7 days give all consents, sign all documents and do all things necessary to enable the Applicant Mother to obtain passports for the children [X] born [in] 2009 and [Y] born [in] 2011.

2. Failing the Father complying with Order (1), the Mother shall be at liberty and is hereby authorised to obtain a passport for each of the children absent the Father’s consent.

3. The Mother shall be permitted to travel with the children outside of the Commonwealth of Australia provided that the Mother provides the Father with the following:

   (a)Twenty-one (21) days notice of such intended travel;

   (b)An itinerary for such intended travel;

   (c)Contact telephone numbers and address for all places at which the children will stay during such travel; and

   (d)Copies of all travel tickets or bookings and in particular a copy of the return travel ticket.

4. For the purpose of the Mother travelling with the children in accordance with Order (3) the Mother shall be at liberty tom suspend the Father’s time with the children for up to fourteen (14) days with the Father to be at liberty to spend make up time with the children as agreed between the parties.

IT IS NOTED that publication of this judgment under the pseudonym Anthis & Nasso is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1995 of 2012

MS ANTHIS

Applicant

And

MR NASSO

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of two children for orders that would allow her to obtain passports for them and travel out of Australia with them for a holiday in Thailand.  

2. The parties have two children, [X], who was born [in] 2009 and [Y], who was born [in] 2011. The children live with her and spend time with their father, as provided by consent orders made between the parties on 14^th November 2012.

3. The Mother has not been able to obtain the Father’s agreement to the issue of passports for the children so that she may take them to Thailand for a holiday.

The Application

1. The Mother filed her Application on 19^th February 2013, seeking Orders that:

   a)The Respondent Father should, within 7 days, give his consent, sign the necessary documents and do all other things required so that the children could obtain passports;

   b)If he fails to do so, the Mother would be at liberty to obtain passports for the children without the Father’s consent;

   c)The Mother should be permitted to take the children out of Australia provided that she gives the Father proper notice; and

   d)For that purpose, the Mother should be at liberty to suspend the Father’s time with the children under the Orders of 14^th November 2012 for up to 14 days, with the time being made up later by agreement between the parties.

2. The Mother arranged for her father to serve sealed copies of the Application and her affidavit in support on the Respondent on 23^rd March 2013. Service was proved by affidavit filed on 10^th April 2013.

3. The Father has not filed a Response or any affidavit in reply.

4. The Father did not attend Court on the return date of the Application, although he was called at 12:48pm and 2:49pm. No message was received by the Court advising that the Father had been delayed, hindered or prevented from attending Court to illness, injury or any other emergency.

5. Accordingly, in the absence of the Father without any explanation, the Mother’s Application proceeded to hearing, as provided by Rule 13.03C.

Evidence

1. The Mother relied on:

   a)Her Application; and

   b)Her affidavit sworn on 11^th February 2013.

2. The Mother gave oral evidence.

Conclusions

1. Having read the Mother’s affidavit and heard her evidence, I can see no reason why the Mother should not be permitted to obtain passports for the children and take them to Thailand for a fortnight’s holiday. It is the Mother’s evidence that she has previously travelled to Thailand and is conscious of the risks to tourists that may be encountered. She will be spending time with the children at a resort where there are appropriate activities for young children. They will be under her supervision.

2. The Mother deposed that she has read the Smart Traveller Website produced by the Department of Foreign Affairs and Trade and will be guided by that Website in making her travel plans. She intends to buy travel insurance to cover the children and herself.

3. I am satisfied that this proposed trip will be in the best interests of the children, giving them an enjoyable holiday with a glimpse of another culture. I propose to make the Orders sought by the mother.

4. If the Father, who has taken no part in the proceedings at all, wishes to vary or set aside the Orders, he is at liberty to make an application under Rule 16.05. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 May 2013