Burton and Churchin and Ors

[2012] FamCA 477

FAMILY COURT OF AUSTRALIA

BURTON & CHURCHIN AND ORS [2012] FamCA 477

FAMLY LAW – CHILDREN – temporary removal from airport watch list for an overseas holiday in circumstances where the 2^nd respondent could not be notified

Family Law Act 1975 (Cth)

APPLICANT: Ms Burton

1^st RESPONDENT: Ms Churchin 

2^nd RESPONDENT: Ms Myers 

INTERVENOR: Department of Family & Community Services

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 3338 of 2011

DATE DELIVERED: 20 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

SOLICITOR FOR THE 1^ST RESPONDENT: Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE 1^ST RESPONDENT: No appearance

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

Orders

1. That Ms Churchin (the “first Respondent”) be permitted to remove C (born … September 2003) (“the child”) from the Commonwealth of Australia for the period on or about 22 June 2012 until no later than 14 July 2012 for the purpose of a family holiday in France.

2. That it be noted for the purpose of travel between Australia and France and return the child will be accompanied by either the first Respondent or a member of the first Respondent’s family who is known to the child or a school companion of the child and known to the child and accepted by Ms Burton (the “Applicant”).

3. That for the purpose of travel between Australia and France and return the first Respondent shall ensure the child travels by the most direct route and that as far as possible the child only enter or travel through countries which are parties to the Hague Convention on the International Abduction of Children.

4. That the first Respondent ensure that at all times whilst the child is in her care, the child shall be free to, able to and the first Respondent shall facilitate the child communicating with the Applicant and the child’s sister D, by appropriate electronic means, including Skype and or telephone.

5. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burton & Churchin and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3338 of 2011

Ms Burton

Applicant

And

Ms Churchin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the applicant seeks orders to be made to allow C born in September 2003 (“the child”) to holiday in France in the forthcoming holidays.

2. The applicant has attempted to serve the Application in a Case filed 19 June 2012 upon Ms Myers at E Street, Suburb B, which is the address on the Notice of Ceasing to Act that was filed by her lawyers on 15 June 2012. Those attempts were made on three occasions, yesterday (19 June 2012) and two occasions today (29 June 2012) but unsuccessfully. A mobile telephone number thought to be the telephone number of Ms Myers was called but was answered by a male who said it was a wrong number.

3. The circumstances in which the application is made are that there are currently interim orders in place granting interim sole care and responsibility of the child to Ms Burton and there is an interim order in place that the mother not have contact with the child. That order was made by Justice Fowler on 7 June 2011 and was varied in a minor way to allow a expert report to be prepared. The background of that interim order being made is that the child’s father died in May 2011 and the mother is a person of interest to the police and their inquiries in relation to that death.

4. The current application is supported by the Independent Children's Lawyer and by the Department of Family and Community Services and from the material that has been filed I am satisfied that it is in the child’s best interests for an order to be made in the terms as sought.

I certify that the preceding four (4) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 20 June 2012

Associate: 

Date:  20.6.2012