Butler and Marte

[2009] FamCA 1243

FAMILY COURT OF AUSTRALIA

BUTLER & MARTE [2009] FamCA 1243

FAMILY LAW – CHILDREN – Permission to travel – Ex parte

APPLICANT: Ms Butler

RESPONDENT: Mr Marte

FILE NUMBER: SYC 6387 of 2009

DATE DELIVERED: 11 November 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 11 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hugh Byrne Solicitor

RESPONDENT: No appearance

Orders

1. That leave is granted to the Applicant Mother to have her applications before the Court today heard ex parte.

2. That the Applicant Mother hereby permitted to make application to the Australian Passport Office for the issue of an Australian passport in the name of the child M born … November 1992 without requiring the written consent of the Respondent Father to do so.

3. That the Applicant Mother be permitted to take the said child outside the Commonwealth of Australia for the purpose of a holiday to Austria during the period 10 December 2009 to 20 January 2010 inclusive.

4. That for the purpose of the holiday referred to in Order 2 above and any future overseas holiday for the said child pending her attaining 18 years of age, the name of the said child shall not be permitted to be placed on or remain on the airport watch list.

5. That the Respondent Father pay the costs of the Applicant Mother on an indemnity basis.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6387 of 2009         

MS BUTLER

Applicant

And

MR MARTE

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, which are ex parte, the mother seeks to have a passport issued to the party’s seventeen year old daughter M so the family – that being the mother, her nineteen year old daughter and M – can visit the mother’s parents in Austria.  The father is living somewhere in South East Asia, so far as the mother knows.  She does not know where he is living, and the reason why she does not know seems to be clearly inferred from the fact that the father, since living overseas, has not paid any support for either of the children and now owes $15,000, according to the child support agency. The father obviously has been contacted in some way by the mother, or knows that she wants to take the children overseas, because in September of this year he sent an email to the mother which makes it perfectly clear that he knows that the mother is seeking his consent to the issue of a passport for M. To put it simply, the father’s response by this email has been that if, the mother abandons all her rights to future child support for M and provides the father with a release in relation to the $15,000 he is said to owe for child support, he will sign a passport application. 

2. It is my view that the mother has not satisfied me that she could not have let the father know about this application. In his email he says that she should go ahead and make her application and infers that she should make it ex parte, or at least infers that he would not be defending it, because all he wishes to do is put her to the expense of making the application.  It is my view that, in those circumstances, if the father is served, he will not appear and he will not actually take any steps which might involve an expense to him to defend the application; his aim being simply to put the mother to unnecessary expense.

3. It is also clear that, if he was to come to Australia for the purpose of defending the application, the child support agency would seek a departure prohibition order. He is, for that reason, highly unlikely to come to Australia to defend this application. It is also my view that, because it is clear by inference that M wants to accompany her mother to Switzerland to visit her parents, it must be in M’s best interests to be able to do so; that prima facie, her best interests are that she be allowed to go on this holiday. 

4. However, it is also my view that if the father were to defend it he would fail, clearly.  In fact, he would have virtually no prospect of success in all of the circumstances.  I am of the view that, despite the failure to serve the father, this is a matter which warrants summary judgment in favor of the mother.  So, despite my lack of satisfaction about proper notice being given to the mother, it is a matter where proper notice could not possibly make a difference to the outcome. Therefore, I should make the order that she seeks.

5. I shall make the third order because there is a need to allow this child, who will soon be an adult and whose wishes are extremely powerful reasons to grant any orders the mother seeks, to go overseas whenever she and the mother see fit. There should be a removal of the child from any watch list that she is on, if she is on one, and an order that she remain off any airport watch list.  They are the orders I make.

6. In this matter, the mother also seeks costs.  I think that the morality of the father’s stance, which is nothing more than blackmail, warrants an order for indemnity costs.  I make that order

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date:        15 December 2009