Chance and Ellen

[2012] FamCA 183

FAMILY COURT OF AUSTRALIA

CHANCE & ELLEN [2012] FamCA 183

FAMILY LAW - CHILDREN – Application by mother to have previous parenting orders discharged – application granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Chance

RESPONDENT: Mr Ellen

FILE NUMBER: HBC 9 of 2012

DATE DELIVERED: 6 March 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 6 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Orders 3, 4 and 5 made by this court on 12 April 2006 (copy order attached) be discharged.

   IT IS NOTED

2. Each of the parents have parental responsibility for C Ellen born

   
   

   … June 1994 (“C”) and S Ellen born … August 1996 (“S”) set out in s61C of the Family Law Act.

   IT IS FURTHER ORDERED

3. Order 6 of orders made 12 April 2006 is suspended in so far as it relates to the father spending time with the child S and IT IS NOTED that arrangements can be made for S to spend time with her father in accordance with any agreements reached between the mother, the father and S individually or at a Family Relationships Centre or as otherwise ordered by a court exercising jurisdiction under the Family Law Act.

4. Order 9 of orders made 12 April 2006 be suspended NOTING this order had required the mother to provide clothes for C and S.

5. Order 10 of orders made 12 April 2006 which restrains the father and mother from removing the children from the State of Tasmania is DISCHARGED and IT IS NOTED that it is open for the children to travel within Australia in accordance with arrangements made by their parents.

6. As and from 8 April 2012 Ms Chance (“the mother”) may apply for a passport for S born … August 1996 without obtaining the consent of Mr Ellen (“the father”) and that the mother has sole parental responsibility to apply for and obtain a passport for S in the absence of a signature on or on behalf of the father and THE COURT REQUESTS that the Department of Foreign Affairs facilitate the issue of a passport in respect of S.

7. The mother be permitted to remove S from the Commonwealth of Australia for the purpose of a trip to the United States in the second half of 2012 or the first half of 2013 provided that the mother shall inform the father, in writing, by ordinary pre-paid post, of the time, date and duration of the proposed trip, noting the trip will not be longer than twenty eight (28) days.

8. The mother be otherwise permitted to remove S from the Commonwealth of Australia provided the mother gives the father at least six (6) weeks written notice in advance if she proposes to do so and that it did not involve a change of residence for the child to outside the Commonwealth of Australia.

9. That 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 REQUESTED

10. A Registrar of this Court forward to the father, by way of ordinary pre-paid post a copy of this order, a copy of the affidavit of the mother filed today in court together with a letter informing him if he wishes to have the matter re-listed to argue the question of these orders he must do so on or before 4.00pm on 5 April 2012.

    IT IS FURTHER ORDERED

11. These orders will not become final orders until 6 April 2012 unless an application is made by the father in the meantime.

12. This matter be removed from the list of cases requiring determination.

    IT IS DIRECTED

13. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:  HBC 9 of 2012

Ms Chance

Applicant

And

Mr Ellen

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Chance, the mother, for orders in essence relating to her youngest child, S, who was born in August 1996.  The mother wants an order to enable her to continue parenting S, the child, suspend an order for contact between S and her father except as arranged between them or otherwise ordered by a court under the Family Law Act 1975 (Cth), to discharge an order preventing the child from leaving the State of Tasmania without the written consent of the other party or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth), and for permission to take her daughter to Disneyland later this year.

2. The mother is unrepresented and filed her application in this Court on 6 January 2012.  The matter came before a Registrar on 8 February 2012.  At that time there was no appearance by the father, Mr Ellen.  The mother had filed an affidavit of service by Mr D, a mercantile agent, upon which she relies deposing that her application had been served upon the father on 20 January 2012 at 9.00 pm.

3. The proceedings were adjourned for hearing before me today, and the mother relied upon a letter sent to the father by the Court on 9 February 2012 indicating that the matter had been listed for a possible undefended hearing before me.  The husband was called today, and there was no appearance by him.  The mother did not file an affidavit in advance of the proceedings but sought to rely upon one which she filed today.  I am conscious that the father has not seen that affidavit, and the mother acknowledges that he has not seen it.

4. I intend to make the orders today, but I intend to give the father leave to apply over a period of four (4) weeks so that if there is something in the affidavit to which he takes issue or if he wishes to have the matter relisted and argue the orders it will be available for him to do so.  I am conscious that the Family Law Act 1975 (Cth) provides that I am to try and deal with matters such as this with as little formality as possible and to get to the issues which are to be determined. I propose to do so, and that is the course I will adopt.

5. The first issue raised by the mother is in terms of the time S sees her father.  There appears in the affidavit to be significant continuing unhappiness in this family which has been, no doubt, a constant for many years.  I make no comments as to why that occurs.  It is not clear from the material.  It is clear that the child S, on the material at least, has not had any physical contact with the father since Christmas Day 2009.  I note that the father continued to send a birthday card and gift voucher to S up until last year, but she received nothing from her father this year.  The father continues to pay child support.

6. It seems to me that an order requiring the child to spend time with the father at this stage ought to be suspended, and if an issue arises, then that matter can be either negotiated with the mother, the child and the father at a Family Relationship Centre, or if that does not occur, then an application can be made to this Court or another Court exercising jurisdiction under the Family Law Act1975 (Cth). I intend to make that order.

7. The second order which the mother is seeking relates to the provision of clothes for an elder child, C, who turns 18 in June this year, and S when they go to the father.  It seems to me that that order should, for the reasons I have articulated earlier, fall into that category, and I will suspend that order as well. 

8. The third area to which I will allude is the requirement the mother and father act jointly in terms of any decisions to be made with regard to S. It is clear that that has not occurred for many years. I intend to discharge the order for joint parental responsibility and leave in place the provisions of s 61C, which means that each of the parents has parental responsibility of the child.

9. The fourth issue relates to an order preventing the children from going outside the State of Tasmania.  I note that these orders were made some six years ago, when the youngest child would have been 10.  The child will be 16 in August, and it seems to me that there is no reason why there ought to be an order preventing her from travelling interstate, bearing in mind the material contained in the affidavit to which I have had regard.  I intend to discharge that order completely.

10. The final issue is this:  the mother wishes to take S to the United States to visit Disneyland for her 16^th birthday.  The mother has endeavoured to obtain the consent of the father to enable the issue of a passport, and that has not been forthcoming.  I intend to give the mother sole parental responsibility and request that the relevant Commonwealth Department issue the passport at the request of the mother.  I intend also to give permission to the mother to leave the Commonwealth of Australia later this year for the purpose of a trip to Disneyland.  If the mother wishes to take the child out of Australia for any other trips, she will have to notify the father, and if she does so, then as long as it’s notification well in advance with details of when she’s leaving and when she’s returning, she will be able to take the child out on other occasions.

11. I am conscious that the father has not been made aware of the material contained in this affidavit.  I will give him 28 days in which to have the matter relisted before me, and I will not permit the mother from obtaining or requesting a passport over that period of time, but she will be able to do so at the end of that time.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 March 2012.

Associate:     

Date:              6 March 2012