Cook and Cook

[2016] FCCA 435

FEDERAL CIRCUIT COURT OF AUSTRALIA

COOK & COOK [2016] FCCA 435

Catchwords:
FAMILY LAW – Interim parenting – application for watch list order is refused – international relocation.

Applicant: MS COOK

Respondent: MR COOK

File Number: MLC 5314 of 2013

Judgment of: Judge Harland

Hearing date: 24 February 2016

Date of Last Submission: 24 February 2016

Delivered at: Melbourne

Delivered on: 24 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Barbayannis

Solicitors for the Applicant: Ms Lane

Counsel for the Respondent: Tisher Liner FC Law

Solicitors for the Respondent: Westminster Lawyers

ORDERS

1. The application for interim orders filed on 3 December 2015 is dismissed.

2. Pursuant to section 39 of the Federal Circuit Court of Australia Act 1999 (Cth), these proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5314 of 2013

MS COOK

Applicant

And

MR COOK

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the mother for international relocation to (country omitted)  The matter was previously before me, where it was indicated it was not possible to list this matter in a timely manner as this Court, due to its chronic shortage of judicial and other resources, has not been able to maintain the relocation list that it did have in this registry to be able to deal with relocation matters.  There is a protocol between this Court and the Family Court whereby, in usual course, international relocation matters would be dealt with by the Family Court.  As Ms Lane points out, that may be a reason under the Family Court Rules 2004 (Cth) to expedite the matter. 

3. In my view, it is relevant that this Court cannot deal with it in any way until next year, which would render the mother’s application nugatory.  Whether or not the Family Court can deal with it any quicker than this Court, I do not know.  However, I am satisfied that it is appropriate to transfer the matter.  The next issue to deal with is whether or not I should make an order requiring the mother to surrender the children’s passports to her solicitors.  Initially, the father was seeking the children be placed on the airport watch list.  He no longer seeks that but seeks that the passports be held.  There needs to be a basis for making orders, first of all, under the airport watch list.  It is not enough that someone is seeking to relocate overseas to say that there is a risk of the children being removed from the jurisdiction.  The airport watch list is something that is managed by the Australian Federal Police (“AFP”) and has some onerous conditions that the AFP need to deal with and that matter has been well recorded in previous reports. One of the big problems the AFP has is the airport watch list remaining on foot for years and then people trying to leave the country by consent and being stopped because of the airport watch list. 

4. In my view, the material does not disclose any grounds for an airport watch list order.  In terms of the passports, again, there needs to be an order to make what is in effect a restraint and there needs to be some basis for it. It is not enough to say that the mother is relocating therefore, there is a risk.  In fact, it is clear that what she has done is sought permission of the Court to relocate.  The father’s submission was that if she wanted to go on an overseas holidays, such as to (country omitted), he would not unreasonably withhold his consent.

5. That seems inconsistent with the position that the passports need to be held by the solicitor, because surely if there she was going to go to (country omitted) she could go on to anywhere in the world if there was a real concern that she was going to do that.  I am not satisfied that the evidence reveals that that is a real possibility and I decline to make that order. 

6. The order I will make is to transfer this matter to the Family Court of Australia in the Melbourne registry. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 2 March 2016