Debney and Hansen

[2013] FCCA 1942

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEBNEY & HANSEN [2013] FCCA 1942

Catchwords:
FAMILY LAW – Holiday time – notice periods to other parent for overseas travel by the child.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Applicant: MR DEBNEY

Respondent: MS HANSEN

File Number: SYC 606 of 2007

Judgment of: Judge Neville

Hearing date: By written submissions

Date of Last Submission: 19 August 2013

Delivered at: Canberra

Delivered on: 22 November 2013

REPRESENTATION

Counsel for the Applicant: Self represented

Solicitors for the Applicant: n/a

Counsel for the Respondent: n/a

Solicitors for the Respondent: Friedlieb Byrne, Solicitors, Wagga Wagga

ORDERS

1. The parties must provide each other with a minimum of six (6) weeks’ notice if they wish to take the child, X (born (omitted) 2005) (“the child”) overseas;

2. The child’s name is to be removed from the AFP Airport Watch List;

3. The parties are to attend mediation or some other form of alternative dispute resolution (e.g. counselling) with a view to resolving any future parenting disputes;

4. No further applications may be filed by either party without the prior leave of the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

SYC 606 of 2007

MR DEBNEY

Applicant

And

MS HANSEN

Respondent

REASONS FOR JUDGMENT

1. The scope of this dispute is almost alarmingly small.  It concerns orders in relation to notice to be given to the other parent in the event that it is proposed the child, X, travel overseas.

2. The Father seeks a notice period of two months; the Mother seeks a notice period of one month. Essentially this issue has occupied the time of the parties and their respective lawyers for a very significant number of months. For part of the time, the Father was legally represented courtesy of the Legal Aid office in the ACT. For most of the time, he has been a self-represented litigant.

3. In addition to having her own attorney, the Mother is married to a barrister who regularly appears before this Court.  I understand that her now-husband may formerly have acted for her prior to their marriage.

4. Parenting orders were made by this Court by consent on 12^th February 2010.  The child who is the subject of these proceedings will turn 9 in January 2014.  It would seem to be agreed that the parties wish to discharge the 2010 orders and in doing so, replace them with others and, as already noted, with only the issue of notice regarding travel remaining not formally agreed. 

5. Neither party addresses, for understandable reasons, the so-called legislative pathway in Part VII of the Family Law Act1975 (“the Act”). For my part, given how narrow the scope of the dispute is, I do not think that I need address the detail contained in Part VII of the Act, except to note that any parenting order must, of statutory necessity, have regard to the child’s best interests as the paramount consideration, pursuant to s.60CA of the Act.

6. In any event, the dispute might more correctly be characterised as one involving “machinery” or facultative orders.  Indeed, I regard precisely in those terms.

7. While I understand the Father to be highly distrustful of the Mother and her barrister Husband, formally there is no evidence before the Court that relevantly assists in determining which time period of notice sought by the parties (or any other period of notice) is appropriate in all of the circumstances, and in the best interests of the child.  The Court has to balance what is reasonable notice in all of the circumstances.

8. In my view, a period of notice of two months is perhaps a bit too extreme at one end, while one month’s notice (sought by the Mother) is perhaps not quite enough. 

9. In all of the circumstances, a period of notice of 6 weeks is the Court’s determination as to the appropriate notice of intention to take the child overseas.

10. To the degree that it is necessary, I agree with the Mother’s further submission that for more abundant caution, it is appropriate for the Court to make an order to remove the child from the airport watch list.

11. Finally, so as to ensure that the parties seeks to resolve any other matters by non-litigious means, it is also appropriate to make an order that no further applications may be filed by either party without the prior leave of the Court; and further, prior to seeking such leave, the parties are to attend mediation or some other form of alternative dispute resolution (e.g. counselling) with a view to resolving any future parenting disputes.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:  22 November 2013