Dutney and Chasper

FAMILY COURT OF AUSTRALIA

DUTNEY & CHASPER

[2007] FamCA 1662

FAMILY LAW – CHILDREN – Passport – child permitted to travel overseas for holiday purposes

Family Law Act 1975 (Cth)

APPLICANT:

Ms Dutney

RESPONDENT:

Mr Chasper

INDEPENDENT CHILDREN’S LAWYER:

Mary-Ann Huth

FILE NUMBER:

BRF

584

2006

DATE DELIVERED:

4 June 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

4 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms Barbour, Solicitor, Anthony Black Family Law Services

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

CONDITIONED UPON the lodging of $20,000 security with the mother’s solicitors in relation to each occasion of travel

IT IS ORDERED

The mother be permitted to leave the Commonwealth of Australia with the child … born on … October 2005 for the purpose of holidays as follows:
(a)from 5 June 2007 to 20 July 2007 for the purpose of travelling to Malaysia only and then returning to Australia
(b)from 23 November 2007 to 3 February 2008 for the purpose of travelling to Malaysia only and then returning to Australia.
The mother is permitted to travel with the child overseas as provided in these orders notwithstanding that the consent of the father for the child to so travel has not been first obtained.
The Australian Federal Police are requested to remove the name of the child from the Airport Watch List in force at all points of departure from Australia and the PACE alert be removed.
The Family Court of Australia, Brisbane Registry, release the child’s passport today to the mother’s solicitors.
The mother, by her solicitors, re-lodge the child’s passport with the Family Court of Australia, Brisbane Registry, within 7 days of the return to Australia of the child after each occasion of travel.
The mother’s solicitors, upon re-lodgement of the passport pursuant to paragraph 5 after each occasion of travel, may release the security to the person who provided it.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF584 of 2006

MS DUTNEY

Applicant

And

MR CHASPER

Respondent

REASONS FOR JUDGMENT

This is an application in form 1 filed on 2 May 2007 by the mother that she be permitted to leave the Commonwealth of Australia with the child … born in October 2005 for the purposes of two holidays, 5 June 2007 to 20 July 2007 and 23 November 2007 to 3 February 2008, each for the purpose of travelling to Malaysia; the mother be permitted to travel with the child overseas, notwithstanding the consent of the father for the child to travel has not first been obtained; the Australian Federal Police remove the name of the child from the PACE Alert system; the Family Court of Australia Registry release the child's passport to the mother; the mother be entitled to retain the passport; and costs.
There is no appearance by the child's father Mr Chasper.
I am satisfied that the application and supporting material have been served on the father and thus that he has had notice of the mother's application and its listing today. See the amended order made on 3 May 2007 and the affidavit of service of Mr G filed by leave today proving personal service on the father.
However, the service was able to be effected only last Thursday evening,

31 May 2007
, which is with the intervening weekend only one clear day service.
The circumstances, however, as appears by the affidavit of the mother's solicitor Simone Andrea Barbour filed by leave today, are that the process server was engaged in a timely fashion, namely 3 May 2007, the date of my last order and, for reasons set out in Ms Barbour’s affidavit, was unable to locate the father until last Thursday.
I appreciate that the Rules of Court contemplate that for applications for final orders, which certainly today's application comprises, usually intend that respondents be given about 28 days notice. However, in the history of this matter, including its history prior to 3 May 2007, and my view based on the matters shown on the record as having occurred prior to that date, it is likely that the father may have been evading service and thus I am entitled to consider either waiver of the Rules or some appropriate abridgement of the times referred to in them.
Having given this matter further thought since 3 May 2007 when it was last listed, I had in mind this morning that if the mother's solicitors and the process server engaged by them had been unable to effect any personal service at all the circumstances are such that I would have been prepared to waive compliance with the rule requiring special service by hand, and indeed under Rule 7.18 dispense with service altogether if I had been satisfied that despite effort the mother's solicitors had been unable to serve the father at all.
Against that background it seems to me that it would be appropriate that I regard the service, which has been special service by hand, as good service complying with the Rules and to the extent necessary abridge time and waive compliance with any relevant Rule relating to time in order to allow the matter to proceed today.
In particular, in relation to Rule 17.18(2)(b) I am satisfied that all reasonable steps have been taken to serve the father earlier than last Thursday, and realistically in the pursuit of these matters there has to be a limit to the number of steps that a party properly should be required to take using all best endeavours to comply with the Rules.
Moreover, as I have said, I am satisfied in any event that at least last Thursday the father was personally served by special service by hand with the material. His name has been called three times today and he is not here, for example, to seek an adjournment because of the short service.
I am satisfied, therefore, in all respects that appropriate notice has been given to the father of the application, although it is for final relief, and that it is appropriate to proceed.
I am satisfied that there is jurisdiction to grant the application on the basis that the orders sought relate to the welfare of a child. See s 67ZC(1) of the Family Law Act1975 (Cth). See also GDPW & IDPW (2004) FLC 93-206, at pars 3-6.
Section 67ZC(2) provides that in deciding whether to make an order under s 67ZC(1) the Court must regard the best interests of the child as the paramount consideration.
RECORDED : NOT TRANSCRIBED
I am satisfied that the orders the mother seeks are in the child's best interests and that I should make the orders sought, which orders are not opposed by the independent children's lawyer.
In short, the child is one year and eight months. The child has not spent time with the father since September 2006. The mother is a young woman, 31 years. Her parents are Australian citizens presently living in Kuala Lumpur relating to her father's employment. The mother does not own real property in Australia, but has her own ties here, including her usual residence with the child in her parents' Australian home at Brisbane, her relationship with her only sibling, a brother, 34 years, who also shares the maternal grandparents' home at Brisbane, as well as extended family in Australia and her proposed enrolment to undertake a university course at University from the beginning of semester 2, 2007, which commences on 23 July 2007. The next university vacation falls between 23 November 2007 and mid February 2008. Hence the two periods of travel referred to in the mother's application. The mother says, which I accept, that it would be in the child's best interests to undertake travel so that he may spend time with the maternal grandparents, who provide significant support to the mother. In Malaysia the mother proposes to stay with the child in the maternal grandparents' home in Kuala Lumpur which address is known to the independent children's lawyer.
In the future the mother would like to take the child to Switzerland and other countries, however, she has made clear that for the periods the subject of the present application she does not propose to travel with the child to any countries other than Malaysia.
The maternal grandparents propose to return to Australia when their period of employment in Malaysia has come to an end and to retire in Australia. The mother considers Australia to be her home and to raise the child in Australia.
The mother and the child previously have travelled to Malaysia between

14 November 2006 and 28 December 2006 pursuant to orders made by the Honourable Justice Jordan on 18 September 2006 in relation to which as a condition of the orders the maternal grandfather provided $20,000 security which was returned to him following the mother and the child's return and following which pursuant to those orders the child's passport was lodged with the Registry.
The mother seeks that as she has already once travelled outside of Australia with the child and returned she not be required to provide security, but that if security is required her parents again would provide $20,000. In my view having regard to the child's age and in particular that at present the child is not seeing the father security should be provided. The mother's solicitor's affidavit filed today provides that the mother’s father already has paid $20,000 into the mother's solicitor's trust account for that purpose.
The mother's affidavit (but not her application) seeks also extended orders for permission to take the child overseas generally to Malaysia or Switzerland during holiday periods, but not more than twice per year, and for that purpose that she be entitled to retain the child's passport.
In my view, however, travel beyond the period specified in the present application should be the subject of a further application in 2008 on notice to the father. By that stage it may well be appropriate for a general permission order to be made, for security not to be required and for the mother to have custody of the child's passport. The father, however, would have to be put on specific notice of such a wide application.
The father, however, is on notice that the mother seeks an order that the PACE Alert be removed and on the material I can see no reason why that ought not be done, that is to say that upon the mother's return the PACE Alert not be further put in place.
I will make orders in terms of paragraphs 1 to 4 of the application in form 1 conditioned upon the deposit of $20,000 into the mother's solicitor's trust account, which I note has already occurred.
RECORDED : NOT TRANSCRIBED

I will further order that the child's passport be released today to the mother's solicitors and that the mother within seven days of her return to Australia again lodge the child's passport with the Registry.
RECORDED : NOT TRANSCRIBED
There are circumstances certainly where I might more favourably have considered the wider orders. However, as I said, there is the aspect of the child's age and the fact that the father and the child are not seeing each other, combined with the circumstance procedurally that to make wider orders specific notice of them would have to have been given. It seems to me that on the next occasion, assuming no incident and the return of the child, there would be ample ground for the mother then to have custody of the child's passport and liberty to take the child overseas, perhaps conditioned only on written notice to the father 30 days beforehand of the travel arrangements and itinerary. That can be looked at next year, hopefully with a positive resolution.
RECORDED : NOT TRANSCRIBED
The last order will be that upon lodgement of the child's passport the mother's solicitors be at liberty to release the security to the father.
RECORDED : NOT TRANSCRIBED
The best thing might be if I order that the mother by her solicitors lodge the passport with the Registry, because then you know that once it is done, you can release the money.
RECORDED : NOT TRANSCRIBED.

MS BARBOUR: And your Honour, you would not have any objection to the moneys held as security being invested on an at call basis?

HER HONOUR: No.

MS BARBOUR: Thank you, your Honour.

HER HONOUR: I will not put that into the order, because it is on the record that I have said that that is in order.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate

Date: 4 June 2007

[2007] FamCA 1662

4 June 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Jurisdiction

Costs

Remedies