Fountain and Klegg

[2009] FamCA 653

FAMILY COURT OF AUSTRALIA

FOUNTAIN & KLEGG [2009] FamCA 653

FAMILY LAW – ORDERS – discharge – application by the mother seeking ex parte orders discharging a previous order of the Court which restrained both parents from removing the child from the Northern Territory or Australia without consent – where the father’s whereabouts are unknown – where the father has had no contact with the child since 2007 – where the mother has been solely caring for the child – where the mother wishes to travel overseas to visit family – where it is in the child’s best interests for her to be able to travel with her mother – previous order discharged – father restrained from removing the child from the Northern Territory or Australia

Family Law Act 1975 (Cth)
APPLICANT:	Ms Fountain

RESPONDENT: Mr Klegg

FILE NUMBER: NCC 979 of 2008

DATE DELIVERED: 15 June 2009

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 15 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: NOT APPLICABLE

SOLICITOR FOR THE APPLICANT: MOTHER IN PERSON

COUNSEL FOR THE RESPONDENT: NOT APPLICABLE

SOLICITOR FOR THE RESPONDENT: NOT APPLICABLE - EX PARTE APPLICATION

Orders

1. That the Orders made by this Court on 19 March 2001 be and the same are hereby discharged.

2. That the father Mr Klegg be restrained from removing and/or causing or allowing the child … (“[the child]”) born … November 1994 to be removed from the Northern Territory of Australia or from the Commonwealth of Australia without further Order of this Court TO THE INTENT that :-

   (a)the mother Ms Fountain is entitled to remove the child from the Northern Territory of Australia or from the Commonwealth of Australia at any time she so chooses; and

   (b)that the child may independently on her own, or in the company of others SAVE AND EXCEPT for the father Mr Klegg, leave the Northern Territory of Australia or the Commonwealth of Australia.

3. That in accordance with the provisions contained in paragraph 2 of these Orders the Australian Federal Police place the name of the said child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of this Honourable Court.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: NCC 979  of 2008

MS FOUNTAIN

Applicant

And

MR KLEGG

Respondent

REASONS FOR JUDGMENT

1. I have before me today the Initiating Application of the mother filed this day in which she seeks ex parte Orders effectively discharging Orders made by this Court on 19 March 2001.  Those Orders restrain either of the parents of the child born in November 1994 from removing her from the Northern Territory without the written consent of the other and they are also restrained from removing the child from the Commonwealth of Australia.  The child is 14 years of age.  The mother seeks that the application proceed ex parte on the basis that she does not know where the father resides and does not know how she might contact him. 

2. The child lives with the mother who has sole parental responsibility for her pursuant to an order made by the Children’s Court of New South Wales on 17 April 2007.  Those Orders clearly arise from welfare proceedings and not proceedings in this Court.  However, I note from annexure “B” to the mother’s affidavit also filed this day that the Orders of the Children’s court have now been registered at the Newcastle Registry of the Family Court, that having happened on 5 May 2008.  The Children’s Court proceedings resulted from concerns about the father’s care of the child, which proceedings eventually resulted in the child being permanently removed from his care and placed with the mother.

3. I am satisfied that there is no reasonable manner in which the mother might identify the father’s whereabouts and in the circumstances of the case, I do not deem it appropriate that I make any Order for substituted service.  The mother records in her affidavit that authorities with far greater investigative opportunities than she does have found it impossible to locate the father.  Those Departments that she refers to include the Department of Children’s Services in New South Wales and the Child Support Agency.  I further note the mother’s intimation that she was informed by the Child Support Agency that the father has not filed any taxation returns for several years.

4. I am satisfied that the Orders sought by the mother would represent the child’s best interests to the extent that it is necessary for me to consider the child’s best interests.  The father has had no contact with the child since she was returned to the mother’s care in February 2007.  The mother has undertaken the task of parenting the child solely and independently and without any financial assistance from the father.  She has indicated that the father’s family members do not communicate with her and have also had no contact with the child for some time now.

5. The mother’s application is important to her and to the child in that they may be unable to leave Australia.  The mother is very keen to visit her mother who resides in Canada as her mother has recently suffered a series of strokes and is quite unwell.  The four weeks of the Northern Territory June / July school holidays provide an ideal opportunity for the mother and the child to visit the child’s maternal grandmother.  The mother has booked the flights to Canada departing on Tuesday 23 June 2009 and returning on Tuesday 21 July 2009.  It is at considerable expense to the mother and it is thus also important to her to be assured of leaving the country prior to paying the full amount of the costs she will be incurring and which I note are in excess of $7,500.00.

6. In preparing the matter for hearing today I requested that the child be interviewed by the Court’s experienced Family Consultant Mr V who undertook a half hour interview with the child just prior to the proceedings commencing before me today.  In his evidence Mr V said variously:-

   (a)that the child was aware of the pass alert preventing her from leaving the country which she quaintly referred to as “the red alert”;

   (b)that she indicated it had proved to be a hindrance in the past;

   (c)that she wanted it removed;

   (d)that in exercising the opportunity to go to Canada last year she and her mother had been prohibited for a period of some 36 hours whilst they tried to leave the country;

   (e)that she greatly enjoys her attendance at L School and is particularly interested in mathematics;

   (f)that she wants to be an early childhood teacher, that having been a long held ambition;

   (g)that she has a half sister who is 5 years of age and who also resides in Darwin and who she sees regularly;

   (h)that she has not had any contact with her father since February 2007 and quite frankly did not expect to see him again.

7. In all of the circumstances, I am satisfied that it would represent the child’s best interests to be able to undertake this trip with her mother and to see, regrettably possibly for the last time, her maternal grandmother who resides in Canada.

8. I am further satisfied that the mother and the child will return to reside in Darwin and resume their well ordered lives here.  I note further that the mother owns property here and I am thus left in no doubt that the Orders made on 19 March 2001 ought to be discharged to enable the mother and the child to travel freely and independently as they wish. 

9. At my invitation the mother indicated that she would feel more comfortable if the prohibition on the father from removing the child from either the Northern Territory or the country were left in place.

I certify that the preceding nine (9) paragraphs are a true copy of the Ex tempore reasons for Judgment of the Honourable Justice Burr.

Associate: 

Date:  15 June 2009