Friswell and Knowles
[2016] FCCA 976
•19 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRISWELL & KNOWLES | [2016] FCCA 976 |
| Catchwords: FAMILY LAW – Children – overseas travel – passport – Australian passport – issue of Australian passport – where one parent does not consent to reissue of passport – proposed holiday in (country omitted) with father – where child has travelled to (country omitted) for a holiday on three previous occasions – where child normally resides with father – best interests of child considered. |
| Legislation: Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.60CA, 65Y |
| Cases cited: Friswell & Child Support Registrar [2016] FCCA 869 |
| Applicant: | MS FRISWELL |
| Respondent: | MR KNOWLES |
| File Number: | WOC 521 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2016 |
REPRESENTATION
| Applicant: | No appearance |
| Respondent: | In person |
ORDERS
UNTIL FURTHER ORDER the Father, Mr Knowles, is permitted to take the child X born (omitted) 2002 out of Australia to a place outside Australia namely (country omitted) in accordance with s.65Y(2)(b) of the Family Law Act 1975.
The Father must return the child to Australia no later than 20 June 2016.
The child X born (omitted) 2002 is permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Father is permitted to apply for the issue of an Australian passport to the said child X under the provisions of s.11(4)(b) of the Australian Passports Act 2005 without the necessity for the consent of the Mother.
The Application in a Case filed by the Respondent on 1 July 2015 is dismissed.
The Application in a Case filed by the Respondent on 21 August 2015 is dismissed.
The Application is otherwise adjourned to Tuesday 17 May 2016 for mention only at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Friswell & Knowles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 521 of 2007
| MS FRISWELL |
Applicant
And
| MR KNOWLES |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an Application in a Case which was brought by the Mother. Curiously, the Mother chose to commence these proceedings by means of an Application in a Case rather than an Application Initiating Proceedings. There were on foot, at the time she commenced these proceedings, other proceedings between the applicant and the Child Support Registrar. These proceedings, however, were brought by the Applicant against the Respondent, who is the Father of the parties’ child, X. Notwithstanding the fact that there were ongoing proceedings against the Child Support Registrar, it would appear to me, as I said, that a more appropriate application would be an Application Initiating Proceedings.
The Applicant herself has not attended Court today. She has been unable to do so as I am told that she is currently involved in litigation in another court in respect of two other children. That litigation will continue for several more weeks. However, I have handed down a decision in respect of the proceedings against the Child Support Registrar[1], and the proceedings against the Father were also listed today.
[1] [2016] FCCA 869
The Father has sought that the Court should proceed with a part of these proceedings although he concedes that the proceedings cannot be finalised today in the absence of the Applicant. The orders that the mother seeks are these:
1. The Respondent comply with the consent orders confirmed by Magistrate Orchiston of the court dated 22nd May 2009;
2. The Respondent or any other person be restrained from removing the child X born (omitted) 2002 from Australia.
It would appear that if the Applicant is of the view that the Respondent has failed to comply with parenting orders made by consent before her Honour Federal Magistrate Orchiston in May of 2009 that the appropriate vehicle would have been an Application - Contravention. I would be reluctant, however, to dismiss the Application today for an error in form without giving the Applicant an opportunity to be heard on that issue.
The Father, however, has raised the question of the application to restrain him from removing the child from Australia. He has filed a Response to an Application in a Case. In that response, he indicates that not only does he oppose the Application in its entirety but he seeks a variation of the consent orders made providing that the Mother should have supervised contact with the child. He seeks an order which is relevant to today’s proceedings that the child X be allowed to continue to travel on overseas holidays when he wishes to, unrestrained. And he also seeks an order for costs.
The Father has filed two Applications in a Case, one on 1st July; the other on 21st August 2015. They are, with respect, of no real consequence and need not proceed past today. It is the application by the Mother that the child should not be taken out of Australia that causes the Father some concern. Her application is supported by an affidavit which deals with a variety of matters but, on my reading of it, gives little or no reason why the child should not be permitted to travel out of Australia for the purpose of a holiday.
The Father has supported his Response to an Application in a Case with an affidavit pointing out that the child has travelled out of Australia with him and with his current wife for holidays in (country omitted) on several occasions over the last three years. The Father’s current wife is of (nationality omitted) birth and still has extended family living in that country. It is the family’s practice to travel each year for a holiday in (country omitted), not only so that the child’s step-mother can see her family but so that he too can see his mother’s side of the family.
On this occasion, the Father proposes to take the child out of the country between 28th May and 20th June. One difficulty that he has is that the child’s passport is due to expire in June. Obviously the child will not be able to travel in May and June on that passport, so the Father needs to apply for a new passport. At this stage, the Mother has not consented to the issue of a passport and has certainly not filed any application for the renewal of the passport. There is a degree of urgency about this matter.
Consideration
Clearly, the Court needs to consider the best interests of the child. On the face of it, as the child now has a step-mother who has extended family in (country omitted), it would appear to be in his best interests that he does spend time with those people. Travel also can be a beneficial experience for a child. It is significant that he has travelled to (country omitted) on several occasions before with his father and has always returned to Australia.
I have taken brief evidence from the Father. It is quite clear that his ties are in this country. He has a home here. He has permanent employment here in Australia. There would certainly be no benefit to him in remaining out of Australia and attempting to set up home and seek employment in (country omitted). I cannot see anything in the evidence that raises any concern whatsoever that the Father would not return the child to Australia at the conclusion of this proposed holiday.
It makes it difficult, however, for the Father to obtain a passport if the Mother is just not cooperating. The child lives with the Father. The child has lived with the Father for a considerable number of years. Certainly the consent orders of 22nd May 2009 provided that the child should live with the Father. The child goes to school in the area. He is now at high school.
In my view, the evidence before the Court points strongly towards it being in the best interests of this boy to be able to travel with his father and stepmother to (country omitted) for a holiday as he has done on several occasions before in past years. Why, one might ask rhetorically, would this time be any different? It is obviously in this child’s best interests to have a passport. He is an Australian citizen. Prima facie, an Australian citizen has the right to an Australian passport. There may be reasons why a child should not have a passport, and if there were some risk that the child would not be returned to Australia if allowed to travel out of Australia, then that may be a reason. But on the evidence, I cannot see any such risk.
I propose to make orders permitting the Father to remove the child out of Australia for the purpose of travelling to (country omitted). I will require him to return the child to Australia no later than 20th June. I will make an order permitting the Father to apply for a passport without the necessity of the Mother’s consent. Of the two Applications in a Case brought by the Father, it appears to me that as they serve no further purpose they should both be dismissed.
The issue by the Mother in apparently seeking to enforce the earlier parenting orders and by the Father seeking to vary them should be adjourned to a date when the Mother is able to attend Court. I understand that she will be involved in this other litigation for some period of time, so I will allow this matter to be adjourned to a date after that litigation has concluded but before the father and the child travel to (country omitted). I propose to adjourn that matter to 17th May 2016.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 27 April 2016
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