Gande and Dennison

[2007] FamCA 1566

FAMILY COURT OF AUSTRALIA

GANDE & DENNISON [2007] FamCA 1566

FAMILY LAW – CHILDREN – Passport – Application to issue passport

Family Law Act 1975 (Cth)

APPLICANT: Ms Gande

RESPONDENT: Mr Dennison

FILE NUMBER: MLC 12522 of 2007

DATE DELIVERED: 5 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 December 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That in the event that the mother is absent from Victoria during the first week of 2008 the father spend time with the children L born … April 1999, B born … February 2001 and T born … February 2003 from 5pm on 20 January 2008 to 5pm on 27 January 2008. 

2. THE COURT BEING SATISFIED that it is in the best interests of the children L born … April 1999, B born … February 2001 and T born … February 2003 that the mother, Ms Gande attend a post separation parenting program comprised of counselling or the teaching of techniques to assist her to resolve problems with the father which would otherwise adversely affect her carrying out her parenting responsibilities, IT IS ORDERED that pursuant to section 65LA(1) of the Family Law Act 1975, the mother shall within 7 working days of this order make contact with Life Works, … the parenting program provider and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.

3. That notwithstanding anything contained in paragraph 3 of the Orders made

   
   

   4 July 2006, in the event that the mother notifies the father in writing by

   
   

   1 November 2008 that she proposes to take the children to New Zealand in the Christmas of 2008 she be permitted to do so for a period of 5 weeks to return

   
   

   9 days prior to the commencement school in 2009 and in the event that the wife does in fact take the children to New Zealand any time that the father would have otherwise been entitled to spend with the children pursuant to the said Order be suspended and he have time with the children from 5pm on the 9^th day prior to the commencement of school to 5pm on the second day prior to the commencement of school in 2009. 

4. That in the event that the father has not executed a passport application for each child by 12 December 2007 there be liberty to have the matter mentioned to me by Friday 14 December 2007. 

5. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12522 of 2007

MS GANDE  

Applicant

And

MR DENNISON  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. The matter comes before me in the judicial duty list.  It is the return date of the mother's application that the husband sign passport forms and that, the father pay the difference in the airfares as between the dates when the mother originally requested the father to sign the application for the passport and the present.  The difference amounts to something more than $2,000.  In the alternative, if the father does not pay the difference on the airfare as above that the existing orders dated 4 July 2006 be varied to permit the mother to take the children to New Zealand for the Christmas vacation commencing 2008 for a period of five weeks. 

2. The father cross-applied by a response filed on 30 November 2007 and in that he sought both that, "All matters and requests pertaining to the children be documented in the communication journal and such further or other orders as this honourable court deems appropriate, and costs."

3. Each parent is self represented.

4. Earlier today, I sent the parties to a joint mediation conference between Registrar Sikiotis and a family consultant Mr N.  It appears that during that conference, agreement was reached as to the father signing the passport application, that much the father said he would do in his documents which were filed on 30 November 2007.  The matters that remain in issue between the parties were specification of the dates that the father would have the children in the event that the mother goes to New Zealand with the children this Christmas, and whether the father ought to pay the mother the sum of $2842 or thereabouts being the increased cost of airfares that she would have to meet if she'd bought tickets for the children now to travel to New Zealand this Christmas. 

5. The mother is the primary carer of the children, the father has a liability to pay child support.  It appears that for whatever reason the Child Support Agency might have recorded a lower figure for the father’s income than the income he actually receives.  He has advised me today from the bar table that he works in Sales, has done so for five months, gets $900 a week gross, that is about $46,500 per year and he is paying about $180 per week child support.  It seems that there must be some arrears because he says that he has negotiated with the Child Support Agency for his next tax return to be taken by the Agency.  It seems to me that the Agency would have done that in the event that the father is in arrears. 

6. I will not recite here our discussions.  It is sufficient for me to order a transcript of part of the proceedings.  In due course, the transcript may be helpful to the Child Support Agency in assessing the father's income. 

7. What the mother seeks is essentially damages for the loss of her opportunity to buy airfares earlier than now.  I have some sympathy with the predicament in which she now finds herself.  However, I am unable to be satisfied that I have a power to order that the father pay the monies she seeks.  If the application was differently framed, perhaps the power to do so could be found in the court’s child support jurisdiction.  However, there is no such application.  

8. So in the circumstances of this case whilst I think it is most regrettable that the mother will face the extra expense I am not going to make any order which ameliorates that expense. 

9. The mother has said that there is some doubt as to whether or not she can join her parents in New Zealand.  Her parents are flying from London and it would be a pity for the children to miss out on seeing their maternal grandparents.  She wants the option to go next year as well as this year.  In discussion, the father has said that he is prepared to extend that option to her.  An additional parenting order that I will make will vary the parenting orders to provide that in the event that the mother wishes to travel to New Zealand in the Christmas of 2008-2009, the mother provide the father with notice to that effect by 1 November 2007.  If she does so, she will be able to travel for five weeks.  

   
   

   I have discussed with the parties the dates on which the father’s time with the children will commence if they go to New Zealand in 2008. 

10. The applications are otherwise dismissed. 

11. In the event that the father has not executed a passport application for each child by 12 December 2007 there be liberty to have the matter mentioned to me by Friday 14 December 2007. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  15 January 2008