FAMILY COURT OF AUSTRALIA
| GIN & HING | [2010] FamCA 617 |
| FAMILY LAW – CHILDREN – International travel |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Kirkland and Granger [2007] FamCA 1471 Line & Line (1997) FLC 92-729 |
| APPLICANT: | Mr Gin |
| RESPONDENT: | Ms Hing |
| FILE NUMBER: | MLC | 4528 | of | 2010 |
| DATE DELIVERED: | 20 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 13 JULY 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Vohra |
| SOLICITOR FOR THE APPLICANT: | Schetzer Constantinou |
| COUNSEL FOR THE RESPONDENT: | Mr Weil |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
Orders
That to the extent that the following orders are inconsistent with paragraph 1 of the orders made 18 May 2010, that is, the order restraining the wife MS HING from removing the child R (who is referred to in that order as RB (female) born … March 2010) from the Commonwealth of Australia said paragraph 1 is suspended during the operation of these orders.
That the wife MS HING is permitted to remove the child from the Commonwealth of Australia for the purposes of travelling to China for a period of one week only on the following terms and conditions.
The wife’s departure from Australia with the child is subject to the following:
(a)No later than 7 days before the day of departure, the wife provide to the husband through his lawyers, copies of the travel itinerary including the addresses where she will be staying in China together with copies of return airline tickets; and
(b)No later than 7 days before the day of proposed departure from Australia, the wife confirm in writing to the solicitors for the husband that her grandfather in China is still alive and the details of any hospital/residence at which the grandfather is to be found to enable the husband and his family to make any necessary inquiries to confirm that fact.
To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the solicitors for the wife SCHETZER CONSTANTINOU provide to them on behalf of the wife, the following:
(a) a copy of these orders;
(b)a statement that they have been instructed that paragraph 3 of these orders has been fulfilled by the wife; and
(c)a letter indicating the precise time that the wife intends to depart Australia and return to Australia.
That the Court requests that the Australian Federal Police otherwise retain the name of R (who is referred to as RB (female) born … March 2010) on the Airport Watch List at all points of international arrivals and departures in Australia.
That the husband have liberty to apply on short notice to make an urgent application for the release of the trust funds resulting from the sale of the former matrimonial home if the wife has not returned the child to Australia within 24 hours of the scheduled date referred to in the itinerary of the wife.
That upon the wife returning to Australia…
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- Gin & Hing [2010] FamCA 617
- Case
- [2010] FamCA 617
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to permit the mother to remove the child from the Commonwealth of Australia to China, and if so, under what conditions. This involved balancing the mother's stated purpose for travel with the father's concerns for the child's safety and return. The court also considered the process for obtaining necessary travel documents for the child and the mother.
Justice Cronin reasoned that the mother should be permitted to travel with the child to China for a period of one week, suspending a prior order that restrained the child's removal from Australia. This permission was made subject to strict conditions designed to ensure the child's return and the father's ability to verify the mother's stated purpose for travel. These conditions included providing travel itineraries, proof of return tickets, and confirmation of the grandfather's status. The court also mandated the involvement of the Australian Federal Police and the wife's solicitors to ensure compliance, and retained the child's name on the Airport Watch List. Furthermore, the court ordered that both parents cooperate in obtaining the child's passport and visas, with provisions for the mother to proceed unilaterally if the father failed to cooperate. The court also made provisions for the release of trust funds if the child was not returned as scheduled and required the mother to notify the father upon their return.
Orders
Orders of the court
1.
That to the extent that the following orders are inconsistent with paragraph 1 of the orders made 18 May 2010, that is, the order restraining the wife MS HING from removing the child R (who is referred to in that order as RB (female) born … March 2010) from the Commonwealth of Australia said paragraph 1 is suspended during the operation of these orders.
2.
That the wife MS HING is permitted to remove the child from the Commonwealth of Australia for the purposes of travelling to China for a period of one week only on the following terms and conditions.
3.
The wife’s departure from Australia with the child is subject to the following:
(a) No later than 7 days before the day of departure, the wife provide to the husband through his lawyers, copies of the travel itinerary including the addresses where she will be staying in China together with copies of return airline tickets; and
(b) No later than 7 days before the day of proposed departure from Australia, the wife confirm in writing to the solicitors for the husband that her grandfather in China is still alive and the details of any hospital/residence at which the grandfather is to be found to enable the husband and his family to make any necessary inquiries to confirm that fact.
4.
To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the solicitors for the wife SCHETZER CONSTANTINOU provide to them on behalf of the wife, the following:
(a) a copy of these orders;
(b) a statement that they have been instructed that paragraph 3 of these orders has been fulfilled by the wife; and
(c) a letter indicating the precise time that the wife intends to depart Australia and return to Australia.
5.
That the Court requests that the Australian Federal Police otherwise retain the name of R (who is referred to as RB (female) born … March 2010) on the Airport Watch List at all points of international arrivals and departures in Australia.
6.
That the husband have liberty to apply on short notice to make an urgent application for the release of the trust funds resulting from the sale of the former matrimonial home if the wife has not returned the child to Australia within 24 hours of the scheduled date referred to in the itinerary of the wife.
7.
That upon the wife returning to Australia with the child, she shall immediately advise the husband of her return.
8.
That both MR GIN and MS HING forthwith do all acts necessary and sign all applications required to apply for a passport for R born … March 2010 but failing the joint application being completed by 4 pm on 23 July 2010, MS HING may make such application without first obtaining the consent of the child’s FATHER.
9.
That both MR GIN and MS HING forthwith do all acts necessary and sign all applications required to enable the Chinese Ambassador in Australia or his delegate to issue a visa for the wife and the child to visit China solely for the purposes of these orders and failing any required co-operation by the husband, MS HING may make such application without the consent of the child’s father.
10.
That the wife may provide a copy of these orders to the Australian Passports Office, the Australian Federal Police and the Chinese Ambassadorial staff to ensure the completion of these orders.
11.
That the application in a case be otherwise referred to Senior Registrar Fitzgibbon to complete any matters in the application before him.
12.
Pursuant to s.65DA(2)and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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