HANKS & CAIN

[2012] FamCA 692

FAMILY COURT OF AUSTRALIA

HANKS & CAIN [2012] FamCA 692

FAMILY LAW – CHILDREN – Ex parte application to discharge an order restraining the child from leaving the Commonwealth of Australia.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hanks

RESPONDENT: Mr Cains

FILE NUMBER: MLC 5035 of 2009

DATE DELIVERED: 31 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 31 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Vines

SOLICITOR FOR THE APPLICANT: Vines Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. Paragraph 6 of the order made 12 September 2002 be and is hereby discharged.

IT IS REQUESTED THAT

1. The Australian Federal Police remove the name of the child V born … January 2002 from the Airport Watch List at all points of international arrivals and departures in Australia.

2. The Court forward a copy of the order to the appropriate Officer at the Australian Federal Police.

3. The applicant mother and her parents be permitted to remove the said child from the Commonwealth of Australia.

4. The applicant mother’s Initiating Application filed 17 May 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanks & Cain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5035 of 2009

Ms Hanks

Applicant

And

Mr Cain

Respondent

REASONS FOR JUDGMENT

1. I have before me today the Initiating Application of the wife filed 17 May 2012 in which she seeks an order discharging a previous order of the Court made on 12 September 2002, in which both the husband and wife, by themselves, their servants or agents, were restrained from removing or attempting to remove or causing or permitting removal of the child, V born in January 2002, from the Commonwealth of Australia.  That was an order made by Registrar Wilson. 

2. The parties in this matter were married in 2001 and divorced on 29 May 2003.  V is the only child of the marriage.  The order restraining the parties from leaving the Commonwealth was varied on 12 September 2003 to the extent that provision was made to allow the wife to travel to the United Kingdom with the child for a particular occasion, and also that she be permitted to travel every second year, the restriction being that the time she was permitted to travel for was limited to four weeks on each occasion.  In support of her application this day, the wife has filed an affidavit in which she deposes that the last occasion of contact between the child and her father was on 10 January 2010.

3. That on that date, the child was dropped off in the morning at her father’s house in a suburb of Geelong, for an overnight visit, but that between 4.00 pm and 5.00 pm that afternoon, the father telephoned the mother saying that the child wouldn’t stop crying and that he was bringing her home.  She then heard nothing from him until the Easter weekend of 2010.  And at that time, he asked to spend time with the child on the Anzac Day weekend as he was attending his cousin’s child’s christening.  However, after the child spoke to the father, that did not occur.

4. As a consequence of the telephone conversation between the child and her father, he said words to the effect that he wished that the child would make up her mind about seeing him so that he could get on with his life.  The next contact the mother had from the father was when she received a text message wishing the child a happy birthday in January 2011.  Since receiving that text message, the mother has had no contact with the father, nor has he contacted the child.  The mother has arranged for her parents, who live in the United Kingdom, to travel to Australia later this year, and for the child to return to the United Kingdom with them for a period of approximately five weeks.

5. She intends to also travel to the United Kingdom and will return with the child later in January.  Clearly, the mother doesn’t know where the father is.  If she were to have to make arrangements with him to travel overseas with the child, that would be impossible.  In all of the circumstances, the husband has been served in accordance with the order for substituted service made by Registrar Moser on 14 June 2012.  He has not appearred today.  He has not filed any material, and on that basis the matter can proceed on an undefended basis. 

6. In all the circumstances, I am satisfied that it is appropriate to discharge the order which restricts the mother from travelling, or leaving the Commonwealth of Australia with the child for any specific period of time, and that she should be free to travel without having to either obtain the consent of the father or an order of this Court and I will order accordingly.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 31 July 2012.

Associate: 

Date:  20 August 2012