HANKS & CAIN

In the Family Court of Australia, Ms Hanks (the applicant mother) sought to discharge an order made on 12 September 2002, which had previously restrained both parents from removing their child, V, from the Commonwealth of Australia. The original order was made by Registrar Wilson. The respondent father, Mr Cains, did not appear at the hearing.

The primary legal issue before the court was whether the existing order restraining the child from leaving Australia should be discharged, given the circumstances presented by the applicant. This involved considering the extent to which the father had maintained contact with the child and the practical implications of the existing travel restrictions on the mother's ability to travel with the child.

Justice Macmillan reasoned that the father had had no contact with the child since January 2010, apart from a text message wishing the child a happy birthday in January 2011. The mother stated she did not know the father's whereabouts, making it impossible to obtain his consent for international travel. The court found that in these circumstances, it was appropriate to discharge the order that restricted the mother from travelling with the child. The court noted that the father had been served with the application via substituted service but had not filed any material or appeared.

Consequently, the court ordered the discharge of paragraph 6 of the 2002 order, permitting the applicant mother and her parents to remove the child from the Commonwealth of Australia. The Australian Federal Police were directed to remove the child's name from the Airport Watch List. The mother's Initiating Application was otherwise dismissed.