Harshani and Darnith

[2018] FamCA 952

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH [2018] FamCA 952

FAMILY LAW – PRACTICE AND PROCEDURE – Leave application – pursuant to final orders the parties are required to seek leave to initiate further proceedings – where the father seeks to make an application in relation to a child’s passport and to travel internationally with the child – where there have been no other applications filed since the final orders – where the issue sought to be litigated is limited – leave granted to the father to initiate proceedings in relation to the passport and international travel.

Family Law Act 1975 (Cth) s 68B

APPLICANT: Mr Harshani

RESPONDENT: Ms Darnith

FILE NUMBER: MLC 1556 of 2010

DATE DELIVERED: 21 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 14 November 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance Required

Orders

(1)That the father have leave to file an Application in a Case seeking orders that:-

(a)The mother sign all documents necessary for the issue of a passport in the name of the child; and

(b)The father be permitted to travel with the child to Country B and Country N during the 2018/2019 long summer holiday period.

(2)That the father’s Application in a Case filed 21 September 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1556 of 2010

Mr Harshani

Applicant

And

Ms Darnith

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 21 September 2018 the applicant, Mr Harshani seeks leave to commence proceedings seeking permission for him to travel overseas with the parties’ child, G (the child) during the summer holiday period.

2. The father requires leave of the Court to bring that application as a result of final orders made by consent on 25 July 2016 by Macmillan J (“Final Orders”).  Paragraph 11 of the Final Orders provides as follows:-

   Each of the father and the mother be and are hereby restrained from instituting any further proceedings without first having filed an application in a case (such application not be served upon the other party) seeking leave to institute proceedings together with an affidavit setting out:

   (a)The occasions on which the applicant has previously sought leave; and

   (b)Disclosing all relevant facts about the application whether supporting or adverse to the application which are known to the applicant.

3. At the time that order was made, the child was aged almost eight years.  G is the only child of the parties and had been the subject of litigation for the preceding six years.  He is now aged almost ten years.

4. In addition to the orders made restraining the applicant and respondent from issuing proceedings without leave of the Court, orders were made that provided:-

   ·That the mother have sole parental responsibility for the child;

   ·That the child live with the mother;

   ·That the child spend time with the father during school term each alternate weekend from after school Friday to the commencement of school Monday and for specified periods during term holidays and the long summer holiday periods.

5. Order 12 of the Final Orders restrained the mother and the father from removing the child from the Commonwealth of Australia and orders were made that the child be placed on the Airport Watch List. 

6. In support of his application the father relies upon the following documents:-

   ·Application in a Case filed 21 September 2018;

   ·Affidavit of the father filed 21 September 2018.

7. As is provided pursuant to order 11 of the final orders, the father’s application has not been served on the mother.  The matter was heard by me in a Judicial Duty List.  The father represented himself and there was no appearance by the mother. 

Discussion

1. In his affidavit filed 21 September 2018, the father deposes that he originally filed an Initiating Application and supporting documents on 28 February 2018 in the “Family Court at Dandenong” in which he sought orders permitting him to travel with the child.  Those documents were returned to him by Registry staff due to the requirement that he file an Application in a Case seeking leave pursuant to paragraph 11 of the final orders.  Otherwise, the father deposes that he has not initiated any other application since the Final Orders were made in July 2016.

2. The father deposes that he seeks leave to commence proceedings to enable him to travel to Country B and Country N with the child during the long summer vacation period in December 2018.  The purpose of the proposed travel is to enable the child to spend time with members of the paternal family in Country B. 

3. The Final Orders provide that the father spend one half of the long summer vacation period with the child.  The father proposes that the travel occur during that period.

4. The father also deposes that he has written to the mother seeking her consent to enable an application for a passport to be made and to enable the father to travel overseas with the child.  The father deposes that in her response dated 18 October 2017 the mother refused to provide her consent to the passport application or to permit the father to travel with the child.

5. The orders restraining the commencement of further proceedings were made against a backdrop of litigation between the parties that had endured for a period of approximately six years.  The Court documents with respect to that dispute are contained in 13 folios.

6. Order 11 of the Final Orders would appear to be an injunction made pursuant to s 68B(2) of the Family Law Act 1975 (“the Act”). Sections 68B(2) and (3) of the Act provide:-

   (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

7. The issue for determination is what criteria should be applied by the Court in determining whether leave should be granted to institute proceedings, particularly in circumstances where such order has been made by consent and without the benefit of Reasons for Judgment to inform the Court as to the basis for that order.

8. Having regard to the protracted nature of the earlier proceedings that concluded in July 2016, it seems likely that the injunction was consented to by both parties to ensure that the child was protected from the deleterious impact of further drawn out litigation.

9. The application sought to be agitated by the father is a discrete issue which is capable of determination in either the Senior Registrar’s List or a Judicial Duty List.  I am satisfied that the determination of that issue is unlikely to give rise to prolonged proceedings such as endured between the parties in the earlier proceedings.  In circumstances where there have been no other applications filed since the Final Orders were made and where the issue sought to be litigated is limited to the question of whether the child should be permitted to travel overseas with the father during holiday periods, I am satisfied that the father should have leave to institute those proceedings.

10. This does not mean that I am making any determination as to the merits of the father’s application.  Rather I am satisfied that he should have the opportunity to make such application provided that it is filed in the appropriate form with supporting evidence.

11. In the circumstances I propose to make orders as follows:-

    (1)That the father have leave to file an Application in a Case seeking orders that:-

    (a)The mother sign all documents necessary for the issue of a passport in the name of the child; and

    (b)The father be permitted to travel with the child to Country B and Country N during the 2018/2019 long summer holiday period.

    (2)That the father’s Application in a Case filed 21 September 2018 be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 November 2018.

Associate: 

Date:  21 November 2018