HARTNETT & SAMPSON - [2014] FCCA 100

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARTNETT & SAMPSON

[2014] FCCA 100

Catchwords:
FAMILY LAW – Children – passport – issue of Australian passports – Family Law Watch List – whether names of children should be removed from Watch List – whether children should be issued passports – overseas travel – whether children should be permitted to travel out of Australia.

PRACTICE & PROCEDURE – Family Law Rules 2004 do not apply in the Federal Circuit Court.

Legislation:

Australian Passports Act 2005 (Cth), ss.3, 11

Child Support (Assessment) Act 1989 (Cth), ss.3, 4

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65Y, 67ZD, 106A

Federal Circuit Court of Australia Act 1999 (Cth), s.62
Family Law Rules 2004

Federal Circuit Court Rules 2001, r.6.19

Busch & O’Shea [2013] FamCA 461
Kuebler & Kuebler (1978) FLC 90-434
Thomason & Malhotra [2010] FamCAFC 85

Applicant:

MR HARTNETT

Respondent:

MS SAMPSON

File Number:

SYC 526 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

9 and 17 January 2014

Date of Last Submission:

17 January 2014

Delivered at:

Sydney

Delivered on:

24 January 2014

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondents:

Mr de Robillard

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

Order (4) made by the Family Court of Australia 4 May 2007 restraining the parties from removing or causing or permitting the removal of the children X (a female) born (omitted) 2003 and Y (a male) born (omitted) 2004 from the Commonwealth of Australia and directing the Australian Federal Police to place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia is discharged.
The Australian Federal Police are to remove the names of the children X (a female) born (omitted) 2003 and Y (a male) born (omitted) 2004 from the Family Law Watch List in force at all points of arrival and departure from Australia forthwith.
The children X born (omitted) 2003 and Y born (omitted) 2004 are permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 subject to compliance with Order (4) and for this purpose the Applicant father is permitted to apply for the issue of Australian passports for the children X and Y.
The parties are each permitted to take the children X and Y out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975 PROVIDED THAT the parent wishing to travel with the children gives the other parent at least four (4) weeks’ prior written notice of the intended travel out of Australia specifying:
(a)The dates and times of departure and return;
(b)The means of transport and all details of the airline or shipping company with which the parent will be travelling with the children;
(c)The intended destination;
(d)Contact numbers and addresses for the children for the duration of the period when the children will be out of Australia; and
(e)Flight numbers and times if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HARTNETT & SAMPSON [2014] FCCA 100
Case: [2014] FCCA 100
Decision Date: 24 January 2014

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Scarlett considered an application concerning the children X and Y. The dispute involved whether the children's names should be removed from the Family Law Watch List, whether they should be issued Australian passports, and whether they should be permitted to travel overseas.

The court was required to determine the legal issues surrounding the removal of the children's names from the Airport Watch List, the subsequent issuance of Australian passports, and the conditions under which the children could travel internationally. The court also noted that the Family Law Rules 2004 do not apply in the Federal Circuit Court.

Judge Scarlett discharged a previous order made by the Family Court of Australia that had restrained the parties from removing the children from Australia and directed their placement on the Airport Watch List. The court ordered the Australian Federal Police to remove the children's names from the Family Law Watch List. Furthermore, the court permitted the children to travel internationally, subject to compliance with specific notice requirements, and authorised the father to apply for their Australian passports. The parties were each permitted to take the children out of Australia provided they gave the other parent at least four weeks' prior written notice detailing the travel arrangements, destination, and contact information.

Orders

Orders of the court

Order (4) made by the Family Court of Australia 4 May 2007 restraining the parties from removing or causing or permitting the removal of the children X (a female) born (omitted) 2003 and Y (a male) born (omitted) 2004 from the Commonwealth of Australia and directing the Australian Federal Police to place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia is discharged.

The Australian Federal Police are to remove the names of the children X (a female) born (omitted) 2003 and Y (a male) born (omitted) 2004 from the Family Law Watch List in force at all points of arrival and departure from Australia forthwith.

The children X born (omitted) 2003 and Y born (omitted) 2004 are permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 subject to compliance with Order (4) and for this purpose the Applicant father is permitted to apply for the issue of Australian passports for the children X and Y.

The parties are each permitted to take the children X and Y out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975 PROVIDED THAT the parent wishing to travel with the children gives the other parent at least four (4) weeks’ prior written notice of the intended travel out of Australia specifying:

(a) The dates and times of departure and return;

(b) The means of transport and all details of the airline or shipping company with which the parent will be travelling with the children;

(d) Contact numbers and addresses for the children for the duration of the period when the children will be out of Australia; and

(e) Flight numbers and times if the proposed travel is by air.

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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