Harvey and Harvey

[2017] FamCA 1144

FAMILY COURT OF AUSTRALIA

HARVEY & HARVEY [2017] FamCA 1144

FAMILY LAW – CHILDREN – where the husband seeks the matter be urgently listed for hearing – where the husband’s application is sought to be made on an ex-parte basis – where the wife and children are intending to travel to Country H –where the husband seeks the children’s name be placed on the Airport Watch List – where the husband seeks an urgent order or injunction, granting a PACE alert for the protection and/or to prevent deportation of all three children – where the husband seeks that the children be placed on the Airport Watch List for a period of three months from the date of the application – husband’s application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 5.12, 5.12(b)

APPLICANT: Mr Harvey

RESPONDENT: Ms Harvey

FILE NUMBER: MLC 2362 of 2014

DATE DELIVERED: 22 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 22 December 2017

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No Appearance

Orders

1. That the husband’s Application in a Case filed 22 December 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 Harvey & Harvey 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 2362 of 2014

Mr Harvey

Applicant

And

Ms Harvey

Respondent

REASONS FOR JUDGMENT

1. The matter of Harvey comes before the Court today upon an Application in a Case and affidavit filed by the husband this day, and upon an abridgment of time by the Court Registrar.  The application before the Court seeks orders in the following terms:

   ·    That all times be abridged, and this application be urgently listed for hearing;

   ·    That the three children of the marriage be placed on the Australian Federal Police Family Law Watch List;

   ·    At paragraph 33, the husband seeks an urgent order or injunction, granting a PACE alert for the protection and/or to prevent deportation of all three children, and to place all three children on the watch list for a period of three months, from the date of the application.

2. The catalyst for the husband’s application is him becoming aware that the mother and the children are intending to travel to Country H, departing Australia on Monday 25 December 2017 with arrival in City J, with a booked return flight on Monday 8 January 2018.  The orders sought by the husband are sought on an ex-parte basis.

3. The matter was listed before me this morning at approximately 11.45am.  At that stage I indicated to the husband that it was my view that the application should be properly served on the wife, particularly so in circumstances where he has informed the Court that he has had notice of the wife’s proposed travel for at least 16 days.  Other than that, he says he has been unable to prepare his application until today.  There is no explanation as to why the matter has been left or the issue has not been raised by him until the last sitting day before the Christmas holiday period.  The wife has had no notice of the husband’s views about the intended travel.  She is unaware that he objects to that travel.

4. At the mention of the matter this morning I informed the husband of the requirements of r 5.12 of the Family Law Rules 2004 (Cth), as to the matters about which the Court must be satisfied if an ex-parte hearing was to be conducted. The matters set out in r 5.12(b) are largely absent from the affidavit filed by the husband in support of his application. The affidavit of the husband does not set out when the husband was given notice by the wife of the proposed travel, although as I have already noted, he indicates from the bar table that that notice was given earlier this month.

5. The proposed international travel is anticipated in the final orders that were made by consent between these parties on 30 November 2015.  Paragraph 13 of those orders provides that in the event that either party seeks to travel overseas with any of the children, he or she give the other parent no less than 30 days’ notice in writing, and provide the other parent:

   (a)A copy of the itinerary;

   (b)A copy of return ticket;

   (c)Proof that the children have received any and all necessary vaccinations at least seven days’ prior to the intended overseas travel;

   (d)Particulars of the places and contact numbers at which the children are staying (if applicable); and

   (e)A proposal for make-up time (if applicable).

6. It would appear from the affidavit filed by the husband that that information, as anticipated in the final orders, has been provided to him.  The husband complains that that notice was provided later than the 30 days anticipated.  The wife has not had an opportunity to respond to that allegation.  Given my concerns about dealing with the matter on an ex-parte basis, I adjourned the matter to 2.15pm to enable the husband the opportunity of serving his application and affidavit upon the wife, and giving her an opportunity to be heard in relation to the issues raised by him.

7. The hearing before me resumed at approximately 2.20pm.  The husband informed me that he had sent two text messages to the wife, had called her or attempted to telephone her without success.  He has also attended her workplace and been informed that she is not at her workplace today.  He has also attended her home address and the wife was not at her home address.  Accordingly, she has had no notice of this application, nor has she had any opportunity to respond to it.

8. This proceeding has a long history in my docket.  There is a high degree of animosity between the parties.  Currently, there are pending property applications which are nearing their conclusion.  Given the history of the matter I am not persuaded that the husband’s current application should be dealt with on an ex-parte basis.  I therefore dismiss the husband’s application filed 22 December 2017.

9. I should add that a significant aspect in my determination that the application should be dismissed is the fact that the husband has had more than two weeks’ notice of the proposed travel.  That he has left the filing of this application until the last possible day upon which the Court could deal with it prior to the anticipated travel, is most unsatisfactory.  It has deprived the wife of any opportunity to respond to that application, had she been served.  In those circumstances, I am satisfied that it would be inappropriate to deal with the application on an ex-parte basis.  There is little utility in the matter remaining in the list as the travel is anticipated to commence on Monday 25 December, with a return on 8 January 2018.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 December 2017.

Associate: 

Date:  22 December 2017