HATHAWAY & DURR

[2014] FamCA 1234

FAMILY COURT OF AUSTRALIA

HATHAWAY & DURR [2014] FamCA 1234

FAMILY LAW – CHILDREN – Application by mother seeking permission for international travel and to obtain passports for children – Orders by consent

Family Law Act 1975 (Cth)

APPLICANT: Ms Hathaway

RESPONDENT: Ms Durr

FILE NUMBER: SYC 7173 of 2014

DATE DELIVERED: 15 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 15 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barkus

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Ms Van Meer

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission Of Tasmania

Orders

1. BY CONSENT orders be made in accordance with the minute of consent order signed by the parties, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”, with the variation of order 5 to change from 17 January to 18 January 2015.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED

1. The solicitors for the applicant mother forward to my associate an electronic word version of the minute of order by the close of business today.

2. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

3. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hathaway & Durr 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 SYDNEY

FILE NUMBER: SYC 7173 of 2014

Ms Hathaway

Applicant

And

Ms Durr

Respondent

REASONS FOR JUDGMENT

1. On 14 November 2014, Ms Hathaway (‘the mother’) commenced proceedings in this Court seeking substantive parenting orders which will no doubt be dealt with in the fullness of time in one form or another in the Court.  She sought interim orders in relation to permission to obtain passport for the two children of the parties’ relationship, B, aged five and C, aged four. 

2. It seems from the documents and it is not in issue that the father is aged 45.  The mother is aged 35.  The parties have until recently lived in Tasmania.  There is a history of violence by the father to the mother, although the extent and full nature of that violence is, it seems, at least in part in issue although, the father concedes some level of violence.  In August 2014, the parties separated and the mother has relocated to Sydney with the children. 

3. There is no application for the return of the mother from Sydney to Tasmania.  There also appears to be no issue that the mother has and continues to be the primary carer of these children.  The issues between the parties appear to be the question of parental responsibility and the time that the father spends with the children.  That is clear from the father’s response which was filed on 15 December 2014. 

4. In September 2014, arrangements were made for the children to travel on a holiday to City D, Country E from either 9 January to 17 or 18 January 2015.  These arrangements were made in the absence of any interaction between the mother and the father, but the father was informed of the arrangements soon after when the mother asked for his permission to take the children out of the country and his permission to obtain passports for the children.  The parties have engaged in negotiations since that time but have been unable to resolve the impasse between them. 

5. The father is not enamoured by the mother’s decision to take the children to City D on a holiday but is content for them to go and for the passport to issue subject to some conditions.  These include that the passport presumably be held by the Registrar of the Court other than for the purpose of the trip, that the mother pay a significant bond and that there be some telephone calls or other contact arrangements over that period of time.  The father’s case seems to be that because the mother had moved to Sydney in a unilateral way and because she made the decision to take the children to City D in a unilateral way, there is a realistic possibility that she will go to City D and remain there with the children for the indefinite future. 

6. The evidence of the mother is that she has significant and primary ties in Australia and those ties have been lifelong, to say the least.  The mother is supported by a government pension and partly by her father and there is no evidence that she can afford to live overseas.  The holiday is for a short period to a well-known and apparently popular holiday place for Australians.  The relationship between the father and the children will not be in any meaningful or any effective way changed by that period of eight days in City D. 

7. The effect of the bond or deposit or guarantee sought by the father would essentially mean, on the mother’s evidence that the mother and children could not travel on this trip.  Much of the submissions made on behalf of the father seem to be that this ought to be part of an overall consideration of the parenting arrangements between the parties and criticism of the mother for not engaging in a broader mediation concept as sought by him.

8. Given the material before me and having considered the written submissions on behalf of the mother and the oral submissions on behalf of the father, there seems little reason to prevent the children from travelling overseas.  

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 December 2014.

Associate:     

Date:              15 December 2014