Irvine and Irvine (No 2) - [2019] FamCA 855

FAMILY COURT OF AUSTRALIA

IRVINE & IRVINE (NO. 2)

[2019] FamCA 855

FAMILY LAW – PARENTING – Where the parties are unable to agree upon the meaning and effect of certain parenting orders in the first reasons – Where there are three issues of dispute between the parties – Where there is no error in order 6(f) of the first reasons – Where the court is not satisfied that the words “preparatory schooling” should be restricted to preparatory schooling within the German system – Where the mother is at liberty to spend seven weeks with the child in Germany from December 2019 – Where order 8 does not prohibit the mother from travelling to Germany with the child for a six month period in 2020 – Order releasing the child’s passports to the mother who is to provide them to the father for the purpose of international travel.

Family Law Act 1975 (Cth) s 69ZN

Arthurman & Arthurman [2019] FamCAFC 214
Irvine & Irvine [2019] FamCA 627
Rand & Rand (2010) FLC 93-444

APPLICANT:

Ms Irvine

RESPONDENT:

Mr Irvine

INDEPENDENT CHILDREN’S LAWYER:

Mr Newman

FILE NUMBER:

TVC

1322

2017

DATE DELIVERED:

20 November 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

6 November 2019

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Legal Aid Queensland

COUNSEL FOR THE RESPONDENT:

Mr Raeburn

SOLICITORS FOR THE RESPONDENT:

BJM Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Newman Family Law

Orders

That the Final Orders made by Justice Tree on 6 September 2019 be varied so that the following is inserted below in Order 9 thereof:

Passports/International Travel

9A.That the child’s passports, currently held in the Townsville Registry of the Family Court of Australia, be released to the mother forthwith and the mother thereafter hold the passports subject to the terms of these orders.
9B. That the parents do all acts and things as may be necessary to renew the child’s passports (Australian and German) from time to time.
9C. If either parent fails to do any such act or thing to renew the child’s Australian passport then pursuant to Section 11 of the Australian Passports Act 2005 (Cth) the Minister of the Department of Foreign Affairs and Trade forthwith issue an Australian passport in the name of the child, X, born … 2016 and renew the said child’s passport upon either parents application, without the necessity of obtaining the consent of the other parent for that purpose.
9D. That either parent be permitted to travel internationally with the child to Hague Convention Countries or such other countries agreed between the parents in writing (with the parent’s consent not to be unreasonably withheld) and/or pursuant to an Order of this Court, during times that the child is in their care pursuant to these orders and in that respect:
(a)the parent proposing to travel internationally with the child must provide the other parent not less than 60 days’ notice in writing prior to departure (whether from the Commonwealth of Australia or…

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.

Continue reading Irvine and Irvine (No 2)

Details

AGLC: Irvine and Irvine (No 2) [2019] FamCA 855
Case: [2019] FamCA 855
Decision Date: 20 November 2019

CaseChat Overview and Summary

In *Irvine and Irvine (No 2)*, Justice Tree of the Family Court of Australia considered an application by the mother to vary existing Final Orders concerning the passports and international travel of the child. The dispute centred on how the child's passports should be managed and the conditions under which international travel with the child would be permitted.

The court was required to determine whether to vary the existing Final Orders to include specific provisions regarding the release and holding of the child's Australian and German passports, the renewal of these passports, and the conditions for international travel with the child. This included establishing notice periods, information requirements for the non-travelling parent, and the process for passport handover and return.

Justice Tree reasoned that it was in the child's best interests to have their passports managed in a way that facilitated necessary international travel while ensuring the other parent was adequately informed and protected. The court applied principles of child welfare and parental responsibility, incorporating provisions from the *Australian Passports Act 2005* (Cth) to ensure the child's Australian passport could be issued or renewed even if one parent failed to cooperate. The court also established a detailed framework for international travel, balancing the rights of both parents and the child's need for stability and connection.

The court ordered that the Final Orders made on 6 September 2019 be varied to include new orders (9A to 9E) detailing the management of the child's passports and the conditions for international travel. The mother's Amended Initiating Application was otherwise dismissed.

Orders

Orders of the court

That the Final Orders made by Justice Tree on 6 September 2019 be varied so that the following is inserted below in Order 9 thereof:

Passports/International Travel

9A. That the child’s passports, currently held in the Townsville Registry of the Family Court of Australia, be released to the mother forthwith and the mother thereafter hold the passports subject to the terms of these orders.

9B. That the parents do all acts and things as may be necessary to renew the child’s passports (Australian and German) from time to time.

9C. If either parent fails to do any such act or thing to renew the child’s Australian passport then pursuant to Section 11 of the Australian Passports Act 2005 (Cth) the Minister of the Department of Foreign Affairs and Trade forthwith issue an Australian passport in the name of the child, X, born … 2016 and renew the said child’s passport upon either parents application, without the necessity of obtaining the consent of the other parent for that purpose.

9D. That either parent be permitted to travel internationally with the child to Hague Convention Countries or such other countries agreed between the parents in writing (with the parent’s consent not to be unreasonably withheld) and/or pursuant to an Order of this Court, during times that the child is in their care pursuant to these orders and in that respect:

(a) the parent proposing to travel internationally with the child must provide the other parent not less than 60 days’ notice in writing prior to departure (whether from the Commonwealth of Australia or from Germany during time provided for in Orders 6 and 8 hereof) and the travelling parent must also provide to the other parent:

(i) a copy of the itinerary – including travel details (flights/method of travel) and dates and locations where the child will be residing during such period of travel;

(ii) evidence of return tickets;

(iii) a contact number whilst the child is overseas so that the travelling parent can facilitate a call to the child once a week whilst overseas or at all times as the child reasonably requests.

9E. That the child’s passports be utilised for the purpose of such international travel as follows:

(a) the father provide a written request for the release of the child’s passports at the time of the notice provided for in Order 9D above;

(b) the mother must release the child’s passports to the father not less than fourteen (14) days prior to the intended departure;

(c) the father must return the child’s passports to the mother within 3 days of returning to Australia (or to Germany in relation to the period of time provided for in Order 8).

The mother’s Amended Initiating Application filed 24 September 2019 is otherwise dismissed.

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

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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