Jamison and Martin

[2014] FCCA 1775

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMISON & MARTIN [2014] FCCA 1775

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – application to vary earlier parenting orders – where father wishes to take the child out of Australia for a holiday in the United Kingdom – where father wishes to obtain passport for the child – where mother has not consented to application for a passport – best interests of the child – parental responsibility – sole parental responsibility.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60CA, 61DA, 61DB, 65Y

Cases cited:
Martin & Jamison [2011] FMCAfam 313

Applicant: MR JAMISON

Respondent: MS MARTIN

File Number: CRC 34 of 2010

Judgment of: Judge Scarlett

Hearing date: 9 July 2014

Date of Last Submission: 9 July 2014

Delivered at: Sydney

Delivered on: 9 July 2014

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

UNTIL FURTHER ORDER

1. Orders 2 and 11 made on 6 April 2011 are suspended.

2. The Applicant Father is to have sole parental responsibility for the Child [X] born [omitted] 1999.

3. The Father is permitted to take the Child [X] born [omitted] 1999 from Australia to a place outside Australia namely the United Kingdom for the purpose of a holiday.

4. The Father is authorised to do all acts and things and sign all documents necessary to enable the issue of an Australian passport to the Child [X] born [omitted] 1999 who is permitted to travel internationally.

5. The Father is to retain the child’s Australian passport in his possession.

6. The return date of 20 October 2014 is vacated.

7. The Application is adjourned to Tuesday 2 December 2014 for further mention at 10:00 am.  

IT IS NOTED that publication of this judgment under the pseudonym Jamison & Martin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CRC 34 of 2010

MR JAMISON

Applicant

And

MS MARTIN

Respondent

REASONS FOR JUDGMENT

Application

1. There is an Application before the Court brought in circumstances of some urgency by the Father of a child named [X], who was born on [omitted] 1999. The Father wishes to vary the previous parenting orders which were made by the Court back on 6 April 2011. His immediate concern is to obtain permission to remove the Child from the Commonwealth of Australia to take her on a holiday to see family members in the United Kingdom.

2. For this purpose, he will require to obtain a passport for the Child. Although the previous Orders, and in particular Order 11, provided for [X] to be permitted to travel outsider Australia and included the words “and any application for the mother’s consent to the issue of an Australian passport for [X] shall not be unreasonably withheld”, the Father has been unable to obtain the co-operation of the Child’s Mother to assist him in obtaining this passport. 

Typographical Error

1. I note also that there appears to be a typographical error in the earlier Orders relating to the Child’s first name which needs to be resolved, certainly if she is to obtain an Australian passport. The Child’s first name is [X].

The Hearing

1. I directed that the Father should contact the Mother by text message at her last known mobile telephone number as he does not have any other means of communicating with her to inform her that this Application was listed today. He was directed to do so by close of business last Monday, 7^th July. I have heard evidence from the Father to the effect that he has complied with that direction.

2. The Mother has not appeared. No legal practitioner has appeared on her behalf. The Mother has not contacted the Court to indicate that she was otherwise hindered, delayed or prevented from attending the Court due to illness, injury or some other emergency, and she certainly has not filed a Response or an affidavit. There has been no response at all from the Mother.

3. I have heard oral evidence from the Father in the witness box as to why he wishes to take his daughter on a holiday to the United Kingdom to see members of her extended family, including her great-grandmother.

Conclusions

1. It is clear that spending time with grandparents and a great grand-mother will be in the best interests of the child. Both the Family Court and this Court have long held that, in the usual course of events, it is beneficial for children to have contact with, communication with, and spend time with members of extended family as it gives the child some understanding of what her (in this case) background may be and gives her a chance to fit herself into a social network and a family network generally. A trip of this nature will give the child an idea of her place in the world.

2. It would seem to me that for a child who is rapidly approaching the age of 15, a trip to the United Kingdom, which is where her father’s family come from, would be an interesting and exciting holiday, one that she would look forward to and one from which she would gain considerable benefit. I am satisfied that the Father should be specifically permitted to take the Child, [X], out of Australia for the purpose of a holiday in the United Kingdom.

3. I am satisfied that the Father should be authorised to take all steps necessary to obtain a passport for the Child without the consent of the Child’s Mother. I also consider that, as these are interim orders, it would be beneficial for the Father to have sole parental responsibility for the child at this stage. Whilst s.61DA of the Family Law Act 1975 looks at the fact that normally when a Court is making interim orders, equal shared parental responsibility would apply (see s.61DA(3)), the circumstances of this case indicate that that would not be appropriate. It would seem to me that, until further order, sole parental responsibility should apply in favour of the Father.

4. There is an Application for final orders which has a return date of 20 October. I will consider the question of parental responsibility when the time comes to make final orders. Under s.61DB of the Act, when the Court is making final orders, it does not consider the allocation of parental responsibility made in respect of an interim order. Therefore, I will suspend the operation of Order 2 made on 6 April 2011. I will also suspend order 11 which related to travel and a passport as I am replacing those orders with the more specific orders to which I have referred.

5. I will vacate the return date of 20 October and adjourn the matter to Tuesday 2 December for mention at 10:00 am.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 August 2014