Kenta and Nemelia

[2013] FamCA 318

FAMILY COURT OF AUSTRALIA

KENTA & NEMELIA [2013] FamCA 318

FAMILY LAW – CHILDREN – Father’s application for orders which would permit him to take the children on an overseas holiday – Application dismissed but time allowed for the father with the children in Australia

APPLICANT: Mr Kenta

RESPONDENT: Ms Nemelia

FILE NUMBER: SYC 5874 of 2011

DATE DELIVERED: 13 February 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 1 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenta appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Ms Nemelia appeared on her own behalf

Orders

1. That the father’s Application in a Case filed on 27 November 2012 and his Amended Application in a Case filed on 28 December 2012 are dismissed.

2. That the children of the marriage, namely F born on … February 2000 and W born on … February 2003 spend time with the father from 22 June 2013 until 7 July 2013.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5874 of 2011

Mr Kenta

Applicant

And

Ms Nemelia

Respondent

REASONS FOR JUDGMENT

the proceedings

1. These proceedings concern the father’s application for interim orders which would permit him to take the children of the parties on an overseas holiday between 22 June 2013 and 7 July 2013.  The children of the parties are:

   B born in April 1997 (15)

   F born in February 2000 (13)

   W born in February 2003 (10)

   B lives in Sydney with the father and F and W at the Gold Coast in Queensland with the mother. 

2. Pursuant to interim orders made by Fowler J on 23 January 2012, the mother is restrained from removing F and W from the Commonwealth of Australia and the names of these children have been placed on the Airport Watch List.  These orders provided for the children to spend time with the father from 31 March 2012 until 15 April 2012.

3. Pursuant to further interim orders made on 29 October 2012 the children spent time with the father for four weeks during the upcoming Christmas school holidays.  There are no current orders which provide for the children to spend any time with the father in the future.

4. The mother’s Response to an Application in a Case indicated that she consents to F and W spending time with the father between 22 June 2013 and 7 July 2013 but opposes their leaving the Commonwealth of Australia during that period or at any other time.  Her opposition to overseas travel with the father seemed to be based solely on the fact that she is presently restrained from taking an overseas holiday with the children herself. 

5. I had before me very scanty evidence, which consisted only of the father’s affidavits in which he set out his proposal for the overseas holiday; the mother’s affidavit stating that she opposed the father taking the children on an overseas trip unless she was permitted to do likewise and an affidavit of the mother’s brother which consisted largely of a litany of criticisms of the father.  During his submissions the father repeatedly informed me that a court in Hong Kong had found the mother to be “a flight risk” but I was provided with no evidence or orders to that effect.

6. The father proposes to take the children to Hong Kong and New Zealand during the winter school holidays.  The purpose of the trip to New Zealand is to visit the ski fields.  He intends to use frequent flyer points to obtain air tickets and provided no evidence as to how he proposes to meet the cost of accommodation and other expenses of the holiday.  He informed me that his current financial position prevents him from lodging any cash security for the children’s return to Australia.

7. In circumstances where I know so little of the background to and issues involved in the proceedings I am reluctant to accede to the father’s application.  I cannot determine whether there is a risk that he will fail to return the children to the jurisdiction and he is in no position to provide any cash security that he would do so.

8. It seems to me that the children should spend time with the father during the winter school holidays and, as noted, the mother offered no opposition to such an order.  I can see no reason why this time should be spent overseas at this point in the proceedings.  There are many enjoyable activities for the father and the children available within the Commonwealth of Australia and the father offered no other reasons, such as a necessary visit to an overseas family member, why I should make the orders that he sought.  Accordingly, I will dismiss the father’s Amended Application in a Case filed on 28 December 2012.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 13 February 2013.

Associate:     

Date:              13 February 2013