Lauber and Truman - [2010] FamCA 274

FAMILY COURT OF AUSTRALIA

LAUBER & TRUMAN

[2010] FamCA 274

FAMILY LAW – CHILDREN – Interim procedure – Passport application – Travel for specified period

Family Law Act 1975 (Cth) ss 60CC, 64B, 65Y

Ciobo & Ciobo (1996) FLC 92-651
Goode & Goode (2006) FLC 93-286

Kuebler & Kuebler (1978) FLC 90‑434

APPLICANT:

Mr Lauber

RESPONDENT:

Ms Truman

FILE NUMBER:

BRC

913

2009

DATE DELIVERED:

29 March 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

29 March 2010

REPRESENTATION

APPLICANT:

Appeared in person

RESPONDENT:

Appeared in person

Orders

That Applicant MR LAUBER may apply for a passport for the child C born … December 1993 without first obtaining the consent of the child’s mother.
Subject to compliance with the following paragraph of these orders C born … December 1993 is permitted to travel internationally after 10 April 2010 for the purpose of a holiday to the United Kingdom, returning to Australia on or before 8 June 2010.
By 4.00pm on 1 April 2010, the father shall send to the mother by Registered Post:
(a) A photocopy of the return tickets for himself and C;
(b)The address or addresses for which it is claimed that he and C will stay for seven (7) nights or longer during the United Kingdom holiday;
(c)A phone number at which C can be contacted in cases of emergency.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 913 of 2009

MR LAUBER

Applicant

And

MS TRUMAN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The parents of C, born in December 1993, and H, born in December 2000, separated in January 2003 and divorced in September 2004. Now, some seven years later, the parties are still in dispute about parenting issues with respect to the two children. The parents have, accordingly, been in dispute about their children for the vast majority of H’s life and the majority of C’s life.
That such a situation exists, and that neither have been able to put their differences aside in the best interests of their children, speaks ill of each of them. There is no shadow of a doubt that both C and H suffer as a result of the fact that their co‑parents, who they have an absolute right to be parented by, and to love equally unequivocally, and without condition, are likely to be damaged by the ongoing conflict between their parents.
The latest manifestation of that conflict sees the father applying for orders that would facilitate the issue of a passport for C, and a resulting ability for he and C to travel to the United Kingdom for a period of about eight weeks, commencing 10 April 2010. The mother opposes that application.
The father says that he has been promising C a trip to the United Kingdom for some time and in mid‑2008…

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 Lauber and Truman

Details

AGLC: Lauber and Truman [2010] FamCA 274
Case: [2010] FamCA 274
Decision Date: 29 March 2010

CaseChat Overview and Summary

In the matter of *Lauber and Truman*, heard before Murphy J, the applicant, Mr Lauber, sought orders permitting him to apply for a passport for his child, C, without the consent of the child's mother. The dispute also concerned permission for C to travel internationally for a holiday to the United Kingdom.

The court was required to determine whether to grant Mr Lauber leave to apply for a passport for C without the mother's consent, and whether to permit C to travel internationally to the United Kingdom for a specified period.

Murphy J reasoned that the father should be permitted to apply for a passport for the child without the mother's consent, and that the child should be permitted to travel internationally for the holiday. These permissions were made subject to specific conditions designed to ensure the mother's awareness of the travel arrangements and C's whereabouts, including the provision of return tickets, accommodation details for stays of seven nights or longer, and an emergency contact number.

Orders

Orders of the court

That Applicant MR LAUBER may apply for a passport for the child C born … December 1993 without first obtaining the consent of the child’s mother.

Subject to compliance with the following paragraph of these orders C born … December 1993 is permitted to travel internationally after 10 April 2010 for the purpose of a holiday to the United Kingdom, returning to Australia on or before 8 June 2010.

By 4.00pm on 1 April 2010, the father shall send to the mother by Registered Post:

(a) A photocopy of the return tickets for himself and C;

(b) The address or addresses for which it is claimed that he and C will stay for seven (7) nights or longer during the United Kingdom holiday;

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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