Newberry & Chan
[2023] FedCFamC1F 1132
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Newberry & Chan [2023] FedCFamC1F 1132
File number: NCC 338 of 2022 Judgment of: MCGUIRE J Date of judgment: 24 November 2023 Catchwords: FAMILY LAW – PARENTING – Application by father seeking a watchlist order – Application opposed by the mother – Orders made for child to be placed on the Airport Watchlist Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 24 November 2023 Place: Sydney Counsel for the Applicant: Ms Smith Solicitor for the Applicant: Burke Mead Lawyers Counsel for the Respondent: Litigant in Person Counsel for the Independent Children’s Lawyer: Ms Makdo Solicitor for the Independent Children’s Lawyer: Santo Family Lawyers ORDERS
NCC 338 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NEWBERRY
Applicant
AND: MS CHAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Order 42 of Orders of the Federal Circuit & Family Court of Australia (Division 1) made 12 July 2023 in respect of a time limited Airport Watch List order in respect of the child K born 2011 be discharged.
UNTIL FURTHER ORDER
2.That each of MR NEWBERRY and MS CHAN and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child K born 2011 (male) from the Commonwealth of Australia.
3.That K born 2011 (male) be and is hereby restrained from leaving the Commonwealth of Australia.
4.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child K born 2011 (male) on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia (‘the Watch List’) and maintain the child’s name on the Watch List for a period of twelve (12) months.
5.The Parramatta Registry of the Federal Circuit & Family Court of Australia continue to hold the passport of the child K born 2011 (male).
6.Each of the parties be and are hereby restrained from applying for a passport for the child K born 2011 (male) from any nation other than Australia.
7.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.
8.These proceedings be listed urgently before a Judicial Registrar of the Federal Circuit & Family Court of Australia at Sydney for a priority hearing in respect of the father’s extant contravention applications.
9.Liberty to the parties or either of them to apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Newberry & Chan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
McGUIRE J:
APPLICATIONS
These are parenting proceedings of a discrete nature in respect of the parties’ one child K born 2011. K is 13 years of age. The history of this matter is relevant to the application that is now before me which is an urgent interlocutory application effectively seeking an Airport Watchlist order in respect of K in the interim. On 12 July 2023 I made comprehensive parenting orders by consent in respect of K but which provided discretely at order 32, remembering that these were orders made in July, that the mother is permitted to remove K from the Commonwealth of Australia for a period of three weeks during the school holidays at the conclusion of Term 4 in 2023 with a number of attendant conditions: firstly, a notice of 28 days’ duration, the provision of an itinerary showing purchased return tickets, a copy of the return tickets and the depositing of a bond of $100,000.
Those orders, obviously, agreed to after some lengthy negotiations provided, as I see and most likely as a form of goodwill, separate, discrete stand-alone orders. Firstly, at order 42, that as of 1 December 2023, K’s name be removed from the Family Law Watchlist. Importantly, that order is not an interim order. It is not a conditional order. It is simply to allow travel during the December 2023 school holidays. It is a stand-alone order that would remove K’s name from the Airport Watchlist, per se, and further supporting that is order 41 which says that as from 12 months of the date of these orders, being July 2024, that both parents, or more particularly, each parent, be permitted to remove K from Australia for holidays during the time K is in their care pursuant to these orders.
It is proper to point out that the father, whilst an Australia citizen or a permanent resident, has origins in the United Kingdom. The mother says she has lived for 35 years in Australia but has origins in Country Q and may or may not hold a dual passport. It is not relevant for me to know at the moment. Those orders provide, in summary, that the mother be able to travel during the forthcoming school holidays, that each of the parents be able to travel out of Australia as of July 2024, and that the Airport Watchlist order imposed by the July 2023 orders be lifted on 1 December 2023 and not simply be suspended.
What has happened in the interim is that Mr Newberry (“the father”) brings an application effectively seeking orders for a fresh Airport Watchlist to be made in respect of K, which I must do for a period of time. The father does not stipulate the time, but by implication it would be until these matters have been resolved. The most usual period of time in these circumstances would be for approximately 12 months. The rationale of the father’s application is that the orders of 12 July 2023 also provide for the father to have time with K initially supervised at the Contact Centre commencing October 2023, and secondly, they provide for therapy to be commenced for K and the father in respect of their relationship.
The father says, and I accept, that he has filed a Contravention Application alleging that the mother has not complied with those orders. I am not dealing with the Contravention Application today but the submissions of Ms Chan (“the mother”), who appears in person today, suggest that she is going to raise an argument of reasonable excuse on that application if it comes to be heard. But importantly, the mother also tells me, and I accept, given that she has not complied with the conditions inherent in the orders for the purposes of December 2023 school holidays that she does not intend to travel with K for the school holidays of 2023, which would require her to enter into a number of conditions including the provision of a $100,000 bond, which she has not done, the giving of 28 days’ notice, etcetera, which she has not done.
I accept the mother says she does not wish to travel, but what these orders actually do is, and particularly in respect of order 42, discretely allow or provide for the Airport Watchlist order to be removed. The father argues, and with some merit, that the fact of the Contravention Application now gives him some concerns as to the mother’s bona fides apparently reached in the goodwill attached to the orders of July 2023 in circumstances where these orders or the orders of July 2023 would provide discretely for the lifting of the Airport Watchlist order by 1 December 2023, which is next week, and where the mother is not prejudiced by the orders sought by the father, I am of the view that at least pending the disposal of the Contravention Application, then, I should make an order for a fresh Airport Watchlist order in the terms sought by the father, and I intend to do so.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 30 January 2024
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