NHAN & TANG

[2015] FCCA 2000

FEDERAL CIRCUIT COURT OF AUSTRALIA

NHAN & TANG [2015] FCCA 2000

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – overseas travel – where child is residing with father and paternal grandparents – where mother remanded in custody pending further court proceedings.

Legislation:

Australian Passports Act 2005 (Cth), s.11

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

Applicant: MR NHAN

Respondent: MS TANG

File Number: SYC 7452 of 2012

Judgment of: Judge Scarlett

Hearing date: 22 July 2015

Date of Last Submission: 22 July 2015

Delivered at: Sydney

Delivered on: 22 July 2015

REPRESENTATION

Solicitor for the Applicant: Ms Le

Solicitors for the Applicant: TNL Law

Respondent: In person (by telephone)

ORDERS

UNTIL FURTHER ORDER

1. Orders 2, 3 and 4 made by consent on 28 July 2014 are suspended.

2. The child X born (omitted) 2010 is to live with the Applicant father.

3. The Applicant and the child’s paternal grandparents MS K and MR N are permitted to take the child X (a male) born (omitted) 2010 out of Australia to a place outside Australia in accordance with section 65Y of the Family Law Act 1975.

4. The child X born (omitted) 2010 is permitted to travel internationally as provided by section 11 of the Australian Passports Act 2005.

5. The father is to hold the child’s passport.

6. The Application for Final Orders is adjourned to     11 December 2015 for mention before Judge Sexton at 9:30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7452 of 2012

MR NHAN

Applicant

And

MS TANG

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the father of a boy called X for interim orders varying some final Consent Orders made on 28 July last year. The father wishes the Court to order that:

   a)X should live with him, at least for the time being; and

   b)X should be permitted to go on a holiday to (country omitted) with his paternal grandparents on 27 July this year.

2. The Application has been brought in circumstances of some urgency due to the imminence of the proposed departure date.

Background

1. A brief background to the matter is that the father and mother were in a relationship from 2008 to 2010.  They did not marry.

2. There is one child of the relationship, X, who was born on (omitted) 2010.

3. The parties separated in December 2010 when X was only about five months old. The child continued to live with his mother.

4. On 28 July 2014 the parties entered into final parenting Orders by consent before Her Honour Judge Sexton. Those Orders provide that:

   a)The parties would have equal shared parental responsibility for him;

   b)X would live with his mother; and

   c)X would spend time with his father on a regular basis, with the times being varied once he starts school next year.

5. There has been rather a dramatic change of circumstances. The mother was arrested in 2014 and has been charged with various drug, currency and fraud offences. She has been remanded in custody and is awaiting sentencing.

6. The father has taken his son into his care and the child now lives with him in the home he shares with his parents. The paternal grandparents assist the father with the child’s care.

7. The grandparents wish to take the child with them on a holiday to the (country omitted), leaving on 27 July and returning on (omitted) September. They need the mother’s permission for the child to travel out of Australia in accordance with s.65Y of the Family Law Act 1975 (Cth).

The current Application

1. The father seeks interim orders providing for the child to remain living in his care and for the grandparents to able to take X out of Australia for this holiday. He is also to vary the final parenting Orders, but that issue can wait for the time being. The Application for Final Orders will be transferred back to Her Honour Judge Sexton, who made the original Orders slightly less than a year ago.

2. The mother is currently remanded in custody at the (omitted) Women's Correctional Centre in (omitted), New South Wales. Although she has been served with the Application and supporting affidavit, she has not filed a Response or an affidavit.

The Hearing

1. The father relied on his affidavit of 8 July 2015, which was not filed until 20 July, for some reason. The mother attended by telephone from the (omitted) Correctional Centre.

2. The mother said that she is awaiting sentence and expects to be sentenced in three or four months’ time. She said that she had received a document by way of an authorisation for the child to go overseas with his grandparents and had signed it and arranged for it to be sent back. She has no objection to the child going to the (country omitted) on holiday, nor does she have any objection to the child remaining in the care of his father and paternal grandparents for the time being, whilst she is incarcerated. She plans to obtain legal advice from her former solicitor once she is free to return to the community.

Conclusions

1. The best interests of the child are the paramount consideration, as set out in s.60CA of the Family Law Act 1975. I am satisfied that, for the time being at least, it is in X’s best interests to live with his father and grandparents. The holiday with his grandparents sounds like a good experience for the child, and it is preferable for it to take place before he starts school next year. It would not necessarily be in his best interests to remain out of school for two months.

2. The Court is obliged by s.61DA of the Family Law Act 1975 to apply to the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This is the current situation under the Orders. Subsection 61DA(3) provides that when the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances.

3. I consider that equal shared parental responsibility should continue to apply until further Order.

Orders

1. After having heard the mother on the telephone, I am satisfied that I should make the interim orders sought, providing that X should live with his father and be permitted to travel out of Australia with his paternal grandparents.

2. The Application for final orders will be listed for mention before Judge Sexton on 11 December 2015 at 9:30 am.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  23 July 2015