O’HARA & CHESNIKOVA

[2011] FamCA 693

FAMILY COURT OF AUSTRALIA

O’HARA & CHESNIKOVA [2011] FamCA 693

FAMILY LAW – CHILDREN – an order for the issue of a passport – time father spends with the child

Family Law Act 1975 (Cth)

APPLICANT: Mr O’Hara

RESPONDENT: Ms Chesnikova

FILE NUMBER: MLC 7313 of 2009

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

ORDERS

1. That the applicant have leave to proceed without formal service upon the respondent.

2. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

3. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

4. That all outstanding applications be dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That pursuant to s65DA(2) and s62B, 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.

IT IS NOTED that publication of this judgment under the pseudonym O’Hara & Chesnikova has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 7313 of 2009

Mr O’Hara

Applicant

And

Ms Chesnikova

Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 24 June by Mr O’Hara against his wife Ms Chesnikova relating to their child, B,  who has now just turned six years of age some weeks ago. 

2. The background of the matter is relatively simple.  There has been significant litigation about the child in the C Court, D City, culminating in an order made by the Court in the absence of the mother, but it would appear, reading the judgment, with her knowledge of the proceedings, on 6 April.  The Court there made quite specific findings that Mr O’Hara could not only spend time with the child but spend that time in Australia.  The order provides that that time is to be for one month in each calendar year.  Whilst that may be somewhat unusual for a child that age, having regard to the difficulties Mr O’Hara has had in forming some recent relationship with the child, it is not for me to go behind the orders of another Court which seems to have addressed all of the issues that a Court in Australia would have had to have addressed under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

3. The application today seeks effectively two things.  The first is an order for the issue of a passport for the child so that she can leave D City to fulfil the orders of the D City Court. I have indicated my concern about the fact that this application has been presented on an ex parte basis, in other words, without the knowledge of the mother, but it is clear that the mother did not participate in the proceedings in D City, and that court made the order without any concerns about her absence. More importantly there has been a previous passport, a copy of which I have seen attached to the affidavit, which is now expired. 

4. It seems that Mr O’Hara, who is not a Country E citizen, cannot take his daughter out of Country E, to comply with the orders of the D City court, without an Australian passport because he is not eligible for a Country E passport.  It seems to me that that issue is not terribly controversial.

5. The second issue relates to the time that Mr O’Hara spends with the child and he has proposed quite specific dates.  I am satisfied that notice has been given to the mother about those dates. 

6. Mr O’Hara seeks an order that not only is the time now specified by an order of this court but that he have sole responsibility for the child during the time that he is in Australia so that the problems of medical care can be overcome.  That certainly seems logical. 

7. In the circumstances, to fulfil the orders of the D City court, I think it is appropriate that orders be made.  I propose to waive the requirement for the service of the documents and permit the applicant to proceed in the absence of notice to the mother for the reasons I have outlined.

8. To the extent that these orders are parenting orders, as they must be, having read the judgment of the D City court, I am quite satisfied that all of the matters that I would be required to consider in section 60CA and section 60CC of the Act have been canvassed and covered and the Court quite clearly in D City decided that it was in the child’s best interests that she have the time with her father and it is noted, specifically, that the Court would not have been concerned about the period of the absence of the child from her mother, which is one of the matters that is set out in section 60CC of the Act. In those circumstances, I think it is appropriate that the orders be made in those terms.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 July 2011.

Associate:

Date:  14 July 2011