OLIVERA & MAGARELLI
[2011] FMCAfam 815
•1 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OLIVERA & MAGARELLI | [2011] FMCAfam 815 |
| FAMILY LAW – Children – parental responsibility – passports – application for passports for the children – application for children to travel out of Australia – where applicant does not know respondent’s whereabouts – best interests of the children – where respondent has had no communication with children since November 2003. PRACTICE & PROCEDURE – Application for ex parte orders. |
| Australian Passports Act 2005, s.11 Family Law Act 1975, ss.60CA, 60CC, 61DA, 111B Family Law (Child Abduction Convention) Regulations 1986, Sch. 2 Federal Magistrates Court Rules 2001, R.5.03 |
| Line & Line (1997) FLC 92-729 |
| Applicant: | MS OLIVERA |
| Respondent: | MR MAGARELLI |
| File Number: | SYC 4580 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 August 2011 |
| Date of Last Submission: | 1 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2011 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | No appearance |
ORDERS
The requirement for personal service of the Application and supporting affidavits on the Respondent is dispensed with.
The Applicant is granted leave to proceed ex parte.
All previous parenting orders are discharged.
The Applicant is to have sole parental responsibility for the children of the marriage [X] born [in] 1995 and [Y] born [in] 1996.
The children [X] and [Y] are to live with the Applicant.
The children [X] and [Y] are to spend time with the Respondent on such occasions as the Applicant and the Respondent agree.
The Applicant is permitted to do all things necessary to permit the children [X] born [in] 1995 and [Y] born [in] 1996 to travel outside the Commonwealth of Australia without the consent of the Respondent.
The Applicant is permitted to apply for the issue of an Australian passport for each of the children [X] born [in] 1995 and [Y] born [in] 1996 without the consent of the Respondent.
AND THE COURT NOTES THAT it is the intention of the Applicant that the child [X] is to travel to the United Kingdom for the purpose of sporting training and competition between 10 September and 25 September 2011.
IT IS NOTED that publication of this judgment under the pseudonym Olivera & Magarelli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4580 of 2011
| MS OLIVERA |
Applicant
And
| MR MAGARELLI |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother of two boys, [X] and [Y], for orders that the children should live with her and spend time with their father as agreed. In particular, the mother wants the Court to make orders allowing her to apply for passports for the children without the need for the father to consent and to allow the children to travel outside Australia without their father’s consent.
The mother does not know where the father lives anymore, because he has moved to Queensland and she does not know his address. She seeks ex parte orders because there is a degree of urgency about her application.
The urgency arises because her elder son, [X], has been offered a position in a [omitted] to attend a school holiday training camp in England in September.
Background
The mother was born [in] 1977 and is now 34 years old. The father was born [in] 1975 and is currently 36 years age.
The parties were married [in] 1997 and separated in August 1999.
There are two children of the marriage, both of whom live with the mother and have done since their parents separated.
[X] was born [in] 1995. [Y] was born [in] 1996.
There were proceedings between the parties that commenced in the Local Court of New South Wales at Balmain on 9th July 2002.
On 26th August 2002 the parties entered into consent orders in the Family Court of Australia at Parramatta. Those orders provided that:
a)The two children should live with the mother;
b)The mother should be responsible for making decisions relating to the children’s day to day care, welfare and development;
c)The father should have contact (spend time) with the children on alternate Saturdays at the Centacare Contact Service in [suburb omitted] and later on alternate Sundays by collecting the children from and delivering them back to the Centacare Contact Service.
Evidence
The mother swore an affidavit on 29th July 2011 and gave oral evidence on 1st August.
Her evidence is that the last time the children saw their father was in November 2003. They did not hear from him for months until he telephoned the mother and advised her that he had moved to Queensland to live.
The mother deposed in her affidavit that the father only makes contact about once every four months, and then only by telephone. She speaks to him on the telephone but the children refuse to speak to him.
The mother wishes to obtain a passport primarily for [X] but also for [Y] as a matter of urgency. [X] is a keen [omitted] player and has been playing for ten years. He has been offered the opportunity to travel to England with a [omitted] squad and play a number of games against English sides between 10th and 25th September 2011. He needs a passport and he also needs permission to leave Australia.
The mother deposes that she has been trying to telephone the father to tell him about the child’s trip away and to advise him that the child urgently needs a passport. She has left voice messages and text messages but has had no response. She has performed a White Pages search for another telephone number for the father without success. She also attended at the Australian Electoral Office in order to carry out an electoral search, but without success.
The mother has remarried and has two children by her current marriage. She resides permanently in Australia and intends to remain here. She does not intend to travel to England with [X] when he goes on his [omitted] tour.
The mother also seeks an order that she should be able to apply for a passport for [Y], although there is not the same degree of urgency as obtaining a passport for [X].
The mother also wishes to obtain an order that she have sole parental responsibility for both boys, as their father has not been involved in their lives since 2003.
The Relevant Law
Where an applicant claims that an application should be heard urgently, it is necessary to follow the procedure set out in Part 5 of the Rules. In particular, Rule 5.03 provides that the applicant must establish by affidavit or, with the leave of the Court, orally:
a)whether there are previous proceedings between the parties and, if so, the nature of the proceedings; and
b)whether there are any current proceedings in any court in which the applicant and the respondent are parties; and
c)the particulars of any orders currently in force between the parties, including the courts in which they were made; and
d)the steps that have been taken to tell the respondent or the respondent’s legal representative of the applicant’s intention to make the application or the reasons why no steps were taken; and
e)the nature and immediacy of the damage or harm which may result if the order is not made; and
f)why the making of the order is a matter of urgency and why an abridgement of the time of service of the application and the fixing of an early hearing date would not be more appropriate; and
g)if the application is a financial matter, the capacity of the applicant to give an undertaking as to damages; and
h)the other facts, matters and circumstances relied on by the applicant in support of the application.
Where a party is applying for a parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
Subsection 61DA of the Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that is would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s.61DA(4)).
In any application to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia. The Full Court of the Family Court of Australia considered this question in Line & Line[1], which concerned an application to take a child out of Australia to the United States of America for a holiday.
[1] (1997) FLC 92-729
The Full Court held that the court must consider the degree of risk that the child will not be returned to Australia, which includes whether the country or countries of travel are signatories to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (known as “The Hague Convention”), (see also Family Law Act 1975, s.111B).
Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows that the United Kingdom has been a Convention country since 1 January 1987.
Subsection 11(1) of the Australian Passports Act 2005 provides that:
The Minister must not issue an Australian passport to a child unless:
(a) each person who has parental responsibility for the child consents to the child travelling internationally; or
(b) an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.
Conclusions
I am satisfied that this is a suitable matter to be dealt with ex parte and on an urgent basis. Whilst there was originally no urgency, the father’s failure to respond to any calls or messages from the mother and the imminence of the child’s proposed trip away has now made the matter urgent. The mother has made all reasonable attempts to contact the father and there appears to be nothing further that she can reasonably be expected to do.
I will grant leave to proceed ex parte.
The proposed visit to the United Kingdom appears to be in the best interests of the child [X], who, on the evidence, is a keen and capable [omitted] player. The opportunity to play his sport in the United Kingdom will enhance his interest and may assist him to proceed further.
The degree of risk that the child will not be returned to Australia is very low, to the point of almost being non-existent. The mother is not travelling with him; she is staying in Australia to care for her other children. She has remarried and regards this country as her home. In any event, the United Kingdom is a Hague Convention Country.
I am satisfied that the child [X] should be issued with an Australian passport without the consent of the father being obtained.
Similarly, although there is no immediate plan for the younger boy, [Y], to travel outside Australia at this stage, I am satisfied that he should also obtain an Australian passport. The mother has given evidence that the family may wish to take a holiday overseas in future. The mother has remarried and her present husband was born in Ireland.
The mother also seeks orders that the two children should live with her and that the children should spend time with their father as agreed between the parties. She also seeks an order that she have sole parental responsibility for the children.
The evidence is that the children have had no contact with their father since November 2003 and do not wish to speak to him when he telephones the mother from time to time. As he apparently plays so little part in their lives, it is in my view appropriate that the Court should order that the children should live with their mother and spend time with the boys at times agreed by the parties. If the father does wish to establish a relationship with the boys, he is always at liberty to bring his own application to the Court.
In all the circumstances, it is not in the children’s best interests for their parents to retain equal shared parental responsibility for them. They have lived with their mother since their parents separated and have had no communication with their father for over seven years. I am satisfied that it is in the children’s best interests for the mother to have sole parental responsibility for the children.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 9 August 2011
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