Pishke and Rupp

[2012] FamCA 1078

FAMILY COURT OF AUSTRALIA

PISHKE & RUPP [2012] FamCA 1078

FAMILY LAW – CHILDREN – where the father seeks an order enabling him solely to apply for a passport for his son – where the father has attempted to contact the mother on several occasions to no avail – where the father is seeking a passport to take his son to Country A to see his terminally ill grandfather – orders made enabling the father to obtain a passport for his son.

Family Law Act 1975 (Cth)

APPLICANT: Mr Pishke

RESPONDENT: Ms Rupp

FILE NUMBER: BRC 5106 of 2007

DATE DELIVERED: 10 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 10 December 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The Initiating Application filed on 21 November 2012 is dismissed.

2. Service of the Initiating Application filed on 21 November 2012, the Amended Initiating Application filed on 29 November 2012, and the Affidavits by Mr Pishke filed on 21 and 29 November 2012, be dispensed with.

3. The Applicant Father Mr Pishke may apply for a passport for the child B Pishke (also known as B Rupp) born … December 2005, without first obtaining the consent of the child’s mother.

4. B PISHKE (also known as B Rupp) born … December 2005 be permitted to leave the Commonwealth of Australia for the purposes of a visit to Country A, returning to Australia not later than 5 weeks from the date of departure.

5. A Registrar be authorised and empowered to sign all necessary passport applications and supporting documentation necessary to allow B PISHKE (also known as B Rupp) born … December 2005 to have a passport issued in his name and such passport be released to his father and that all other necessary documentation issue so as to permit B PISHKE (also known as B Rupp) born … December 2005 to leave the Commonwealth of Australia as previously ordered.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pishke & Rupp 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 BRISBANE

FILE NUMBER: BRC 5106 of 2007

Mr Pishke

Applicant

And

Ms Rupp

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 26 July 2010 I delivered reasons in respect of a trial of parenting issues, involving two children:  B, born in December 2005 and C, born … October 2002.  Those trials were heard together because B and C share a mother, Ms Rupp.

2. Orders were made placing each of those children into the care of their father and ordering, in effect, supervised time.  The reason for the latter arose through concerns expressed in expert evidence before the court about the mother’s mental health and issues of alleged drug use by her.

3. The reasons for judgment delivered on that day are indicative of the concerns which the court held about each of those issues. The orders made plainly reflect those same concerns.

4. B’s father now applies for an order that B be permitted to leave Australia and for a Registrar to sign a passport application and any supporting documentation necessary to allow B to undertake overseas travel.

5. The evidence revealed at trial, and revealed now, that Mr Pishke is firmly established in Brisbane, has lived at the same house for five years and B is well-established with school, peer group, friends and the like.  The application is, in terms, expressed so as to permit B to leave Australia for no longer than five weeks.

6. Mr Pishke’s heritage is Country A and the affidavit material reveals that his father, that is B’s grandfather, is suffering from a significant medical condition and both Mr Pishke and B are anxious to visit him.

7. The affidavit material before me deposes to a number of salient facts. First, there has been no contact whatsoever in a period of about two and a half years between the mother and each of her two children.  There has been contact between each of the children, in accordance with orders made by me giving effect to that.  That contact, Mr Pishke tells me, has been regular, as indeed the reasons for judgment indicate it was contemplated would be the case.

8. Mr D has provided Mr Pishke with a note which is exhibited to Mr Pishke’s affidavit, filed 21 November 2012, which indicates that the position as between he and C and the mother is precisely the same as that experienced by Mr Pishke.  In particular, Mr D says: 

   Myself and my daughter have made several attempts to make contact with [Ms Rupp] ([C’s] mother) throughout the time that [C] has been living with me as per court orders, but we have been unable to locate or communicate with [Ms Rupp], even through extended family members.  [Ms Rupp] has not been heard from since the court ordered that my daughter live with me full time.

9. Mr Pishke’s affidavit refers, in addition, to utilising all known contact details for the mother.  He has attempted to contact her former solicitors, has attempted to facilitate contact with her through the contact centre, with whom time between she and B was supposed to be arranged and has attempted, without success, to contact the mother’s mother.

10. He deposes to having no knowledge of the mother’s whereabouts and it being impossible to utilise any other avenues of inquiry so as to find her whereabouts.  He deposes, as was the case before me at trial, to:

    A history of mental disorders and drug use and [the mother] does not lead a stable lifestyle and her whereabouts are likely transient.

11. It seems to me that the order sought, restricted as it is to ensuring B’s return to Australia after a period of five weeks, ought to be made.  The purpose for the visit is understandable and permits B to spend some time with his extended paternal family, who live a very significant distance from Australia.

12. It is, in my view, in B’s best interests for such an order to be made.  All the other circumstances suggest that it is an order that ought to be made by this court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 10 December 2012.

Associate: 

Date:  20 December 2012