Pratley & Pratley (No 6)
[2023] FedCFamC1F 484
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pratley & Pratley (No 6) [2023] FedCFamC1F 484
File number(s): CAC 298 of 2019 Judgment of: GILL J Date of judgment: 13 June 2023 Catchwords: FAMILY LAW - Parenting proceedings - Holding of passports Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 13 June 2023 Place: Canberra Counsel for the Applicant: Mr Richardson, SC Solicitor for the Applicant: Hijazi Curran Cameron Lawyers Counsel for the Respondent: Ms Gillies, SC Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
CAC 298 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PRATLEY
Applicant
AND: MR PRATLEY
Respondent
order made by:
GILL J
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.Within 7 days of a written request by either parent, both parties shall do all acts and things necessary to renew the children’s Australian passports from time to time, as and when required, and/or apply for a new Australian passport (if that becomes necessary at any point), and the costs of the renewal/application shall be equally shared by the parties.
2.Subject to these Orders, the children’s passports shall be held by the mother.
3.Pursuant to s 65Y of the Family Law Act 1975 (Cth), either party is permitted to take the children outside of the Commonwealth of Australia for the purpose of overseas travel with the children, if the following conditions have been met:
(a)The proposed travel period does not encroach upon the other parent’s time with the children, or if it does (which shall only occur with the written consent of the other parent), then the travelling parent shall provide make up time to the other parent, to occur in the next school holiday period after the travel period;
(b)The travelling parent provide at least 14 days’ written notice to the other parent with proposed dates of departure and return, and the following:
(i)A travel itinerary, including dates of return flights purchased for the children;
(ii)Details of the destination, contact details that the children can be contacted on whilst overseas, and the suburb/city in which the children will be staying during the period of travel.
4.Provided the conditions set out in Order 3 are complied with, should the father wish to travel overseas with the children, the mother shall provide the children’s passports to the father at least 21 days prior to the proposed departure date, and within 7 days of the father returning from international travel, he shall return the children’s passports to the mother.
IT IS FURTHER ORDERED THAT:
5.The property proceedings are listed for further directions before a Senior Judicial Registrar on 6 July 2023 at 10 am.
6.The parties are to be in a position to articulate with precision any outstanding disclosure issues that are between them.
7.The parties are to be in a position to advise the Senior Judicial Registrar of any outstanding valuation issue that will be required to be resolved for the early allocation of a further hearing date for the resolution of the property proceedings.
IT IS NOTED THAT:
8.Failure to advise the Senior Judicial Registrar of such may mean that if the matter is listed for final hearing and a party raises the same issue as justification for a delay for that hearing that such justification will be unlikely to hold any weight in such application.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
The final aspect of the parenting dispute between these parties relates to the holding of the passports for the children. The parties are not in dispute about the mechanism by which new passports should be obtained for the children, nor are they in dispute as to the mechanisms to enable travel overseas with the children. Further, they are not in dispute with the fact that either parent should be able to take the children overseas. The dispute simply relates to the holding of the passports and the mechanisms for release for the passports. That dispute centres on the part of the father on the issue as to whether or not the mother is likely to be cooperative in the provision of passports, although the mother points to there being a lack of evidence to suggest that she is not compliant with the orders. The father points to various exhibits exemplifying the difficulties that the parties have in their communication. It may be observed that at least those examples of communication are highly disrespectful and are disrespectful in a manner that is suggestive of ill-will harboured by each party towards the other. The tendered material also indicates that the parties have not been able to previously come to agreement about mechanisms for the holding of passports.
Each of these matters bodes ill for the future holding of passports and indicates that the ground is fertile for there to be further disputes and obstructions engaged in by each of the parties.
Two mechanisms are proposed for the holding of passports, one is that the children’s passports will be held by the mother, with the mother being under obligation to provide the passports to the father provided two preconditions are met. The first precondition that is met is that contained within order 11 of Exhibit C1, being that the necessary acts have been done to ensure that the children have their passports and the second is that in excess of 21 days’ notice has been given by the father of the intention to take the children overseas such that the passports can be provided to him 21 days in advance of the exit date.
The mechanism proposed by the father is for the court registry to hold the passports. The circumstances then for release of the passports are set out at orders 8 through 11 of Exhibit C2, involve particular notifications and requests to be given and impose upon the registry the obligation of determining whether or not there has been compliance otherwise with the orders in respect of travel prior to the releasing of the passports. It may be observed that there is some clumsiness in respect of each of those mechanisms. The advantage of the mechanism proposed by the father is that it places responsibility on a registry staff member to determine the release of the passports. This is a heavy and onerous obligation to place upon a registry staff member who is not a parent of either of the children and under the circumstances where the registry itself is, it might be thought, subject to practical limitations in dealing with matters such as this given the other matters that are required for the registry to deal with. On the other hand, the ill-will and lack of respect held by the parties for each other indicates that the mother holding the passports is, as observed earlier, fertile ground for there to be further disputes. Such further disputes might be thought to be very much to the detriment of the children particularly if they were to result in expectations of travel being thwarted at the last moment by the failure to provide the passports. The examples put forward by the father speak towards those risks.
However, the circumstances now differ from the circumstances whereby the parties were unable to come to an agreement about the holding of the passports in that the parties were unable to come to that agreement in the absence of court orders. The mechanism, which ever it is that is put in place now, will by force of court order place obligations upon the holder of the passports to hand the passports over to the relevant parent. The fact that the court orders will operate in that manner gives sufficient comfort that the mother will provide the passports to the father because she will be required to do so under force of court order. It might be observed that should the mother fail to comply with the court orders then undoubtedly it might be thought that there will be an application for enforcement of the court orders. It might also be observed that that might not be a matter able to be dealt with in advance the children’s proposed travel, being a matter that would undoubtedly be disappointing to the children, but it may also be observed that the taking of enforcement action under parenting orders enables the court to revisit those parenting orders. Hence, the mother is on notice that a failure to comply with the obligations imposed upon her by these orders may well see a different regime being placed upon her in the future. I trust that this will not happen.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 June 2023
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