Sania and Roched

[2009] FamCA 670

FAMILY COURT OF AUSTRALIA

SANIA & ROCHED [2009] FamCA 670

FAMILY LAW – ORDERS – Discharge

Family Law Act 1975 (Cth)

APPLICANT: Ms Sania

RESPONDENT: Mr Roched (Deceased)

FILE NUMBER: MLC 163 of 2007

DATE DELIVERED: 20 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 July 2009

REPRESENTATION

THE APPLICANT: In person

Orders

1. That paragraphs 8 and 9 of the orders made on 13 June 2007 be discharged.

2. That the Australian Federal Police be forthwith advised of the discharge of the said orders and in particular that the children may leave the Commonwealth of Australia this day.

3. That all extant applications be otherwise dismissed.

4. That the reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 163 of 2007

MS SANIA

Applicant

And

MR ROCHED (Deceased)

Respondent

REASONS FOR JUDGMENT

1. This is an urgent oral application made on 20 July 2009 by Ms Sania, to whom I shall refer in these reasons as “the wife”.  Mr Roched died in September 2007.  Evidence of that is by way of a death certificate attached to the affidavit which the wife has provided the court.  On 13 June 2007, by consent of the parties, all final orders were made relating to parenting issues.  Paragraph 8 and 9 of the orders provided that both husband and wife were restrained from removing the children, a daughter, born in November 1999 and a son born in February 2003, from the Commonwealth of Australia.

2. The orders further provided that the children’s names be placed on the airport watch list.  It will be seen that the husband died some three months later.  In an affidavit filed this morning, the wife says that she was travelling overseas to leave Australia on Saturday due to her father being seriously ill.  Sadly, as is often the case in these sorts of situations, people tend to forget about the fact that they seek these orders from the court.  The orders from 2007 are still in existence, and when she was no doubt faced with the problem, all of the plans had to be set aside.  She has attached to her affidavit the relevant itinerary details showing the flights out of Melbourne on Emirates Airlines, and she says that she now has an arrangement that if she can have an order from the court discharging the 2007 orders, Emirates will arrange a flight tonight.

3. In her affidavit, the wife says that she is the sole carer and mother of the children, and is in need to travel urgently, as she has taken leave from her work to be able to see her father before he passes away.  On that basis, the matter can be deemed to be urgent.  I’m satisfied that the husband is deceased and therefore there is no person upon whom the application can be served.  The independent children’s lawyer who acted in the proceedings is no longer a participant in the proceedings by virtue of his appointment being discharged on 13 June.  It seems to me that this is an appropriate case to discharge the orders and I propose to make orders to that effect. 

I certify that the preceding Three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  29 July 2009