Shephard and Shephard

[2012] FamCA 647

FAMILY COURT OF AUSTRALIA

SHEPHARD & SHEPHARD [2012] FamCA 647

FAMILY LAW – CHILDREN – Father allowed to take the children to live in South East Asia for eight months

Family Law Act 1975 (Cth)

APPLICANT: Mr Shephard

RESPONDENT: Ms Shephard

INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann

FILE NUMBER: CSC 309 of 2009

DATE DELIVERED: 1 August 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 1 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone

Orders

1. Any order that has been made that is inconsistent with these orders be suspended for a period of eight months from 9 September 2012.

2. The father be at liberty to take the two children, H born … November 2001 and T born … March 2003 from Australia to South East Asia for a period of no longer than eight months from 9 September 2012 provided that the father complies with the following conditions.

   2.1.He provide to the mother a complete travel itinerary detailing travel dates, with the departure date of … September 2012;

   2.2.Provide to the mother a copy of return air tickets;

   2.3.Provide to the mother details of residential address where the boys will live in South East Asia;

   2.4.Provide to the mother phone contact numbers for South East Asia;

   2.5.Provide that the boys be able to speak to their mother on skype once a week and text any time;

   2.6.Ensure that the boys receive any texts sent by their mother and any phone call made by their mother at any reasonable hour;

   2.7.The father assertain the costs of an air ticket to South East Asia for the mother and her 19 month old child so that she can visit the boys during Christmas school holidays or other suitable time and the money for that return air ticket(s) be deposited into the trust account of the Independent Children's Lawyer.

3. Both parties do all things and sign all necessary documents to enable these orders to be carried out.

4. Leave granted to the father to relist this matter before me should there be some order that he needs to facilitate the implementation of these orders.

5. Pursuant to s.65DA(2) and s.62B, 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 by this Court under the pseudonym Shephard & Shephard  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 CAIRNS

FILE NUMBER: CSC 309 of 2009

Mr Shephard

Applicant

And

Ms Shephard

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The father has made an application that he be able to take the two children of the marriage, H aged 11 and T aged nine, to South East Asia for a period of eight months. The father in his affidavit filed 1 June 2012, which has been served on the mother, sets out in paragraphs 4 through to 10, the basis upon which he seeks to be able to take the boys out of the country for a period of eight months. The boys have been living with him for the last three years. They have been seeing their mother irregularly and only for very limited periods of time, notwithstanding the fact that there were orders made in March that allowed the mother more extensive periods of time as long as the children did not have any contact with Mr W.

2. There has been a very volatile relationship between the mother and Mr W over a significant period of time and although the mother tells me that their relationship is currently at an end as of six weeks ago, Mr W still visits her home for the purposes of spending time with their 19 month old child.

3. The factual matters set out in the father’s affidavit do not seem to be brought into question by the mother and I am satisfied that on the basis of what is set out there, given that he has had the care for the boys for the last three should be allowed to go overseas with him. I form the view that he is not a significant flight risk. He still has a daughter here in Australia, he has social security benefits that emanate from Australia and he has set out reasonably clearly the reason why he wishes to be able to live in South East Asia for an eight month period.

4. I am satisfied that the father can put in place some reasonable arrangements in relation to the children’s education for that time and that it is in the best interest of the boys that I make the orders sought by the father.

I certify that the preceding 4 (four) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 1 August 2012.

Associate: 

Date:  6 August 2012