Waldon and Cronin

[2019] FCCA 1517

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDON & CRONIN [2019] FCCA 1517

Catchwords:
FAMILY LAW – Ex tempore ruling on mother’s application to travel to Country B.

Applicant: MR WALDON

Respondent: MS CRONIN

File Number: DGC 539 of 2019

Judgment of: Judge Burchardt

Hearing date: 13 May 2019

Delivered at: Dandenong

Delivered on: 13 May 2019

REPRESENTATION

Counsel for the Applicant: Ms P. McHugh

Solicitors for the Applicant: Dandenong Family Lawyers

Counsel for the Respondent: Mr G. Da Gama

Solicitors for the Respondent: Vernon Da Gama & Associates

Counsel for the Independent Childrens Lawyer: Mr O’Connell

Solicitors for the Independent Childrens Lawyer: Altavilla Family Law

ORDERS

THE COURT ORDERS THAT:

1. The extant Airport Watch List order be discharged and the Australian Federal Police be requested to remove the name of the child [X] born … 2017 from the Airport Watch List currently in force at all points of international arrival and departure in the Commonwealth of Australia.

2. The child be permitted to leave the Commonwealth of Australia.

3. The matter be adjourned to this Court for Interim Hearing before Judge Burchardt as fixed on 12 June 2019 at 9.30 am.

4. Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, interim orders are made accordance with the attached Minutes of orders handed up and placed on the Court file.

THE COURT DIRECTS THAT:

1. The solicitors for the Respondent file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to [email protected] within seven (7) days. 

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

ENGROSSED MINUTE

IT IS ORDERED:

1. The Father spend make up time each Monday 12:00 noon to 5:30pm, Thursday 12:00 noon to 5:30pm, pick-up and drop-off at Suburb A Police Station, for only 2 weeks, for the weeks commencing 3rd June 2019 and 10th June 2019.

2. (a) The Mother shall within 7 days transfer to the trust account of the Mother’s solicitor the amount of $10,000.00 (the bond) to be held in trust pending the child’s return to Australia.

   (b) In the event of the failure of the Mother to return the child to Australia on or before 6th July 2019 (the due date) the Father may be at liberty to apply to the Court to reimburse the Father for any costs expended by him in seeking a return of the child to Australia.

   (c) In the event of the Mother returns the child on the due date the Father shall authorise the return forthwith of the full amount of the said bond to the Mother.

3. That the Australian Federal Police Watch List Order for [X] be suspended from 20th June 2019 to 6th July 2019 and the Mother and child be permitted to travel between 20th June 2019 and 6th July 2019 to Country B.

4. That the Mother be at liberty to provide a copy of these orders to the Australian Federal Police.

5. The Mother be permitted to travel with [X] born … 2017 out of the Commonwealth of Australia from 20th June 2019 to 6th July 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 539 of 2019

MR WALDON

Applicant

And

MS CRONIN

Respondent

REASONS FOR JUDGMENT

1. The parties in this proceeding were together for nine years and lived in a number of different places, which is unsurprising, given that they are both professionally qualified, as I understand it, and have what might be otherwise described as relatively portable employment.  They were married on … 2016, and their child was born on … 2017.  Separation in January of this year was difficult, and relations between the parents remain strained. 

2. The mother seeks to go to Country B to attend the 40^th wedding anniversary – sorry – the – I think it  is 40^th, but if I am wrong – certainly one of great duration – 40^th wedding anniversary of her parents and also, one would infer, to either introduce or reintroduce, as the case may be, the child to other family members and friends.  It is not, in one sense, urgent, but it is not specious either.  The real question, of course, is whether she is likely to come back.  She has no family in this country, no real ties.  She has a lease, but I do not read much into that one way or the other.  On the one hand, money is tight, so it is not easy to put money up-front.  On the other hand, it is not a five year lease.  Nothing turns on that much one way or the other.

3. There are, however, two things that, perhaps, bear mention.  The first is that the mother could have departed at any time up to now.  There is no watch list order.

RECORDED  :  NOT TRANSCRIBED

1. The wife might reasonably have thought that she was not restrained from leaving and endeavoured to do so and did not.  So I regard that as a telling factor, because, obviously, if she had been turned back at the airport, that would be one thing, but the fact is she has made no endeavour to abscond in circumstances where, even though she would have failed if she had tried to do so, she would not have known till she hit the airport that that was the case. 

2. She is also training to be a professional in this country and is a professional in Country B.  I note that there must be some doubt as to the extent to which Country B properly honours its Hague  Convention obligations, but the fact is that it is a country in which I can properly take notice of the fact that the rule of law applies.  There have been periods in the past where that comment might, perhaps, not so readily have been made, but it is a long while since the dirty war.

3. In my view, the benefit to the child of the mother having the solace of a brief visit to see her family and re-immerse herself briefly in her more standard surroundings is considerable and, putting it bluntly, I think she will come back, because she had made no endeavour to go when she might otherwise have done so.  And that produces this observation:  our assessment of the future is founded in large part by our experience of the past, and the fact is she has attempted to abscond when she might have.  In those circumstances, I am going to permit travel for two weeks.  Mr O’Connell is right, that is more than enough time for the child to be away from the father at such a young age. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  4 June 2019