Walker and Walker

[2008] FamCA 664

FAMILY COURT OF AUSTRALIA

WALKER & WALKER [2008] FamCA 664

FAMILY LAW – CHILDREN – Ex Parte – Removal from Airport Watch List

Family Law Act1975 (Cth)

APPLICANT: Ms Walker

RESPONDENT: Mr Walker

FILE NUMBER: MLC 5653 of 2008

DATE DELIVERED: 25 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 June 2008

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That paragraphs 1 and 2 of the orders made on 22 November 2004 relating to the children T born … October 1997 and D born … June 1999 (but shown in the Form sent to the Australian Federal Police as an incorrect date in June 1999 and in which his surname is spelt incorrectly) be forthwith discharged.

2. That the Court forthwith notify the Australian Federal Police of these orders.

3. That the applicant wife have leave to proceed in the absence of the husband.

4. That my reasons for orders this day be transcribed and a copy be placed on the court file.

5. That the application filed on 23 June 2008 be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5653 of 2008

MS WALKER

Applicant

And

MR WALKER

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the mother on 23 June 2008.  It came into the duty list before me that day on the basis of some urgency and Registrar Kaur was satisfied of that urgency to abridge the time.  In fact it came in also on the basis that it was to be heard on an ex parte basis, as the father is currently a permanent resident of New Zealand.  The application was fairly simple.  It seeks that T who was born in October 1997 and D born in June 1999 be permitted to leave the Commonwealth of Australia.  Ironically enough the purpose of the trip is so that they can go to spend some time with the father in New Zealand.

2. The problem is quite simple.  In 2004 parties consented to an order that they be precluded from doing just what the parties now want to do and to that end an order was made directing the Australian Federal Police to leave the names of the children on the airport watchlist.  It now transpires that the husband obviously wants the children to come to see him, and it is obviously of some urgency because it is school holiday time.

3. I could not deal with the matter on 23 June because there was no evidence of the existence of the order.  The position seemed to be that when final orders were made in the Federal Magistrates Court in 2005 all parenting orders were discharged.  The Australian Federal Police have adopted the view, and I might say quite sensibly, that that did not discharge the airport watchlist or the injunctions precluding either party from removing the children from the Commonwealth of Australia. 

4. On 23 June I ordered the court to produce the Federal Magistrates Court file which because it had been concluded for some years was in archive storage.  So to that end I had to make the mother come back today.  In addition I was uncomfortable about having the matter determined on an ex parte basis because of the serious nature of allowing children to travel internationally notwithstanding Australia's arrangements with New Zealand.  I have ordered the mother to serve copies of all documents on the father.  She told me at the time that he was a willing party to all of this and would sign whatever was necessary to prove that.

5. The mother has apparently sent to the father copies of all of the documents that she relied upon.  I am satisfied that he is aware of those documents and the proceedings today, because I have before me given to me by the mother a typed letter which has been signed by the father and which has been witnessed and declared in the District Court in New Zealand.  Whilst that could also, if I was a cynic, be concocted, I am satisfied looking at the application for divorce and the other Federal Magistrates Court documents that the father filed in 2004 and 2005, although I do not profess to be a handwriting expert, it is pretty hard to say that the signatures are not identical.

6. The father has a rather unique style of writing.  The letter that he has signed dated 23 June 2008 makes quite clear that he gives the consent for the discharge of the airport watchlist order.  It makes sense also to permanently discharge that order rather than just do it for the period sought by the mother.

7. I will direct that the letter from the father be marked as exhibit W1 and that it remain on the court file.  It is important then to briefly track the progress of the case and why it was difficult to simply make the orders on 23 June.  On 22 November 2004 the parties came before Hartnett FM and were represented. 

8. It seems that they were able to consent to a variety of orders that day, and I am not at all sure whether the order relating to excluding the parties from travelling with the children out of Australia was a consent order or not, and I am not sure that it really matters very much.  Needless to say, Hartnett FM made an order that each of the parties was restrained from removing the children from the Commonwealth of Australia.  Her Honour on that occasion adjourned the proceedings for a final hearing on 17 March 2005. 

9. The Federal Magistrates Court file does not show what happened on that return date, but for reasons which are not easy to follow the case came back before the same federal magistrate on 24 May 2005.  On this occasion the mother did not attend but a representative appeared for the father.  There was obviously a dispute at that stage in relation to the children because Hartnett FM made an order for the appointment of an independent children's lawyer.  Her Honour then adjourned the final hearing of the proceedings between the parties till 16 November 2005. 

10. Again, for reasons which are not at all clear, the matter was not listed on 16 November 2005 but 17 November 2005.  On that day the parties did not attend although Mr Lynch as the independent children's lawyer did and what appears on the file are final orders by consent in relation to all of the parenting matters.  However, one of those orders reads "that all previous parenting orders be discharged."  To the extent that the orders made in 2004 injuncting the parties from removing the children from Australia is a parenting order then by the orders made on 17 November 2005 that order was discharged. 

11. Because of the problem with the Australian Federal Police who obviously were not aware, even if the parties thought they had discharged that order, they are not obliged to try and interpret things.  They have a serious responsibility and for that reason if parties do discharge those sorts of orders it behoves the parties to make it abundantly clear so that apart from anything else the court can actually send to the Australian Federal Police a notice indicating that the order has been removed.

12. Because of the fact there is some doubt in my mind as to whether in fact the order of 17 November 2005 did discharge the injunctive order I propose to make a specific order today. In my view having regard to what I have read in the affidavit of the mother, particularly about the health of her child and the fact that the child's father is so far away, and this is possibly a one-off opportunity for a relationship to continue onto a face to face basis it is important that the order be made. I am quite satisfied having regard to all of the matters in section 60CC of the Family Law Act that there is no argument between the parties that these orders are anything other than in the best interests of them. In those circumstances I propose to make an order simply discharging the order made in 2004.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 June 2008