Waters and Browning

[2009] FamCA 187

FAMILY COURT OF AUSTRALIA

WATERS & BROWNING [2009] FamCA 187

FAMILY LAW – CHILDREN – Issue of passport – Undertaking of mother

Family Law Act 1975 (Cth)

APPLICANT: MS WATERS

RESPONDENT: MR BROWNING

FILE NUMBER: MLC 13805 of 2007

DATE DELIVERED: 4 MARCH 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 4 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

ORDERS

Pursuant to the Australian Passports Act 2005 and the Court being satisfied that in the particular circumstances of this case an Australian passport should issue for the child P born … November 2002 for travel in and out of the Commonwealth of Australia

IT IS ORDERED:

1. THAT the mother and father have equal shared parental responsibility for the child P born … November 2002 (“the child”).

2. THAT the child live with the mother.

3. THAT the child spend time with and communicate with the father as the parties agree.

4. THAT the mother be authorised to apply, on behalf of the child for an Australian passport to issue to permit her to travel in and out of the Commonwealth of Australia.

5. THAT an Australian passport be forthwith issued permitting the child to travel internationally.

6. THAT the consent of the father to the issuing of such Australian passport for the child be forthwith dispensed with and P be now permitted to leave the Commonwealth of Australia without the consent of the father.

IT IS REQUESTED:

1. THAT the Federal Department of Foreign Affairs and Trade forthwith issue an Australian passport in the name of P born … November 2002 and that such passport be expedited in its preparation.

2. THAT the mother travel by the organised flights with Emirates directly to the United Kingdom and for the purposes of the overseas holiday between 7 May 2009 and 26 June 2009 the child is to remain within the United Kingdom.

3. THAT otherwise the mother’s application filed 12 February 2009 and the father’s response thereto are dismissed.

IT IS FURTHER ORDERED:

1. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

2. THAT the mother’s undertaking given to the court, under her oath, be likewise transcribed, placed upon the court file and made available to the parties.

IT IS NOTED:

A.THAT the passport sought for the child by her mother is to facilitate travel for a family holiday in the United Kingdom between 7 May 2009 and 26 June 2009 (inclusive).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13805 of 2007

MS WATERS

Applicant

And

MR BROWNING

Respondent

REASONS FOR JUDGMENT

1. In the matter of Waters and Browning, I have an application before me by the mother seeking a passport for the youngest child of the marriage, P, born in November 2002.  The background to that application is that her previously issued Australian passport has lapsed. 

2. The other two children, Y, aged 10, and T, aged 8, both have Australian passports.  Each of the three children have British passports. 

3. The application before the court today was issued by the mother on 12 February 2009.  She has filed an affidavit in support, which I have read.  Otherwise, the father has opposed that application and filed a response on 3 March 2008 and an accompanying affidavit, which I have read.

4. The essence of the dispute is that the mother proposes the three children leave on 7 May this year to celebrate her sister's 40th birthday and her father's 70th birthday, which coincides with her 39th birthday.  That will be in England.  The tickets have been purchased, the mother says by her parents, who have limited and modest financial assets.  They have been paid in full.  They are return tickets.  The itinerary is attached. 

5. The timetable of this matter, according to the mother is that she first raised the issue with the father on 14 July 2008.  I have carefully read paragraphs 14, 15 and 16 of her affidavit.  The father's response thereto is somewhat limited, although generally it is a denial as to dates and he believes that all events more recently occurred.  Indeed the father floated with the court, but had no evidence of, an alleged schoolyard conversation between the mother and some other unnamed lady purporting to state that the mother's intention is not to return the children to Australia.  I must act on the evidence before me. 

6. These issues are always difficult where parents cannot and will not agree.  This case has a particular background, which I have read and which the father covers in detail in his material.  England is a member of the Hague Convention.  The children will not be allowed to go or be taken to any other country, and the children are not to be separated from each other.

7. On balance, given the reason for the travel, the limited duration of travel, the fact that the mother is joint proprietor of a property, being the S property, here in Australia and has no other assets of which the court has any knowledge then I conclude that it is in the best interests of the children and it is proper and reasonable that she be permitted to travel with P.  The mother has agreed to an undertaking to return P.

8. I well understand there is some dispute as to what is the equity in the S property; the father would have it as low as $80,000, the mother as high as a $140,000.  That in any event is subject to various caveats lodged on the property of claimed financial interests.  Ultimately, there is little money available either way and the securities are only available to the extent that there are assets. 

9. One matter of some comfort in this case is that previously the parents have been able to agree on children's orders, including all time spent with and communication.  That must give some hope for reasonable discussion.

10. I therefore indicate that I will have a transcript prepared of the oral undertaking given by the mother to the court this day.  That will be kept on the file.  That is an undertaking to return the children punctually in accordance with the flight schedule, and for them to attend no other country.  I am satisfied that the father does know of their telephone numbers and email and there will be discussions or communications at least each four days, or otherwise as the parents may agree.

11. For those limited reasons, which likewise I will have transcribed and placed on the court file, I will make the following orders in the matter of Waters and Browning in the matter of the child P, born in November 2002.  The parties will be described as mother and father.  The address for the mother is …, S, Victoria.  The address for the father is …, M, Victoria.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: