Whipp & Richards

[2007] FamCA 1324

FAMILY COURT OF AUSTRALIA

WHIPP & RICHARDS [2007] FamCA 1324

FAMILY LAW – CHILDREN – Relocation from Australia to USA – Appropriate forum – Both parents habitually reside in the USA, but have been in Australia since the birth of the child three months before hearing – inference made that parenting applications would be made in a court of competent jurisdiction in the USA - orders made for the return of the parties and the child to the USA

FAMILY LAW – CHILDREN – With whom a child spends time – orders made for father’s time pending relocation

FAMILY LAW – CHILDREN – specific issues – registration of father’s name on birth certificate – order made for inclusion of father’s name on child’s birth certificate to be considered by Registrar

Family Law Act 1975 (Cth)

APPLICANT: Ms Whipp

RESPONDENT: Mr Richards

FILE NUMBER: SYC 4363 of 2007

DATE DELIVERED: 4 July 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Mushin J

HEARING DATE: 4 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

Pending and until the assumption by a Court of competent jurisdiction in the state of New York in the United States of America, of all issues regarding parenting of the child … , born on … March 2007, IT IS ORDERED BY CONSENT:

1. That the parties have equal shared parental responsibility of and for the said child.

2. That the parties be granted leave to remove the child from the Commonwealth of Australia upon the following terms:

   (a)That the parties travel together with the child as directly as is feasible to the state of New South Wales by way of Los Angeles as soon as reasonably practicable, such travel to be on flight QF107 departing Sydney on Monday, 9 July 2007; and

   (b)That within 72 hours of arrival in New York, the parties submit themselves to a Court of competent jurisdiction there at in relation to the parenting of the said child.

3. That forthwith upon the said Court assuming the said jurisdiction, these orders be, and are thereupon discharged, without further application. 

4. That any order pursuant to which the parties or either of them are restrained from removing the child from the Commonwealth of Australia, be, and is hereby discharged, to enable travel in accordance with these orders.

IT IS FURTHER ORDERED:

1. That between now and the said departure from the Commonwealth of Australia the father spend time with the child for no more than one hour on each of Thursday, 5 July; Friday, 6 July; Saturday, 7 July; and Sunday, 8 July 2007, and for that purpose the father be and is hereby authorised to remove the child from the mother's present residence for the purpose of taking her for an outing, provided, however, that such outing not take place in the case of either inclement weather, or the child's care requirements or other like factor.

2. It is requested that the Registrar of Births, Deaths and Marriages of the state of New South Wales consider the inclusion of the father's name on the birth certificate of the said child. 

3. To give full effect to paragraph (6) hereof, the mother forthwith do all things and sign all documents necessary to enable the said Registrar's consideration referred to therein. 

4. The Court will advise the Australian Federal Police of the removal of the watch list order, and the Court will engross these orders.

5. All the costs of an incidental to the child's flight in accordance with these orders be shared equally between the parties.

6. All documents produced on subpoena in these proceedings be retained by the Sydney registry of the Court, and be made available to any Court of competent jurisdiction of the United States of America upon request, provided, however, that in the event that no such request is received within a period of three months, such documents be thereupon returned to the person producing the same.

7. There will be no orders as to costs. 

8. That all applications be otherwise dismissed and removed from the list of cases awaiting hearing.

9. That liberty be reserved to either party to apply on short notice, any such application to be made in the first instance to Mushin J if reasonably available, and if necessary by telephone or video link.

IT IS CERTIFIED THAT

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4363 of 2007

MS WHIPP

Applicant

And

MR RICHARDS  

Respondent

REASONS FOR JUDGMENT 

1. These proceedings have come before me in the Judicial Duty List on applications relating to the three-month-old child of the parties.

2. The mother is an Australian citizen. The father is an American citizen. The parties have lived together in New York in the United States of America. On the basis of all the documents it is clear that they regard that as their natural place of living.

3. The mother, who has parents living in Sydney, came to Sydney apparently for the purpose of giving birth to the child. The father appears to have followed, and there was then a question of how, when and whether the child should be returned to New York. 

4. Bound up in that question was the question of whether a trial should take place in this Court for the purpose of deciding parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth).

5. During discussion with both counsel representing the parties before me today, the position was arrived at whereby both parties are to return on the same flight to America leaving Sydney on Monday, 9 July 2007, and there submit themselves in New York to a Court of competent jurisdiction for the purpose of consideration and determination of the question of the best interests of the child. 

6. In the course of discussion with that fundamental issue having been determined, at least in part as a result of reasonably strong expressions of view by me from the Bench, several what I might call ancillary issues have been raised. The first of those was the question of the registration of the child's birth in the State of New South Wales pursuant to the law of that State.

7. It is common ground that the mother registered the child, but in doing so did not include the father's name on the certificate of registration. Through counsel the mother submitted that the father had previously raised issues of paternity, and she accordingly wished to reserve her position on that issue. 

8. However, also through counsel the father readily conceded that the question of his paternity of the child was not an issue from his point of view, thereby in my view, accordingly, taking away that issue from the mother. Despite several strong expressions of view by me, the mother did not appear to be receptive to including the father's name on the birth certificate. That may become an issue later.

9. By virtue of the State legislation and the fact that there is now no issue with regard to paternity, while the parties are within this State there seemed to be no reason why the registration of birth should not be amended to provide the father's name on that certificate. 

10. Counsel for the mother submitted that his client neither consented nor opposed the making of such an order, and by virtue of the fact that the parties were ad idem on all the necessary facts such as would give rise to an amendment of the certificate, it seems to me that it is appropriate that an order should be made.

11. The order will be in terms of a request to the Registrar of this State to consider the registration of the father on the birth certificate on the basis that I do not regard this Court as having jurisdiction to direct the Registrar to make such an amendment. I do not regard the reference to the word "Court" in the relevant legislation as being a reference to this Court. Rather, it is a reference to the State Courts of New South Wales.

12. During discussion, I had postulated the position in which there should be an order for equal shared time of the child as between the parties. On further consideration I accept the submission of counsel for the mother that that is quite impractical, and I have revised my view.

13. I sought the proposals of each of the parties. The father proposes that he have the child for one hour twice a day for the four days between now and the departure on Monday. In my view, that is excessive in the circumstances in which the mother would have to be present, at least in the vicinity. She is breastfeeding the child. And also that at least part of that time would be spent within the household of the mother's parents, with whom the mother is presently living.

14. I am informed and accept that relations between the maternal grandparents and the father are not as cordial as they might be, and I think that it is therefore an unnecessary and unwarranted imposition on them.

15. There are four days between now and the departure, and I have decided in those circumstances that the father should be able to see the child for one hour of each of those four days between now and the departure.

16. The position of the trip, which is a long period on the plane, is something which I have considered. I think that attempting to make orders in respect of the father spending time with the child while in transit, over international territory, including the Pacific Ocean, is far too difficult. Problems of enforcement would be out of the question, and the potential disruption to other travellers and crew would be such as to militate against any such order, and I have accordingly decided against it.

17. Finally, there is the question of the inspection of certain documents produced on subpoena, served on behalf of the father.  I understand that those documents include medical records from a paediatrician, and I think an obstetrician.  It is asserted on behalf of the father, without having inspected those documents, that they contain relevant matters. 

18. I have not inspected them, and nobody at this stage is able to say that that submission is correct.  There is no presently justiciable issue regarding the best interests of the child before this Court as a result of the agreements and other decisions which have been made in these proceedings, and accordingly, in my view, it is not appropriate as being contrary to the child's best interests that that inspection should be allowed within this jurisdiction.

19. It appears on all of the available evidence to be a strong inference at least that the father will commence proceedings in New York upon the parties' return.  In the event that he persuades the judge hearing those proceedings that the documents are relevant to that Court's consideration, it is open for that Court to make a request to this Court for provision of the documents.

20. In making the decision I do, that is that this Court will retain the documents pending request from the New York Court, I do so only by way of comity and collegiality between this Court and the American Court, which will presumably hear this matter.

21. I certainly make no decision one way or another as to the potential relevance of those documents, and as to the potential for - as to the entitlement for inspection - copying, or any other relevant issue. I make it clear that those are issues exclusively for the American Court.  

22. However, I will require those documents to be retained by this Court pending any such request, and if no request is forthcoming within a period of three months from this time, the documents will be returned to the party who produced them.

23. I am aware and cognisant of the submission made on behalf of the mother that this might make the institution of proceedings in America a higher possibility, but if my reading of the situation is correct, that determination may well have already been made on behalf of the father.  In any event, it is my view that because of the possibility of the relevance of these documents, and the desirability of comity that I make the order which I have proposed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  12 November 2007