White and Andrews

[2016] FamCA 566

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS [2016] FamCA 566

FAMILY LAW – CHILDREN – Airport watch list order – application by the mother for a discharge of a watch list order restraining the father from removing the child from Australia – where the child is now 16 years of age – where the child has previously travelled overseas with the mother and has experience delays as a result of the watch list order – where the father has not seen the child for five years – final orders made discharging the watch list order

Family Law Act 1975 (Cth)

APPLICANT: Ms White

RESPONDENT: Mr Andrews

FILE NUMBER: MLC 8839 of 2008

DATE DELIVERED: 7 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 June 2016

REPRESENTATION

THE APPLICANT: In person with Mr Eidelson as amicus curiae

THE RESPONDENT: No appearance

Orders

1. That the Watch List order made 19 July 2013 be discharged.

2. That the mother effect service upon the father of:

   (a)       This order;

   (b)       Initiating Application filed 6 April 2016; and

   (c)       Affidavit of the mother filed 6 April 2016

   by forwarding copies to him by email at …

3. That the father be at liberty to file an application and supporting affidavit seeking orders in relation to the orders made herein this day, within 21 days of service upon him pursuant to order 2 above.

4. That the mother’s Initiating Application filed 6 April 2016 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym White & Andrews has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8839  of 2008

Ms White

Applicant

And

Mr Andrews

Respondent

REASONS FOR JUDGMENT

1. The matter of White & Andrews comes before me today in a Judicial Duty List upon the Initiating Application of the mother filed 6 April 2016.  That application seeks an order that the orders made on 19 July 2013 placing the child of the relationship upon the Watch List be discharged.  The application is supported by an affidavit of the mother filed the same day.  That affidavit sets out the circumstances in which the application is made. 

2. The child, the subject of the order, is C who is aged 16 years and a Year 11 student.  She has been the subject of the Watch List order since 19 July 2013. 

3. The mother deposes that the child travels overseas regularly and, as a result, has experienced the situation where she is delayed in her departure from Australia by virtue of the Watch List order.  C is anticipating travelling overseas on a school excursion in December of this year and it is for that travel that she particularly seeks that her name be removed from the Watch List, and having to answer to the Federal Police.  She wishes to avoid the embarrassment of being pulled aside in front of her peer group when departing Australia on that excursion. 

4. The position with respect to the father is that he has been residing in the United States of America since 2011.  He has not had any physical time with the child since that time. 

5. The Watch List order, as drafted, was specifically designed to restrain the father from removing the child from the jurisdiction.  Hence, from the mother’s perspective and from the child’s perspective, there is little utility in maintaining that order in circumstances where it is the child and her mother who are proposing to travel overseas from time to time and, as I have noted already, particularly for the purposes of this school trip. 

6. The mother has been very helpfully assisted by Mr Eidelson this morning, who has appeared amicus today to assist her. 

7. The reason for that is that at the commencement of the hearing before me, I raised with the mother the question of whether or not she had, in fact, given notice of her application to the father and served the application upon him.  The position is that the mother has a current email address for the father, he having emailed the child as recently as late April of this year.  The mother has caused an email to be forwarded to that email address today seeking a response from the husband as to whether or not he would agree to the discharge of the Watch List order. 

8. Whilst the father did not respond to that direct inquiry by the mother, the mother has received a text message from the child indicating that the father has, today, using the same email address, forwarded a message to the child inquiring as to her welfare.  What is submitted is that in those circumstances, it is appropriate that I make the order discharging the Watch List order, that I require the mother to effect service of that order together with the application upon the father, and that he have liberty to apply within 21 days of service of the order upon him.  Having regard to the history which I have outlined, I am satisfied and agree that that is an appropriate course. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 June 2016.

Associate:  Alison Power

Date:  7 June 2016