White and Andrews

[2011] FamCA 637

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS [2011] FamCA 637

FAMILY LAW – CHILDREN – Final orders made in 2007 – Order for the release of the child’s passport

Family Law Act 1975 (Cth)

APPLICANT: Ms White

RESPONDENT: Mr Andrews

FILE NUMBER: MLC 8839 of 2008

DATE DELIVERED: 25 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 25 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That pursuant to paragraph 19 of the orders of this Court made on 26 October 2007, the Registry Manager or her nominee is directed to release the passport of the child C born … December 1999 (“the child”) to her mother Ms White, at any time from 10.00 am on 5 September 2011 for the trip to Europe proposed to commence on 9 September 2011 and conclude on 9 October 2011 as set out in the mother’s affidavit filed on 27 June 2011.

2. That in lieu of the father’s week-end with the child on 16, 17 and 18 September 2011, the father shall spend time with the child on the week-end of 26, 27 and 28 August 2011, by way of make-up time.

3. That the mother shall forthwith arrange for service on the father of a sealed copy of these orders by registered mail to his address at Property D, Melbourne.

4. That within 14 days of the mother posting the sealed copy of these orders in accordance with the previous paragraph, the father shall have leave to apply to the Court to set aside the orders or any part of the orders.

5. That the reasons for judgment given by me this day shall be transcribed and retained on the Court file.

6. That the mother’s application filed 27 June 2011 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8839 of 2008

Ms White

Applicant

And

Mr Andrews

Respondent

REASONS FOR JUDGMENT

1. This is Ms White’s (“the mother”) application seeking an order that will enable her to take 11 year old C (“the child”) out of the country for a brief period. 

2. The parties have appeared before me on a number of occasions in the past, and I made detailed orders in relation to passport and travel arrangements in the form of final orders on 26 October 2007.  I made some other final orders in relation a passport application for the child, and for her passport to be held in the Court, on 24 April 2009.

3. The child’s mother has now filed an application in a case.  It was filed on 27 June 2011.  Strictly speaking, it should not have been an application in a case.  It should have been an initiating application.  I am not being overly troubled by that technical aspect.  It was supported by an affidavit also filed 27 June. 

4. I have looked carefully at the issue of service, because Mr Andrews (“the father”) has been called and has not appeared today.  The mother has given sworn evidence before me that she served the documents on him by post, and has made requests of him since as to whether he was coming to Court, but received no response.  The address to which she mailed the documents, is the address at which he has been living for some time.  It is the address at which the child stays, and the mother says the child was in fact staying at that address at the time she sent the documents.  The address is Property D, Melbourne.  

5. I have considered the Family Law Rules in relation to service in Chapter 7.  Although I am not satisfied that the proscribed procedure for service has been strictly followed, the Rules give me the leeway to take a practical approach.  On the strength of the sworn evidence that the documents were sent to the father, I propose making the orders sought, for the reasons I will give in a moment, but I will allow the father 14 days in which to return to the Court if he seeks to have the orders set aside. 

6. So far as the merits of the application are concerned, I note that travel – for both parents – has been an on-going and nagging issue.  The previous orders were supposed to deal with that, with a very simple regime whereby the child’s passport was kept at the Court and was only to be released either by consent of the parents or by way of Court order.  That was set out in paragraph 19 of the orders of 26 October 2007. 

7. Paragraph 20, however, provided that the wife should be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child was in her care, and that (from June 2009) the husband should be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child was in his care, provided that the husband actually accompanied the child. 

8. Paragraph 21 of the orders provided that the passport was to be returned to the Registry within 48 hours of the parent’s return, and paragraph 22 provided that each parent would provide the other with 21 days’ written notice by registered post of their intention to travel, including copies of the child’s return ticket, her itinerary, the intended dates, and the child’s contact details whilst overseas, and provided then too for telephone contact.

9. The mother has also handed up an email communication from the father dated 14 July 2011, at 12.44.  Whilst it was before he had received the documents, it gives some indication that he was not specifically and co-operatively addressing the issue of signing a release, but rather using it as an opportunity to be belligerent.  I emphasise that it was before he received the documents, but it supported her claim of the frustration she had felt in trying to organise this trip with the father since January of this year. 

10. The mother said that she started to organise the trip early, because, as she set out in her affidavit, she proposes getting married in the course of this trip.  The marriage is proposed in Europe.  Understandably, she wants the child to be present, and she has been trying to get this organised so that the trip can go without a hitch.  I don’t see any reason not to grant the application, subject to one query I have for the mother, which is about the time from school the child would miss.

RECORDED  :  NOT TRANSCRIBED

1. She would miss two weeks of school, and although that is generally not desirable, there are extenuating circumstances.  Having seen the itinerary of the trip, I am satisfied that the experiential and educational opportunities for the child are significant.  In addition, although it was set out in the mother’s affidavit that she would miss one weekend with her father if he is in Australia, and I do recall he spends very, very substantial times of the year in America, I can certainly rectify that with a weekend in lieu, which is what is suggested in the mother’s application.  So I am going to grant the orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 25 July 2011.

Associate: 

Date:  25 July 2011