WHITE & ANDREWS

[2013] FamCA 45

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS [2013] FamCA 45

FAMILY LAW – ORDERS – discharged to allow mother to be responsible for the child’s passport

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment for further hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms White

RESPONDENT: Mr Andrews

FILE NUMBER: MLC 8839 of 2008

DATE DELIVERED: 8 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 25 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person by telephone

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. Paragraphs 19 and 21 of the order made 27 October 2007 be discharged and thereafter until further order the mother hold and be responsible for the child C’s passport.

2. Paragraphs 20 and 22 of the order made 27 October 2007 be suspended until further order.

3. Until further order the applicant mother be at liberty to travel outside of the Commonwealth of Australia with the child C born … December 1999 during any and all periods the child is in her care.

4. Until further order the respondent father Mr Andrews born … 1965 by himself, his servants or agents, be and is hereby restrained from removing the child C born … December 1999 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

5. The Court forward a copy of this order to the Australian Federal Police.

6. The matter be adjourned for further hearing before Macmillan J in the Judicial Duty List at 10.00 am on 11 April 2013.

7. By 4.00 pm on 22 February 2013 the respondent father file and serve any further affidavits upon which he proposes to rely.

8. By 4.00 pm on 22 March 2013 the applicant mother file and serve any affidavits in response upon which she proposes to rely.  

9. The applicant mother serve a sealed copy of her Application in a Case filed 5 October 2012, her Initiating Application filed 29 November 2012, her affidavit filed 5 October 2012 and a copy of this order upon the respondent father as soon as practicable by the following means:

   (a)By pre-paid post to Property R, USA; and

   (b)By email addressed to the respondent father care of the email address of his sister Ms G Andrews.

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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8839  of 2008

Ms White

Applicant

And

Mr Andrews

Respondent

REASONS FOR JUDGMENT 

1. The husband and the wife in this case separated in or about January 2000 and have been involved in litigation in both the Federal Magistrates Court of Australia and this Court on many occasions since their separation. There is one child of their relationship who is now 13 years of age. The wife appeared in person as did the husband by telephone from his home in the United States of America as he said that he had been advised that it would put his status in the US in jeopardy if he were to leave that country.

2. There has, in this case, been a significant change in the circumstances of the husband and the wife and the child since the making of the final orders in 2007. In August 2011 the husband travelled to the US and according to the wife has not returned to Australia. Accordingly he has not spent time with the child pursuant to the orders since his departure for the US.

3. On 26 October 2007 Dessau J made detailed orders with respect to the child’s care. They included an order that the husband and the wife retain equal shared parental responsibility for the child, that she live with the wife and that the husband spend time with her each alternate weekend from after school on Friday until the commencement of school on Monday and on special occasions and during school holidays. I note that in my extempore reasons for judgment delivered on 29 November 2012 I said that the orders provided that the husband be permitted to travel overseas with the child during the June school holidays in each year. The order in fact permits the husband to travel overseas with the child during his holiday time as and from June 2009 subject to the other requirements of the orders. However, her Honour also ordered that in the event that the husband is not available to spend time with the child on two or more consecutive occasions pursuant to her orders he be required to provide the wife with 21 days written notice of his intention and his capacity to resume spending time with the child. This order overrides the previous orders which provide for him to spend time with the child and to travel overseas with the child. The husband has clearly not spent time with the child on more than two consecutive occasions. The notice requirement would give the wife sufficient time to issue proceedings seeking to vary or discharge the orders in the event that she considered the resumption of the husband’s time with the child not to be in the child’s best interests. Perhaps not surprisingly given what has occurred since August 2011 the mother says she does have reservations about the father recommencing his time with the child.

4. Of relevance for  the purposes of the proceedings before me today are the following orders:

   19.That the wife shall forthwith deliver the child’s passport to the Melbourne Registry of the Family Court of Australia to be held by the Court pending written further Order of the Court or consent by each of the parents for its release.

   20.(Not by Consent) That at any time the wife shall be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child is in her care pursuant to these Orders, and the husband shall be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child is in his care pursuant to these orders from June 2009, provided that the husband actually accompanies the child.

   21.That for the purpose of travel outside the Commonwealth of Australia pursuant to paragraph 20 of these orders, within 48 hours of the parent’s return to Australia the child’s passport shall be returned by that parent to the Melbourne Registry of the Family Court of Australia. 

   22.. That in the event that either parent intends to travel outside the Commonwealth of Australia with the child, that parent shall provide to the other parent 21 days’ written notice by registered post of their intention to do so, including providing copies of the child’s return ticket, itinerary, intended dates, and the child’s contact details whilst overseas AND IT IS NOTED that for the purpose of telephone communication pursuant to paragraph 6 of these orders, the parent travelling with the child shall be responsible for initiating telephone calls to the other parent at reasonable time on Wednesdays).

1. On 5 October 2012 the wife filed an Application in a Case in which she sought orders for the release of the child’s passport to enable her to travel with the wife and her stepfather to South East Asia during the Christmas holiday period. The proposed overseas travel included a period when the child would otherwise have been spending time with the father pursuant to Dessau J’s orders. However as I indicated in my reasons for judgment delivered on 29 November 2012 the father, in response to the mother’s request that he advise her whether he proposed to spend time with the child, advised the wife that he would not be returning to Australia. He had in any event not, as he was required to do pursuant to the orders, advised the wife of his intention to resume spending time with the child or demonstrated his capacity to do so.

2. The matter was listed for hearing in the Judicial Duty List before me on 29 November 2012. That day the wife also filed an Initiating Application. Although I was satisfied that the husband was aware of the Application in a Case and that I could deal with that application I was not satisfied that it would be appropriate to deal with the wife’s Initiating Application in which she sought final orders that she be responsible for the passport, that she be permitted to travel with the child not only at those times the child is in her care pursuant to the orders but also during those times when the husband fails to spend holiday time with the child and that the father be required to obtain the Court’s permission to travel overseas with the child.

3. On 29 November 2012 I made orders for the release of the child’s passport to enable her to travel overseas with the wife during the Christmas school holidays and otherwise adjourned the matter for hearing before me in the Judicial Duty List on 25 January 2012 when she and the child had returned from their overseas holiday. I also required the mother to serve sealed copies of her Application in a Case, her Initiating Application filed 29 November 2012, her affidavit filed 5 October 2012, and a sealed copy of my orders made that day. The documents were to be served by pre-paid post to the address which I note is the address on the husband’s Response and by email to his sister Ms G Andrew’s email address. The father alleges that he did not receive the Initiating Application. Although I have not made any findings as to whether he did or did not receive that application I propose in an excess of caution to require the wife to again serve the relevant documents, with the addition of the order I propose to make, upon the father.

4. The mother has made numerous applications to the Court for the release of the child’s passport. An order has been made on each occasion. I have heard and determined the last two of those applications and have made orders releasing the passport on each occasion.  The wife has returned the passport to the Registry on each occasion. As the mother deposes there is no evidence which suggests that the she is likely to be a flight risk and will not return to Australia with the child. The evidence demonstrates clearly to the contrary. The wife and the child live in Australia, the mother is employed in Australia and the mother says the child is thriving at school. There is no evidence before me which would suggest otherwise.

5. The wife says that she is unable to communicate with the husband and that he uses the issue of her overseas travel and the release of the passport to vent his anger at her and harass and abuse her. Although the evidence has not been tested and I cannot in those circumstances make any findings the emails she has annexed to her affidavit would certainly suggest that this might be the case.

6. On 19 January 2013 the husband filed what purports to be a Response to the Wife’s Application in a Case and an affidavit although I note that the purported affidavit is in fact what appears to be a selection of documents including copy emails, letters and transcript of previous proceedings and does not appear to have been sworn. The affidavit in its present form is not admissible. I have significant doubts about the relevance of the husband’s material and question how it is likely to assist me in this case. Although it is not totally clear from his Response the father appears to be seeking orders that the child spend holiday time with him in the US at the wife’s expense and that the wife travel with the child if required to do so. As I have indicated to the husband he will need to provide detailed evidence of his proposals for spending time with the child.

7. The wife was served with a copy of the husband’s answering material on 23 January 2013 and has not had the opportunity to respond to that material. Given my reservations about the husband’s material I propose to allow the husband time to file any further affidavits upon which he may seek to rely before requiring the wife to respond. The husband is on notice that his affidavits need to be relevant to the issues in dispute and in an admissible form. I propose to otherwise adjourn the wife’s Initiating Application and the husband’s Response for further hearing before me in the Judicial Duty List on 11 April 2013. 

8. However in the interim I propose to accede to the wife’s application that she be permitted to hold and be responsible the child’s passport. With respect to the wife’s application that she be permitted to hold the child’s passport the only assertions the husband made were that on three unspecified occasions, that he said he couldn’t put his finger on, the wife had not returned the child’s passport and that on one occasion she had been ordered to obtain a passport for the child but had not done so.

9. I am satisfied that in all of the circumstances the wife should not be put to the inconvenience and cost of applying for the release of the child’s passport each occasion she wishes to holiday overseas with the child. The husband has put forward no evidence on the basis of which I might conclude that the wife should not hold the child’s passport. The wife on the other hand has demonstrated on a number of occasions that the purpose for which she needs the child’s passport is for overseas holidays with the child and that she will on each occasion return to Australia with the child.  I am also satisfied that it is not appropriate in circumstances where the husband has left Australia with no immediate plans to return and is not spending time with the child pursuant to Dessau J’s orders.

10. Although Dessau J made provision for the child to spend time with the child and to travel overseas with the child this was at a time when the husband lived in Australia. Not only does he no longer live in Australia he has now not spent any time with the child since August 2011. It is clear that Dessau J’s orders do not take into account the current circumstances and in my view given those circumstances before there could be either a resumption of the previous regime or the child be permitted to travel overseas either with the husband or some other person he nominates, at his expense or the wife’s expense, the court would need to be satisfied that it would be in the child’s best interests for that to occur. The husband does not at this stage even have a specific proposal either to resume his time with the child or for any overseas travel. If he did provide the wife with the required written notification that he intended to resume spending time with the child it is clear from the wife’s affidavit that she would be likely to object and would seek at the very least the variation, if not the discharge, of the orders made by Dessau J with respect to the father spending time with the child.

11. I am satisfied in the circumstances that until there is proper evidence before the Court and the Court is in a position to consider whether it is in the child’s best interests to resume her relationship with the father, let alone to travel to the US or any other destination to visit the father, it would not be in the child’s best interests to travel overseas with the husband or any other person he proposes should accompany the child. In those circumstances I propose until further order to suspend the order permitting the husband to travel overseas with the child and to make an order restraining the husband and his servants or agents from taking the child out of the Commonwealth of Australia. I do not consider that this significantly disadvantages the husband in circumstances where he has no specific plans for the child to travel overseas.

12. It is fairly clear however that in circumstances where he has no immediate plans to return to live in Australia that the current orders are no longer appropriate and in all of the circumstances should probably be discharged. This is a matter than can be addressed at the further hearing of this matter.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 February 2013.

Associate: 

Date:  8 February 2013