WHITE & ANDREWS

[2012] FamCA 747

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS [2012] FamCA 747

FAMILY LAW – CHILDREN – ex parte Application for the release of the child’s passport

Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms White

RESPONDENT: Mr Andrews

FILE NUMBER: MLC 8839 of 2008

DATE DELIVERED: 13 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The mother have leave to proceed with her Application in a Case filed 4 July 2012 for the release of the passport of the child, C born … December 1999 for the purposes of travel to South East Asia.

2. Further service of the said Application upon the respondent father be and is hereby dispensed with.

3. Pursuant to paragraph 19 of the orders made 26 October 2007 the Registry Manager or her nominee is directed to release the passport of the child C born … December 1999 to the applicant mother, Ms White, at any time from 10:00 am on 12 September 2012 for the trip to South East Asia proposed to commence on 17 September and conclude on 2 October 2012.

4. The applicant mother serve a copy of this order on 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 at …@gmail.com

5. The mother’s Application in a Case filed 4 July 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym White & Andrews as 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. In this matter, Ms White (“the mother”) has filed an Application in a Case seeking firstly leave to issue the application and secondly, the release of her daughter C’s (“the child”) passport to allow her to travel on a family holiday to South East Asia between 17 and 29 September 2012. 

2. Prior orders were made by this Court on 26 October 2007 requiring the mother to deliver the child’s passport to the Melbourne Registry of the Court pending further order or the written consent of the father.  The order further provided that both the mother and Mr Andrews (“the father”) be permitted to travel outside the Commonwealth of Australia during periods that the child was in their respective care, subject in the father’s case to the requirement that he accompany the child.  Paragraph 24 of that same order restrained the parties from issuing further proceedings without leave of the Court. 

3. The mother has filed an affidavit of service in which she deposes to having served the father by electronic means on 25 July 2012.  She has also deposed that she emailed the father on 3 July 2012 advising him of her travel plans.  The email is annexed to her affidavit which was sworn and filed on 4 July 2012. 

4. The mother has also provided me with a number of emails passing between the parties which make it clear that the father is aware both of the hearing today and the proposed travel to South East Asia.  He advised the mother by email dated 27 July 2012 that he has an address for service being Property R, USA but that he will not be able to access that address between 7 August 2012 and 21 August 2012.  He further advised that he will be responding to her application and that he may seek to be legally represented.  The father is not here today, nor is he represented.

5. The mother has filed an Application in a Case when in fact, as there are no other proceedings on foot, she strictly speaking should have filed an initiating application. 

6. Chapter 7 of the Family Law Rules 2004 (Cth) do not apply when a person on whom it is sought to serve documents lives in a foreign jurisdiction. Service in a foreign jurisdiction is governed by Regulation 12 of the Family Law Regulations 1984 (Cth). I am, however, satisfied that the father is aware of the proceedings this day and the nature of the orders sought by the mother. Insofar as I have the inherent jurisdiction to control proceedings in my Court, I propose to deal with the application today notwithstanding that the application is not technically in the appropriate form and that service has not been effected in accordance with the Regulations.

7. I have before me the mother’s affidavit filed on 4 July and she has given some brief evidence today.  It is her evidence that the father travelled to the United States in August 2011 and that he has not spent time in person with the child since that time.  He does, however, speak to her by telephone each weekend.  The orders that were made on 26 October 2007 permit the mother to travel outside of the Commonwealth of Australia, and it is her evidence that this is the fifth occasion which she has sought the release of the passport to enable her to do so. 

8. On this occasion she proposes to travel to South East Asia on 17 September 2012, returning to Australia on 28 September 2012.  However, in her application, she seeks that the period be extended, commencing on 12 September to 2 October, in case there are any delays or other unforseen matters that might arise that would mean that either they left Australia prior to 17 September or returned to Australia later than 28 September 2012. 

9. The mother is proposing to travel in the third term school holidays and the orders provide that the child remain in her care during the third term school holidays.  I see no reason why the child’s passport should not be released to her to enable the proposed trip to take place.  I have read the various emails and, whilst the father hasn’t signed a consent to the travel and does appear to object to the proposed release of the passport, he does not offer any cogent reason as to why it should not be released.  The emails would appear to be more of an attack upon the mother generally rather than dealing directly with the question of the release of the passport and, in all of the circumstances, I am satisfied that I should give leave to the mother to proceed with her application for the release of the passport and make the orders she seeks allowing her to travel with the child to South East Asia. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 August 2012.

Associate: 

Date:  4 September 2012