White & Andrews (No 2)

[2012] FamCA 1130

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS (NO. 2) [2012] FamCA 1130

FAMILY LAW – PRACTICE AND PROCEDURE – leave granted to proceed ex parte.
FAMILY LAW – CHILDREN - release the child’s passport

Family Law Act 1975 (Cth)

APPLICANT: Ms White

RESPONDENT: Mr Andrews

FILE NUMBER: MLC 8839 of 2008

DATE DELIVERED: 29 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 29 November 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 ex parte with paragraph 1 of her Application in a Case filed 5 October 2012.

2. Until further order paragraph 5(d) of the order made 27 October 2007 be and is hereby suspended.

3. Pursuant to paragraph 19 of the said order 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 17 December 2012 for the trip to South East Asia proposed to commence on 26 December 2012 and conclude on 15 January 2013.

4. Paragraph 21 of the said order be varied to provide that the mother return the child’s passport to the Melbourne Registry of the Family Court of Australia by no later than 11:00 am on 25 January 2013.

5. The mother’s Initiating Application filed this day and her Application in a Case filed 5 October 2012 be adjourned for further hearing in the Judicial Duty List at 10:00 am on 25 January 2013.

6. The applicant mother serve a sealed copy of her Initiating Application filed this day, her Application in a Case and her affidavit filed 5 October 2012 and a sealed 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 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. In this matter the mother has filed an Application in a Case in which she seeks the release of her daughter, C’s (“the child”) passport for the purposes of overseas travel over the coming Christmas school holidays. The child is 13 years of age and lives with the mother. This is at least the sixth occasion on which the mother has had to make an application to the Court to obtain the release of the child’s passport.  On 26 October 2007, Dessau J made final parenting orders. Those orders provided that the child would live with the mother and spend time with the father at various specified times, but in particular in relation to this application during each of the long summer holidays from 3:00 pm on 25 December until 6:00 pm on 2 January. 

2. The orders also provided that the father be permitted to take the child out of the Commonwealth of Australia during the June school holidays, but not at other times.  It is therefore clear that the time the father was to spend with the child at or during the Christmas school holidays was to take place in Australia.  The father is now living in the United States and has been living in the United States since August 2011 and has spent no time with the child since that date. 

3. This matter was before me in August 2012, again that was an application for the release of the child’s passport to enable the mother to travel overseas with the child and her new partner.  The mother is proposing on this occasion leaving on Boxing Day to travel to South East Asia returning to Australia on 15 October 2013.  Obviously enough the proposed travel plans would overlap the father’s time if he were to exercise that time. 

4. The father however, in response to the mother’s request that he advise her whether he proposed to exercise time with the child this Christmas, has indicated that he will not be returning to Australia.  He has not met the requirements as such of the orders that he notify her in the event that he proposes to resume exercising time with the child and although he has now proposed that his sister should travel to the United States with the child for a period of some weeks over the Christmas school holidays, he has not brought any application to that affect or sought to vary the existing orders to enable that to occur.   

5. In all of the circumstances given that the father has not given notice of his intention to resume spending time with the child, does not propose to travel to Australia, or has not sought to vary the orders for the purposes of the child travelling to the US as he has proposed, I propose to make an order varying the existing order to permit the mother to travel overseas with the child leaving Australia on Boxing Day and returning to Australia on 15 January 2013.  The mother also seeks in her application to discharge the order that requires the passport to be held by this Court. 

6. The mother has on numerous occasions had to apply to have that passport released.  Clearly she has travelled overseas on a number of occasions with the child and has returned to Australia and there would appear to be no risk of her not returning to Australia and in any event, the father doesn’t live in Australia and has not been spending time with the child pursuant to the orders. 

7. I am prepared, although he has not been served with the application for the variation of the time this Christmas, to make those orders as it is clear from the emails that he is aware of the proposal and that he is not intending to exercise his time with the child in Australia, however I am proposing to require him to be served with this application and a copy of my order of this day both by registered mail to his postal address in the United States and also by email forwarded to his sister, Ms G Andrew’s email address and will deal with the remainder of the mother’s application on 25 January 2013 in the Judicial Duty List subject to any material that the father may file prior to that return date in January 2013. 

8. I will give the mother leave to proceed with her application for the release of the passport on an ex parte basis. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 November 2012.

Associate: 

Date:  8 February 2013