Whitfield and Pirrip

[2009] FamCA 225

FAMILY COURT OF AUSTRALIA

WHITFIELD & PIRRIP [2009] FamCA 225

FAMILY LAW – CHILDREN – Variation of consent orders – Mother seeking leave to travel overseas and hold children’s passports – Mother has strong connection to Australia – Held Mother is unlikely to abscond – Application acceded to – Further order allowing children to travel in the future for schooling or sport

APPLICANT: Ms Whitfield

RESPONDENT: Mr Pirrip

FILE NUMBER: BRC 1478 of 2009

DATE DELIVERED: 23 March 2009

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 23 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Applicant Mother appeared on her own behalf

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of the Respondent Father

Orders

IT IS ORDERED THAT:

1. Order (13) of the Order of Registrar Stevens dated 27 July 2007 is discharged.

2. Not less than twenty-eight (28) days prior to the Mother’s departure with the children, J born … November 1997 and C born … April 2003 for a holiday visit outside Australia, the Mother shall supply to the Father in writing:

   a.the date and point of departure from Australia;

   b.the date and point of arrival in Australia;

   c.the Mother’s itinerary;

   d.contact details to enable the Father to communicate with the children

   during the absence from Australia on travel overseas; and

   e.evidence of the Mother holding a return ticket for the children.

3. The children or either of them be at liberty to travel overseas without their Mother provided such travel is in relation to educational or sporting purposes.

4. Order (14) of the Order of Registrar Stevens dated 27 July 2007 is discharged.

5. The Registrar of the Brisbane Registry of the Family Court of Australia to forthwith release to the Mother the children’s passports.

6. The Mother is at liberty at all times to retain the children’s passports in her possession.

7. The Mother be at liberty to apply for a renewal of the children’s passports notwithstanding the consent of the Father may not be forthcoming.

8. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1478 of 2009

MS WHITFIELD

Applicant

And

MR PIRRIP

Respondent

REASONS FOR JUDGMENT

1. I propose to accede to the application that has been filed in this matter.  I will give brief reasons for that decision.

2. The parties commenced cohabitation in about 2000 and they separated on New Years Day 2004. 

3. There are two children of the relationship - J who is now 11 and is in grade 6 at his school and C who will be six next month, he is in grade 1.

   RECORDED  :  NOT TRANSCRIBED

   The mother resides in an outer Brisbane suburb, the father resides near the Jimboomba area.

4. There was litigation between the parties covering a period in 2005/2006.  The matter was resolved by way of consent orders on 27 July 2007.  The terms of those consent orders were that the two children were to live with the mother, she was to have sole parental responsibility in relation to health and education and there was to be equal shared parental responsibility in relation to all other major long-term decisions.

5. The father's time with the children was to be for two hours supervised at the Children's Contact Centre each alternate weekend.  I am informed, and for present purposes I accept, that the father has been exercising that time with his sons, but of the last six occasions he has only attended three and he notified the mother on two of the three occasions he did not attend that he was not coming.  There is provision in the consent orders of 2007 for the father to have telephone contact, but I understand that he does not exercise such time.

6. The orders at paragraph 4 provide for the father to be at liberty to bring his partner or his parents along.

   RECORDED  :  NOT TRANSCRIBED

   I am informed pursuant to paragraph 4 that the paternal grandparents attend with- - -

   RECORDED  :  NOT TRANSCRIBED

   His new partner and his son from that relationship attend.

7. Difficulties have arisen as a result of paragraphs 13 and 14 of the consent orders.  Paragraph 13 provides that:

   "Not less than 28 days prior to the mother's departure with the children for a holiday visit to Japan the mother shall supply to the father various details about the travel".

8. And paragraph 14 provides that:

   "The mother shall within 14 days upon return to Australia deliver to the Registrar of the Court the children's passports".

   As I understand it, since 2007 the mother has never travelled overseas.

   RECORDED  :  NOT TRANSCRIBED

9. The mother applied to a Registrar for the release of the passports.  I do not propose to go into the whys and wherefores, but apparently the registry advised that the mother had to bring this application.  I am not sure that I would have made the same decision, but not knowing the full facts I do not propose to investigate that.

10. By her application the mother proposes a variation to clause 13 in the following terms.  In other words, she is seeking that the travel not be limited to Japan.  I note that the mother has already travelled to New Zealand and that was with the consent presumably of the father.  I have no difficulty in accepting that the mother would at all times return to Australia.  Her mother is here, she has a sibling here with two nieces.  She has secure employment with the public service.  She is undertaking further studies which she seems very committed to. 

11. The mother says that the father has a drug and alcohol addiction problem and is at times uncooperative.  Her proposal basically is she will give the father all the details, including the holding of a return ticket.

12. What I propose to do in view of the age of J and to save the mother coming back is that the children should also be at liberty to travel overseas in relation to education related or sporting related activities.

    RECORDED  :  NOT TRANSCRIBED

13. So although there is no specific order to that effect it may be that immigration authorities might read down the amended paragraph 13. 

14. So I will delete paragraph 13 from the consent orders of 27 July 2007.  I will insert paragraph 13 as per the mother's application filed on 24 February this year.  The effect of that is that 28 days prior to any departure with the children for a holiday visit - the mother can always travel by herself, there is no embargo on that - the mother has to supply to the father in writing the date and point of departure from Australia, date and point of arrival in Australia, the mother's itinerary, contact details to enable the father to communicate with the children during the absence from Australia on travel overseas and evidence of the mother holding a return ticket for the children.  That will be 13A.

15. Paragraph 13B.  The children or either of them to be at liberty to travel overseas without their mother, provided such travel is related to educational or sporting purposes.

16. Clause 14 is omitted and I will substitute:

    "The Registrar of the Family Court of Australia Brisbane registry is to forthwith return to the mother the children's passports.  The mother is at liberty at all times to retain the children's passports in her possession.

    The mother is to be at liberty to apply for a renewal of the children's passports, notwithstanding the consent of the father may not be forthcoming in relation to any such application for the renewal of the passports.”

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  23 March 2009