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

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:

Order (13) of the Order of Registrar Stevens dated 27 July 2007 is discharged.
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.
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.
Order (14) of the Order of Registrar Stevens dated 27 July 2007 is discharged.
The Registrar of the Brisbane Registry of the Family Court of Australia to forthwith release 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 be at liberty to apply for a renewal of the children’s passports notwithstanding the consent of the Father may not be forthcoming.
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

I propose to accede to the application that has been filed in this matter. I will give brief reasons for that decision.
The parties commenced cohabitation in about 2000 and they separated on New Years Day 2004.
There are two children of the relationship - J who is now 11 and is in grade 6…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whitfield and Pirrip

Details

AGLC: Whitfield and Pirrip [2009] FamCA 225
Case: [2009] FamCA 225
Decision Date: 23 March 2009

CaseChat Overview and Summary

This matter came before Barry J of the Family Court of Australia concerning parenting orders made by Registrar Stevens on 27 July 2007. The dispute involved the mother's proposed international travel with the children and the retention and renewal of their passports.

The court was required to determine whether to discharge existing orders relating to the children's travel and passports, and to make new orders concerning the mother's departure with the children for overseas travel, including specific notification requirements to the father. Further issues included the children's liberty to travel overseas without their mother for educational or sporting purposes, and the mother's right to retain and renew the children's passports.

Barry J discharged orders (13) and (14) of the previous order. The court ordered that the mother must provide the father with written details of departure and arrival dates and points, her itinerary, contact details for the children, and evidence of return tickets for the children, at least twenty-eight days before departing Australia. The children were granted liberty to travel overseas without their mother for educational or sporting purposes. The court further ordered the release of the children's passports to the mother, who was at liberty to retain them and apply for their renewal without the father's consent. The court also directed that information regarding the obligations and consequences of contravening these orders be provided to the parties.

Orders

Orders of the court

IT IS ORDERED THAT:

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

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.

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.

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

The Registrar of the Brisbane Registry of the Family Court of Australia to forthwith release 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 be at liberty to apply for a renewal of the children’s passports notwithstanding the consent of the Father may not be forthcoming.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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