Widford and Widford

[2011] FamCA 474

FAMILY COURT OF AUSTRALIA

WIDFORD & WIDFORD [2011] FamCA 474

FAMILY LAW – CHILDREN – Return of passports and removal from Airport Watch List

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

APPLICANT: Mr Widford

RESPONDENT: Ms Widford

FILE NUMBER: BRC 4901 of 2011

DATE DELIVERED: 15 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 June 2011 in chambers

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The requirements of the Family Law Rules 2004 be dispensed with so as to permit:

   a.the hearing of the father’s application filed 8 June 2011 to be heard and determined in chambers and without the necessity for either party to appear;

   b.any times to be abridged so as to permit same to occur;

   c.service to be deemed effected on the mother.

2. Paragraphs 8 to 12 inclusive of the orders made by consent on 11 December 2006 be forthwith discharged.

3. The passports of B born … May 1993 and S born … June 1995, held by the Brisbane Registry of the Federal Magistrates Court, be released to the father and entrusted to his safe-keeping until such time as the child S reaches the age of 18 on … June 2013.

4. The Court requests that the Australia Federal Police forthwith remove the names of B born … May 1993 and the child S born … June 1995 from the Airport Watch List at all points of international arrivals and departures in Australia.

NOTATION:

It is intended that these Orders be effective immediately so as to ensure that S is permitted to leave Australia as and from today’s date.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4901 of 2011

Mr Widford

Applicant

And

Ms Widford

Respondent

REASONS FOR JUDGMENT

1. On 17 February 2006 orders were made by consent in the Federal Magistrates Court of Australia. Pursuant to those orders the children B born in May 1993 and S born in June 1995, were to live with the mother and spend time with their father. Paragraphs 8 and 9 of those orders provided that the passports for the children be lodged by the father for securing by the Registry of the Federal Magistrates Court of Australia and that they not be released to either parent without further order of the Court or the consent of the parties.

2. Paragraph 11 of those same orders restrained each of the parents from removing or attempting to remove the children from Australia and at paragraph 12 provided for a “PACE Alert” placing the names of the children on the Airport Watch List in force at all points of arrival and departure in Australia. The children are now aged 18 and 16. The younger child, S, is booked to participate in a school excursion beween 2 July and 10 July 2011 to New Zealand. Unless the current orders are modified, she will be unable to undertake that trip. There are then some circumstances of urgency in having the orders discharged which is the gravamen of orders sought by the father in an application filed on 8 June 2011.

3. The father also filed, on 10 June 2011, an Affidavit of Service. That affidavit deposes to his application having been served, his initiating application and his accompany affidavit on the wife, via electronic communication to the mother’s email address in China. The mother is residing in that country with her partner. Attached to that Affidavit of Service is a signed Acknowledgement of Service by the mother whose signature on that document is recognised by the father. Also annexed to that Affidavit of Service is an email communication between S and the mother and the mother’s response.

4. The Affidavit of the self-represented father exhibits the itinerary of the school trip to New Zealand to which earlier reference has been made. It also exhibits two documents dated May 2 and May 26 respectively, signed by the mother, in which she indicates her consent to S leaving Australia for the school trip. It also should be noted that the same correspondence indicates the mother’s consent to S travelling abroad “after she graduates from highschool in December of this year”. The mother says:

   [S] is a very responsible and mature young lady and I also wish to express my consent at this time that she be allowed to have her passport to travel once she has graduated.

   Finally, if he requires it, upon turning 18 on May 14 2011, I hereby consent to his passport being given to him [ie the older child of the marriage] to be kept by him any time after his birthday.

5. The later correspondence from the mother (addressed to the Registrar Federal Magistrates Court Brisbane) and dated May 26, 2011 includes the following:

   I further hereby express my full support and wishes that the above steps be taken as quickly as possible to allow [S] to join her classmates and friends in an upcoming ski-trip to New Zealand, planned to take place in about one month.

6. I am satisfied that the mother has been served with the application and accompanying affidavit. I am also satisfied that she is aware of the proceedings and the nature of them, and provides her consent to orders of the type sought in the application.

7. To the extent that any formalities, relating to service required by the Rules, have not been complied with, I shall direct that they be dispensed with.

8. I have determined to deal with this matter in chambers without the necessity of appearance by either party. I have done so because the mother resides in China; she plainly and unequivocally signifies to her agreement to the orders sought by the husband on behalf of the child; because of the need to have orders formalised prior to S leaving the country on her proposed school trip shortly and because of the time, expense and other difficulties associated with attempting to facilitate a hearing by electronic means so as to have the mother signify her consent to the orders on the Court record.

9. I will then order that the requirements of the Rules be dispensed with so as to permit the application by the father to be heard expeditiously and determined in chambers without the necessity for appearance by either party and so as to dispense with any necessary formalities relating to service. Having done so, I will order that paragraphs 8 to 12 inclusive, of the orders made by consent on 11 December 2006 be discharged; that the passports of both children be returned to the father, and that the names of the children be removed from the Airport Watch List.

10. Although not strictly necessary because B is now 18 years of age, I will make an order that his name be removed from the airport watch list, so as to facilitate the ease of that occurring administratively by the Australian Federal Police.

11. I order accordingly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 June 2011.

Associate: 

Date:  20/06/2011