Wilan and Wilan (No 2)

[2012] FamCA 1089

FAMILY COURT OF AUSTRALIA

WILAN & WILAN (NO. 2) [2012] FamCA 1089

FAMILY LAW – CHILDREN – where mother seeks an order enabling her to travel overseas with the parties’ child – where the father has concerns regarding the mother returning to Australia – orders made requiring mother to provide notice in writing to the father of all travel plans and dates.

Family Law Act 1975 (Cth)

APPLICANT: Ms Wilan

RESPONDENT: Mr Wilan

FILE NUMBER: BRC 3549 of 2011

DATE DELIVERED: 17 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 December 2012

REPRESENTATION

THE APPLICANT: Ms Wilan in person

THE RESPONDENT: Mr Wilan in person

Orders

IT IS ORDERED THAT

1. The father shall forthwith sign all such documents as are necessary for a passport to issue for the child M born … April 2003 (“the child”) and in the event that the father does not sign such documents by 4.00pm today, 17 December 2012, a Registrar shall be empowered to sign on his behalf.

   AND IT IS RESPECTFULLY REQUESTED THAT a passport issue urgently for the child M.

2. The child M born … April 2003 is permitted to travel internationally commencing on 24 December 2012 and returning to Australia by not later than 6.00pm on 1 January 2013.

IT IS FURTHER ORDERED THAT

1. In the event that the mother has plans which involve any international travel with the child M, she shall give the father not less than 28 days notice in writing and contemporaneously provide to the father a copy of the relevant tickets so as to reveal the intended dates of departure from and return to Australia.

2. In the event that the proposed travel is to New Zealand and involves time outside of Australia of fourteen (14) days or less then, provided the terms of the preceding paragraph are met, the child M be permitted to travel to New Zealand with her mother.

NOTATION
The intended travel for M is intended to commence on 24 December 2012 and conclude by 30 December 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilan & Wilan 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 BRISBANE

FILE NUMBER: BRC 3549 of 2011

Ms Wilan

Applicant

And

Mr Wilan

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The mother of M born in April 2003 (“the child”) who is 10 in a few months time, applies for orders that will see the issue of a passport to the child, the purpose of which is to facilitate a trip to New Zealand which is the country of origin of the mother’s current partner.  That trip facilitates time between the child and the mother’s partner’s children. That usually occurs approximately twice a year. 

2. The father who, like the mother, represents himself before me today, takes no issue with the issue of the passport for the proposed travel this Christmas, given that it is limited to a trip which would see the child departing Australia on Christmas Eve and returning to Australia on 30 December.   The father’s concerns arise from a situation that he moots, occurring in the future, of the mother residing in New Zealand, or perhaps another country, permanently. 

3. It seems to me that the concerns raised by the father in that latter respect can be met by orders which require the mother to provide to the father written notification of any intention to travel not less than a month prior to that travel occurring, and, at the same time, providing to the father a copy of the ticket showing the departure date and the date of arrival back into Australia.

4. The mother indicates she has no immediate plans for travel other than to New Zealand for the reasons and in the circumstances earlier referred to.  She expresses a concern that consent may be unreasonably withheld in circumstances where the travel is to New Zealand and for the purposes earlier referred to. 

5. It seems to me that that concern can be met by an order that provides that in the event that the proposed travel by the child is to New Zealand; involves time outside of Australia of 14 days or less and provided the terms of the orders earlier referred to are met, then that travel ought be permitted, subject to any application brought by the husband asserting specific legitimate concerns. That is to say the onus should be on the father to bring any application preventing such travel as falling outside of the parameters to which I have just referred. 

6. The father raises an additional concern that any such travel might be used so as to preclude time between he and his daughter, and, in particular, time at Christmas time.  That is a separate issue, but I make it abundantly clear in these short reasons that if the court was to arrive at the conclusion that travel of the type proposed in those orders was being used so as to preclude reasonable amounts of time between the father and the child consistent with her best interests, a dim view would be taken. 

7. A respectful request is made that a passport issue urgently for the child.  The order will include a notation that the intended travel for the child is intended to commence on Christmas Eve and for the child to return to Australia by 30 January.  I will include in the orders an order that the child be returned to Australia not later than 6.00 pm on 1 January. The reason for choosing 1 January rather than 30 December is to allow for any delays in flights and the like. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 December 2012.

Associate: 

Date:  21 December 2012