WILLIS & WILLIS

[2012] FamCA 341

FAMILY COURT OF AUSTRALIA

WILLIS & WILLIS [2012] FamCA 341

FAMILY LAW - CHILDREN – Overseas travel - Mother seeking permission to apply for passports for children to travel to United States of America – Where mother has resided in Australia since she was a child – Where the risk of the mother not returning with the children is extremely modest – Where the father requests possession of the passports outside of travel and make up time with the children – Where question of passport applications is a discrete issue – Ordered that the father sign necessary documents for passport applications - Ordered that the mother be permitted to retain the passports outside of travel.

APPLICANT: Mr Willis

RESPONDENT: Ms Willis

FILE NUMBER: SYC 2173 of 2010

DATE DELIVERED: 5 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 5 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Wotton of Nash Allen Williams & Wotton

SOLICITOR FOR THE RESPONDENT: Ms Menkes as agent for Aubrey Brown Partners

Pending further order

By consent it is ordered

1. The Orders made on 26 May 2010 in the Family Court of Australia at Sydney under File No. (P)SYC2173 of 2010 shall be suspended for a period of eight (8) weeks from the date of these interim orders, in so far as the said Orders made on 26 May 2010 relate to the children, B born … January 2004 and E born … June 2006, excepting in so far as such orders relate to telephone communication.

2. The said children, B and E, shall spend from 9.00 am until 5.00 pm each and every Sunday for eight (8) consecutive Sundays, with the Father, Mr Willis (“the Father”) with the first such Sunday to be the Sunday immediately following the date of these orders.

3. The next weekend that the children, B and E, shall spend with the Father under the said orders dated 26 May 2010 shall be the ninth weekend from the date of these interim orders.

4. Neither parent shall denigrate nor speak in a negative or derogatory manner about the other parent in the presence or hearing of the children, or either of them.

5. Each parent shall speak to the other in a civil manner.

6. The Mother, Ms Willis, (“the Mother”) and the Father shall attend the McDonalds Restaurant at C Street, Town T at the beginning and end of each period that B and E are to spend with the Father, for the purpose of transferring the said children between them.

It is further ordered

1. The Father shall sign all documents submitted to him by the Mother as are reasonably necessary for execution by him to apply for passports for the children within seven (7) days.

2. PENDING FURTHER ORDER the Mother is permitted to retain the children’s passports but shall not withhold the passports in the event the Father is permitted or the parties agree that he may take the children overseas.

3. Notwithstanding any other order, the Mother be permitted to take the children on an overseas holiday departing on 14 May 2012 and returning 11 June 2012.

4. The Mother shall within 14 days provide to the Father a full itinerary of the proposed trip including copies of return airfares, contact details and the address/es at which the children shall be staying.

5. BY CONSENT the Mother shall ensure that the children telephone the Father every third day whilst overseas.

6. PENDING FURTHER ORDER the children will spend time with the Father from 3.00 pm Friday, 15 June 2012 to 10.00 am, Tuesday, 19 June 2012.

7. PENDING FURTHER ORDER and notwithstanding any order to the contrary, the children will spend time with the Father from 12.00 noon on 7 July 2012 until 12.00 noon on 14 July 2012.

8. That in relation to the weekend commencing 15 June 2012 the Father shall collect and return the children from school.

9. Both parties forthwith enrol in a post separation parenting course within four (4) weeks and attend such course as is recommended by the service provider.

10. All outstanding applications for interim orders are dismissed.

11. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Willis & Willis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2173 of 2010

Mr Willis

Applicant

And

Ms Willis

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. I am asked to determine competing applications in relation to the father cooperating with the children obtaining Australian passports.  This is in aid of a proposed trip by the mother and members of her family with the children to Disneyland in mid-2012.  It would seem that this has been an issue for some time.

3. The father says he will cooperate with the passports being issued but only if all conditions which he requires in relation to, for example, possession of the passport outside of travel and make-up time for that lost while the children are overseas are fulfilled.  With respect to the approach taken, this is not an issue that should be the matter of horse trading but rather treated as a discrete issue.

4. There is an argument made by the father that if passports are issued to the children and the mother has possession of them then there is a credible risk that she might disappear with the children.  In support of his argument, he relies on the fact that the mother was born in the United Kingdom and, it is said, has dual citizenship.  In addition, and perhaps more compelling, that she has failed to comply with parenting orders which required her to make the children available for contact with him for a considerable period of time. 

5. For her part, the mother says she had good reason for withholding the children, but following upon recent meetings with a family consultant, appreciates that her stance was wrong and it is important that the children and father resume time.

6. The mother has lived in this country from when she was a child.  Her parents live in this country.  She has paid work, lives in the former matrimonial home and has had the children’s care consistently since when the parties separated.  At best, it would appear that there is a theoretical rather than unacceptable risk that the mother might, in her desire to cause trouble for the children in their relationships with the father, give up everything that she has in Australia and disappear with the children to the United Kingdom.  On balance, the evidence does not persuade me that that risk is anything other than an extremely modest one.  The preponderance of evidence suggests that the strong ties that the mother and children have to this country make the risk that if they travel they would not return extremely low.  It is in the children’s interests, given that both parents desire at some point to be able to travel with them overseas that the passport issue is put to rest.  Orders will be made in accordance with paragraph 7 of the mother’s proposed minutes of order.

7. I do not propose to order that the passports are then held by solicitors.  It is the Court’s experience that almost invariably problems arise.  Thus when the passport is not with the parent with whom the children are travelling the passports, pending further order, will remain in the mother’s possession. 

8. The next issue is travel between 14 May 2012 and 11 June 2012.  The father links whether or not the children should be able to take a trip to the United States with the mother and other members of the maternal family, with the question of make-up time for that lost whilst the children are overseas.  The details of the trip are contained in the mother’s affidavit and, as I understand it, an itinerary has been provided to the father.  There is nothing about the trip per se that the father says would cause the Court to be concerned about the children being given permission to holiday at that time.  I agree.  The holiday looks to me to be a delightful opportunity for children of these ages to commence what might hopefully be the first of a number of trips overseas with various family members.  It does not appear that it is going to unduly, for example, disrupt education, unduly disrupt time with the father or cause other matters which might suggest that the holiday should be deferred, shortened or anything of that type.  I will make orders in accordance with proposed Order 8 by the mother.

9. In relation to make up time, I agree that orders can now be made by consent.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 5 March 2012.

Associate:     

Date:              20 March 2012