Winston-Bourke and Winston-Bourke

[2008] FamCA 750

FAMILY COURT OF AUSTRALIA

WINSTON-BOURKE & WINSTON-BOURKE [2008] FamCA 750

FAMILY LAW – ORDERS – Discharge – Removal of children from passport watch list

Family Law Act 1975 (Cth)

APPLICANT: MR WINSTON-BOURKE

RESPONDENT: MS WINSTON-BOURKE

FILE NUMBER: MLC 7812 of 2008

DATE DELIVERED: 28 AUGUST 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 28 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

1. The orders made on 26 August 2008 be discharged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7812  of 2008

MR WINSTON-BOURKE

Applicant

And

MS WINSTON-BOURKE

Respondent

REASONS FOR JUDGMENT

1. This matter came before me at 2.15pm on 28 August 2008.  The husband appeared in person.

2. There was no appearance for this wife.

3. No documentation has been filed by any party.

4. This case was first dealt with by me on Tuesday 26 August 2008 as a result of an after hours call by the husband to the Court.  He satisfied the Registrar of the urgency.  The Registrar advised me of the background of the matter.  According to the Registrar, the husband had been in touch with the Court indicating that throughout that day, his wife had threatened to harm herself and the children and possibly also flee to Indonesia or Thailand.  The husband said that his wife and he had travelled extensively previously so there was nothing preventing her from so going and in particular, she had the passports. 

5. The wife was living in D which is about two to three hours from Melbourne and the husband apparently lives in Melbourne.  He told the Registrar that he had attended the farming property on the basis of a call from his wife as had also attended, the police, ambulance and CAT team.  Apparently they were satisfied that there was no immediate problem but subsequent conversations with his wife made him concerned about the welfare of the children and the prospect of his wife fleeing.

6. Based on that information, I indicated a willingness to issue a passport watch order precluding the children from leaving Australia but I also desired that the matter come back before me to ensure that the problem was as described by the husband.

7. The husband told me in court on 28 August that he had discussed matters with his wife and they had agreed for him to hold the passports of the children and that they would go to counselling.  I described to the husband the concern that I had about the boy who cried wolf and the problems that he might face in future.  I asked why his wife was not present and he said that she had had some legal advice that she did not have to appear notwithstanding the very clear order that I had made.

8. The husband told me that as a result of the discussions with his wife, he did not need the order any longer and he was content for it to be discharged.  He said that he felt comforted by the fact that he had the passports of the children.

9. I have great reservations about the steps being taken and am not convinced that the Court is being told the full story.  It was for that reason that I ordered the matter come back before me this afternoon.

10. Notwithstanding that, I have no alternative other than to discharge the order on the basis that the applicant no longer seeks it.  I do not know whether this order is in the best interests of these children and am not convinced that the issue of the passport resolves it.  I am very concerned that the parties are not addressing the real issue in dispute between them with outside assistance notwithstanding the husband told me that they were going to go to counselling.  The husband had told the Registrar at the time that he had sought legal advice and named a firm of solicitors who would be acting for him.  He did not have them appear before me.  The husband indicated as I have already mentioned that his wife had had legal advice but no-one made any inquiries of the Court.

11. This is an unsatisfactory use of the after hours service notwithstanding the potential risks involved but the Court’s conscious should be clear.  Accordingly the orders are discharged.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: …

Date:  28 August 2008