Woodstop and Carrera

[2008] FamCA 1140

FAMILY COURT OF AUSTRALIA

WOODSTOP & CARRERA [2008] FamCA 1140

FAMILY LAW – CHILDREN – Airport watchlist order

Family Law Act 1975 (Cth)

APPLICANT: Ms Woodstop

RESPONDENT: Mr Carrera

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7662 of 2008

DATE DELIVERED: 18 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR CANTWELL

SOLICITOR FOR THE APPLICANT: HICKS OAKLEY CHESSELL WILLIAMS

SOLICITOR FOR THE RESPONDENT: MR DA GAMA

SOLICITOR FOR THE RESPONDENT: VERNON DA GAMA AND ASSOCIATES

Orders

1. That each party the husband MR CARRERA born … October 1959 and the wife MS WOODSTOP born … June 1964 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children J (male) born … January 1995 and K (female) born … September 1997 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders their removal.

2. That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the AFP Operations Coordination Centre, GPO Box 401 Canberra ACT 2601, and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

3. That a copy of this order be emailed immediately to the AFP Operations.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the passports of the children be collected by the husband from the solicitor for the wife at 9.00am on Wednesday 19 November 2008 for the purposes of enabling him to obtain the refunds on tickets acquired by him for the children’s international travel and that within 14 days of this date, the husband return the passports of the children to the wife.

3. That all proceedings be otherwise dismissed and removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7662 of 2008

MS WOODSTOP

Applicant

And

MR CARRERA

Respondent

REASONS FOR JUDGMENT

1. This is an application at quarter past four in the afternoon of a day which has seen the wife give evidence and then cross-examined.  It was her application to seek injunctions preventing the children leaving Australia until they reached the age of 18 years.  That application was filed in August this year.  It arose as a result of the husband making very clear that he wanted to take the two children for a period of time to India over the summer months.

2. The evidence today is that the wife opposed the application, perhaps later rather earlier, on the basis that she has some serious concerns about the capacity of the children to manage that because of their health reasons.  I will not canvass those issues now save to say that her attitude seemed sensible, but obviously I have only heard one side of the story and had not had the opportunity to hear from the expert. 

3. The husband's attitude was that the time was running against him and if the matter was not concluded effectively today, and possibly even tomorrow, then any order would be rendered nugatory.  The fundamental issue in this case also is it is the wife who is seeking the injunction but on the other hand the husband is seeking the capacity to travel. 

4. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) sets out as a primary principle that each party bears their own costs. The only time the Court should depart from that rule is where the circumstances justify it so doing and if that decision is then made, the Court is obliged to take into account the matters set out in s 117(2A).

5. This is a case where I think the parties were dealing with some issues outside of the primary medical matters, including issues of domestic violence and communication.  It is not a matter in which I could say that either party has been entirely successful or unsuccessful on the basis that the wife needed to come along today to seek the orders that she wanted. 

6. This was a case I think that needed to be aired for the parties sake as well as for the children and under those circumstances I do not see any reasons that justify departing from the principle in s 117. The application under those circumstances is refused.

I certify that the preceding Six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  27 November 2008