MAYSE & AMBER

[2011] FamCA 936

FAMILY COURT OF AUSTRALIA

MAYSE & AMBER [2011] FamCA 936

FAMILY LAW – CHILDREN – interim orders – application by the mother seeking orders that the child be permitted to travel overseas for a holiday – where the father consents to the proposed travel however opposes the child travelling on an Australian passport – where the child was born overseas but is now an Australian resident – where the father resides overseas – best interests – orders permitting the mother to have a passport issued for the child without the father’s consent or signature and further orders allowing the child to travel overseas.

FAMILY LAW – PRACTICE AND PROCEDURE – service – where the father lives overseas – orders granting leave to the mother to serve the father via email.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Mayse

RESPONDENT: Mr Amber

FILE NUMBER: DNC 419 of 2008

DATE DELIVERED: 2 December 2011

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 2 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The time is abridged and this application is dealt with on an urgent basis.

2. The applicant is granted leave to effect service of the Application in a Case and supporting affidavit filed by Ms Mayse on 29 November 2011 by e-mail to be headed “Australian Passport for the child D” upon the respondent to …email address

3. The mother is permitted (without the consent or signature of the father) to make application to the Minister for the child D born on … 2002 as an Australian citizen to be issued with an Australian passport.

4. The child the child be permitted to travel internationally to the Country B departing Australia on 21 December 2011 PROVIDED THAT the child is returned to Australia by 4 March 2012 and further PROVIDED THAT by 4.00 pm on 5 March 2012 the mother surrenders the child’s Australian Passport to the Registry Manager of the Family Court of Australia at Darwin.

5. Costs are reserved generally.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 419 of 2008

Ms Mayse

Applicant

And

Mr Amber

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me an application which I am treating as an ex parte application, although attempt has been made to effect service to an email address.  The Affidavit of Service indicates that it has been served to that email address.  The previous material in the file, however indicates the father’s occupation and that may create some difficulty in accessing emails immediately. 

2. This Application in a Case is brought by the mother of the child, the child, who was born in 2002.  The history set out in the documents indicates that the child has been in the primary care of the mother substantially all of her life.

3. The information indicates that the mother and father have separated and are now divorced.  The parents and the child were citizens of Country A.  The mother has been residing with the child in Australia since 2007, however, the father has been resident in other places in Africa, including currently Country C due to his employment as a health care professional connected with the United Nations.  The proceedings seeking final orders relate to the mother’s application to transfer the child’s residence permanently to the Country B where she wishes to reside with a new partner.

4. That application is opposed by the father.  He has attempted to file a response to the initiating application but there appear to be difficulties associated with credit card transactions.  Notwithstanding that the father (in annexures to the mother’s affidavit) has consented to the child travelling for a holiday to the Country B commencing in December this year and returning in March next year.

5. The difficulty, however, for the mother is that he does not consent to the child travelling on an Australian passport, but insists that she travel on her Country A passport.  The difficulty with that for the mother is that the mother and the child are now citizens of Australia and Australia requires the child to travel, when leaving Australia and entering Australia, on her Australian passport.  The inconsistency therefore is that the father has not permitted the mother to obtain the Australian passport.  This would prevent the child travelling to Country B for the holiday, even though the father consents to that holiday.

6. In the unusual circumstances of this case there are not many factors which relate to the best interests of the child as set out in section 60CC. It appears that there are significant difficulties in the parties exercising their joint parental responsibility, in particular in making decisions about which passport can be used. In the circumstances of the immediately planned travel which has been booked by way of return tickets for 21 December 2011 and 2 March 2012, it is not reasonably practicable to continue that equal shared parenting in relation to the issue of the passport.

7. I am not, however, dealing with the overall issues which relate to shared parental responsibility or where the child should live permanently.  This is only an interim matter dealing with the holiday.

8. I take into account that the father has consented to the holiday.  I will make conditions requiring the child’s return to Australia by 4.00 pm, 5 March 2012 and the surrender of her Australian passport to the Registry Manager of the Family Court of Australia at Darwin.  This should protect the father’s situation and give him a basis upon which he can continue his opposition to the permanent move of the child to the Country B until such time as the Court can hear all of the issues to make a proper final determination.

9. The benefit to the child is that it will allow her to enjoy a holiday in Country B with her mother and ensure that there is an ability for the mother and the child to continue the association with the proposed future partner for the mother. 

10. In all of those circumstances I am satisfied that it is in the best interests of the child that the orders are made permitting the mother to have a passport issued for the child without the father’s consent or signature. 

11. So far as service of the application is concerned it appears that the application was only recently forwarded to the father to his email address and that is why I have said that I am dealing with it as if it were an ex parte application, as although it may have been sent to that email address there has been no response.  It is not clear whether the father will automatically receive such documents.  In view of the difficulties I am satisfied that it is appropriate to make the orders in these unusual circumstances.

12. As I said in discussions with counsel I have extended the return date from 2 March to 5 March because of my concern that there may be difficulties in international travel which have occurred in the past.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 December 2011.

Associate: 

Date:  13 December 2011