Dart and Graham

[2008] FamCA 824

FAMILY COURT OF AUSTRALIA

DART & GRAHAM [2008] FamCA 824

FAMILY LAW – CHILDREN - Best interests – specific issues orders – passport application - application by the father seeking permission to take the children on an overseas holiday – trip opposed by mother – security situation in Bali, Indonesia – DFAT travel advice

Family Law Act 1975 (Cth)
Australian Passports Act 2005

APPLICANT: Mr Dart

RESPONDENT: Ms Graham

FILE NUMBER: SYC 3318 of 2007

ORDERS MADE: 17 September 2008

REASONS FOR JUDGMENT PUBLISHED: 3 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 17 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

COUNSEL FOR THE RESPONDENT: Mr Livingstone

Orders

1. That this court gives permission to the father to take:

   (a)       E born … September 1994;

   (b)       C born … October 1996; and

   (c)       H born … July 1998 (‘the children’)

   on an overseas holiday to Bali, Indonesia, to commence on 27 September 2008 and to conclude no later than 11 October 2008 at Sydney International Airport.

2. For the purpose of implementing the preceding order:

   (a)That the children be supervised on the flight from Sydney to Bali either by the father or both of his parents.

   (b)That the children be supervised on the flight from Bali to Sydney by the father or both of his parents.

   (c)That whilst in Indonesia the children be supervised by the father or in the event that he is not for short periods of time available to be in the immediate presence of the children, by his parents or one of the following members of the father’s family, Mr G, Ms D, Ms S or Mr R.

3. That the mother do all acts and things necessary to procure valid passports for the children, and she have such authority as is necessary, pursuant to section 11(1)(b) of the Australian Passports Act 2005 without the signature of the father, and deliver such passports to the father or one of his parents at a place to be agreed between the parents in Sydney by 4.00 pm on 24 September 2008, and the said passports are to be returned to the mother at the conclusion of the travel pursuant to Order 1 hereof.

4. That in the event that the current Department of Foreign Affairs and Trade (DFAT) travel advisory to Indonesia is upgraded then each parent has liberty to apply on 24 hours notice to the Court and the other party for variation of these orders.

5. That the mother may communicate with the children by telephone at 8.00 pm Sydney time each day that the children are in Bali with the father to assist the children in receiving the call from the mother.

6. That the father facilitate the children, or any one of them, telephoning the mother at all reasonable times whenever the children or any of them wish to call the mother.

7. That the listed date of 7 October 2008 is vacated.

8. That the matter be adjourned to 11 November 2008 at 11.00 am in a Registrar’s list.

9. The Court Notes:

   (a)The advice of the father that the children are presently booked to return to Australia on flight … on 8 October 2008.  As either the father or his parents have to accompany the children back to Australia the father cannot presently guarantee that he will be able to obtain his own tickets on the same flight and that he is now “wait listed” for that flight.  In the event that the father cannot arrange tickets for the father and the children to travel back to Australia on 8 October 2008 he will advise the mother as soon as possible of the alternate arrangements that he proposes and in any event will have the children back in Australia no later than 11 October 2008.

10. That there be no Order as to costs.

11. Pursuant to Section 65DA(2) and Section 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 under the pseudonym Dart & Graham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3318  of 2007

MR DART

Applicant

And

MS GRAHAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father in these proceedings applied for an order that his children might attend his wedding to his fiancé in Bali.  The mother does not object to the children attending the wedding.  She does however object to them going to Bali on the ground that an advice issued by the Department of Foreign Affairs and Trade warns travellers to Indonesia that that country has risks associated with it and that careful consideration should be given to the need and desirability of such travel.  There is no prohibition on travel in the travel advice.

Background Facts

1. In October 1961, the father was born and is currently aged 46 years.

2. In March 1964, the mother was born and is currently aged 44 years.

3. In July 1993 the mother and father were married.

4. In December 1993 the mother and father moved to Jakarta, Indonesia.

5. In September 1994, the child E was born, and is currently aged 14 years.

6. In October 1996, the child C was born, and is currently aged 12 years.

7. In July 1998, the child H was born, and is currently aged 10 years.

8. In 2001 the child E was diagnosed with Asperger’s Syndrome.

9. In 2002 the child C was diagnosed with Oppositional Defiant Disorder (ODD) co-morbid with Attention Deficit Hyperactivity Disorder (ADHD).

10. In December 2004, the family returned from Jakarta to live in Sydney.

11. The parties separated in December 2005, on the father’s evidence.  However, on the mother’s evidence, the separation occurred on 5 January 2006.

12. On 31 December 2006 the father retired from his work in Australia to commence work in Jakarta, with an organisation with whom his former employer had what is described as a “sister relationship”.

13. Evidence adduced by the father showed that 226,981 Australian residents travelled to Bali in 2006.  Evidence also suggested that foreign arrivals in Indonesia had in the first quarter of 2008 increased by 15%.

14. On 17 August 2007 final parenting orders were made by consent.

15. On 6 December 2007 a Divorce Order was made.

16. On 26 February 2008, the father sent an email request to the mother for the children to attend a family celebration during September to October 2008, in Bali.

17. On 10 March 2008, the mother’s solicitor sent a letter to the father’s solicitor, confirming that the mother did not consent to the children travelling to Indonesia, but may consent to them travelling to Colorado.

18. On 27 May 2008, the United States Embassy cancelled its travel warning to its citizens for travel to Indonesia, although urging its citizens to exercise caution.

19. From 21 June to 9 July 2008, the father spent time with the children on three consecutive weekends in Australia.

20. On 24 June 2008 final property orders were made by consent.

21. On 27 June 2008, the Department of Foreign Affairs and Trade issued travel advice in respect of travel to Indonesia.  It urged those to whom it was addressed to exercise caution in Indonesia.  It signalled that terrorist targets could include hotels, sporting clubs, theatres, bars, nightclubs, cinemas and other places frequently attended by foreigners.  The advice under the heading “Civil Unrest and Political Tension”, draws attention to the provinces of Aceh, Central Sulawesi Province, East Kalimantan, Muluku,  Papua and West Timor.

22. In July 2008, the mother says, she learned for the first time that the father was engaged to be married.

23. On 28 August 2008 the father filed the present Application in a Case.

24. In early October 2008, the father is to be married in a ceremony in Bali.

Issues

1. It is noted that the travel of children overseas following the making of any order such as was sought in this case is prohibited without the consent of the parties or the leave of the Court.

2. That consent is not forthcoming in this case, and so the issue is whether upon a proper consideration of the evidence and the provisions of the Act, balancing perceived risks and benefits, should these children be permitted to travel to Bali for a period of 10 days in order to enable them to attend with their paternal extended family and join in the celebration of the father’s wedding to his fiancé.

The Law

1. I am bound by the Act to take into account the objects of that part of the Act which relates to children, insofar as they are relevant to these proceedings.

2. Those objects include the promotion of the rights of children to have a “meaningful relationship” with each of their parents.

3. The mother concedes that it is appropriate for the children to attend their father’s remarriage.

4. I consider it more than appropriate, I consider it very important.

5. A meaningful relationship with the father can only grow out of the participation of the father in the children’s lives and the children in their father’s life.  The concept of a meaningful relationship is a qualitative one rather than a quantitative one.

6. The father has to be known to the children in his context (which can be a changing one) in the same way as they are to him in theirs.

7. The new bride will have, it seems, her relatives at the wedding and they will become part of the children’s expanded family constellation.

8. The involvement of the children in the celebrations in which the father’s family also are going to join will afford them the opportunity of seeing the merging of the two families and the expansion of their own family ties.

9. A failure to attend might well be seen as an exclusion from the father’s new life and a diminishment of the importance of the children to him in favour of new relationships.

10. The mother indeed alleges that the children were upset because they were not at the head of the queue in learning of their father’s fiancé and his intention to marry.

11. The mother’s proposal that the children should simply send a DVD of good wishes on the occasion would not in my view be an appropriate level of involvement of the children in this event.  The participation needs to be in my view a bilateral experience and the proposal would prevent the children enjoying that experience.

12. The mother concedes that the children and each of them has an affection and love of their father and that the father loves and cares deeply for them.  In my view in some ways the mother in conceding that the children should attend the wedding (provided it was not in Bali) gives recognition to its importance.  I take the view that the interests of the children are served by their attendance.

13. The question then is (and it appears the only issue raised by the mother on the hearing apart from a reference of some health problems from which the children suffer) whether the attendance at the wedding is of a degree or potential risk to the children such as to outweigh the benefit of such attendance?

14. I have come to the conclusion that it is not, for the following reasons:

    a)The plans of the father are that the wedding party will be staying in a group of privately owned villas and not in large hotels.

    b)The father and the children do not intend to visit the places nominated above as subject to civil unrest.

    c)The father does not intend to visit public areas where there is a likelihood that any protest or demonstration might occur.

    d)The father for a period of about 11 years managed the family’s security in Jakarta through troubled times successfully.  During the time he lived in Indonesia with the mother the Jakarta riots and the overthrow of President Suharto occurred.  The Bali Bombing occurred in 2002 and in 2003 the Marriott Hotel bombing occurred.  In 2004 the Australian Embassy was bombed.  Neither he nor the mother changed their place of residence and only returned as a family to Australia in December 2004 for reasons related to the father’s employment.

    e)The father is presently an Indonesian Resident.  He has in all lived there now for twelve and a half years.  He intends to exercise a high level of vigilance and personal security awareness at all times in respect of himself and his children and his family.

    f)The father has had the experience of travel to and residence in Bali on 20 prior occasions.  Indonesia is not a strange land to the children.  They have lived there for most of their lives.

    g)Although the mother refers to the health of the children she is prepared that the father might care for the children in another country.  It was, of course, in Indonesia that she and the children spent much of the marriage and they seemed able to manage the children’s health satisfactorily there although the mother expresses some disquiet about some of the medical services she received there on one occasion.

    h)It is intended that the children will be accompanied on the flights to and from Bali by the father or his parents and that whilst in Bali they will be under the constant supervision of either the father or his parents. Whilst in Bali they will be primarily supervised by the father and in the event of there being short absences of the father they will be supervised by his immediate family.

15. In all the circumstances, how are the objects of the Act and the interests of the children to be served?  I believe that the children should attend their father’s wedding in Bali.  I have come to the conclusion that given the risk management arrangements the father proposes and the history of his past successful risk management, the risk asserted by the mother is not sufficient to deny the children the benefit of their attendance at their father’s wedding.

16. In this case, I informed the parties of the decision that I intended to make on the application and invited the parties to confer and draw a minute of an order which the Court might make to give effect to that decision and of course anything further that they agreed to.  As a result, the orders I made, although not all made by consent, reflect the minute of proposed orders tendered by the parties following that invitation.

17. I accordingly make the orders set forth above.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: …

Date:  3 October 2008