Dyer and Dario

[2007] FamCA 624

FAMILY COURT OF AUSTRALIA

DYER & DARIO [2007] FamCA 624

FAMILY LAW - CHILDREN - Best interests - Application to take children overseas for holiday

APPLICANT: MR DYER

RESPONDENT: MS DARIO

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 990 of 2006

DATE DELIVERED: 15 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms L. Colla

COUNSEL FOR THE RESPONDENT: Ms M. Vohra

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1.That the husband shall be at liberty to take the children of the marriage T born … November 1997 and L born … July 2000 overseas from 24 June 2007 to 20 July 2007.

2.That prior to and after the overseas trip referred to in paragraph 1 herein the children will live with the wife as follows:

a.From 9.00am Sunday 17 June 2007 until 9.00am Saturday 23 June 2007 (and both parties shall be at liberty to attend Son T’s appointment at the … Hospital on 21 June 2007 at 1.00am at out-patients); and

b.From 3.30pm Friday 20 July 2007 until 2.00pm Saturday 28 July 2007.

3.That whilst the children are overseas the wife and children shall communicate by telephone each Monday, Wednesday, and Friday at 7.00pm Melbourne time with the husband to initiate the telephone call to the wife’s mobile number.

4.That the husband and the wife forthwith do all things necessary to facilitate the orderly and prompt processing of the children’s applications for passports.

5.That the husband shall provide to the wife an itinerary to the overseas trip.

6.That 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.

7.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

8.IT IS NOTED

9.That the wife has signed the children’s passport applications this day.

10.The husband sets out the overseas itinerary in his affidavit filed 29 May 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 990 of 2006

MR DYER

Applicant

And

MS DARIO

Respondent

REASONS FOR JUDGMENT

1. This case is about one single issue, as to whether or not the husband can take the parties' nearly ten and nearly seven-year-old boys for a four-week holiday to Sweden and Ireland, straddling the upcoming July school holidays.

2. The background briefly is that the parties started to live together in 1992.  They were married in 1994.  They separated on 1 January 2005.  The children currently spend half of their time in their mother's home, and half of their time in the father's home.  He has a partner, Ms H, who has an eight-year-old daughter, A, who lives with her.  It seems that the boys spend a lot of time with them but Ms H maintains a separate home at the moment.

3. The parties are in the course of negotiating a change to the arrangements so that the children will still spend half their time in each home but in a block of one week at a time.  They are discussing which day of the week the one week‑about arrangement will commence and end.

4. The husband wants to take the boys to Sweden and Ireland for about 10 days in each, with a few days stopping over in Dubai and Paris.  Ms H and A would be going as well.  Ms H has family in both Sweden and Ireland and it is intended that they will stay with relatives in each place.

5. The husband's material for this application is his Form 2 filed 29 May 2007, his affidavit filed the same day, and his affidavit of 14 June 2007.  The wife's material is her Form 2A response filed 10 June 2007, and her affidavit filed 12 June 2007. 

6. The concerns expressed by the wife are that the children are too young and too fragile to be taken so far away for so long.  She says that the current arrangement has the children away from each parent for only a number of days and that this would be four weeks away from her.  She says that L, who is not quite seven yet, tells her he does not want to go.  She says that although T does want to go, he does not fully understand what it will mean to be away for a month.  She says the boys are not all that comfortable with Ms H or with A.  She is concerned that T would miss four weeks of counselling.  It is common ground that he is seeing a counsellor for his own ongoing anxiety issues and that he sees the counsellor currently on a weekly basis.  She is concerned as well that T has a broken arm at the moment and the plaster would be due to be removed while they are away.

7. From the submissions made on the wife’s behalf, I also glean some concern as to how she obtained news of this trip, with T talking about a “big secret”.  Although there is a dispute as to what actually went on, I have heard one small piece of information as to something Ms H wrote about the trip on T's plaster.  It could only have left the mother with the impression that from Ms H's and the husband’s point of view, it was all a fait accompli and her opinion did not matter much.  I think that is very unfortunate and disrespectful to the mother, if it has been conveyed.  But I emphasise "if", because I have not got to the bottom of all of that.

8. The husband says that in fact the boys, when with him, are extremely excited about the prospect of the trip, and if they are expressing any negativity at all in their mother's home, it is reflecting her negativity rather than their own.  I have heard what the children have said to the Family Report writer about Ms H and I have to say it gives to me a different impression than what is put on behalf of the mother because they seem to describe her in terms that are pretty healthy and normal.  One says that she is "all right, a bit mean but can be fun".  The other one says, "She's sometimes cross, she's sometimes fair," and that she “does things with them”.  It sounded like a fairly reasoned and comfortable response.  Any little complaints about A sounded like normal childish complaints rather than anything of any significance.

9. The husband, through his counsel, emphasises that the children have consistently, for a long time now, been spending periods in each household.  Last summer, they spent 10 days at a time with each parent, so that it is not a foreign concept for them to be away from one parent or the other.  Most particularly, in April last year, their mother was away from them in India for 18 days.  He emphasises too that of course he will take appropriate action in relation to T’s broken arm, that he has arranged an appointment at the Hospital here shortly before he goes, and will do what is necessary to have the plaster properly removed in Sweden.

10. I must decide any children's case in accordance with the principle that the children's best interests are my paramount concern. The Family Law Act is clear on that. That is the backdrop to my conclusion, which is that, first of all, this is an outstanding opportunity for these children to see some wonderful other countries in the world. As I have made clear in the course of argument, objectively speaking, I really do not see a substantial basis to refuse them this opportunity. They are children who are loved in both homes. They are children who are clearly secure with their father as well as their mother. Their father is clearly alive to T’s particular sensibilities and needs, and L sounds like a buoyant little boy. Whilst he is younger, he has obviously got the sort of temperament that makes him cope more easily with changes and different situations than perhaps T does.

11. I really do not have any major concerns about the boys travelling to these wonderful and developed countries.  Having said that, it will be extremely important that they have ample opportunity to contact their mother by telephone.  That is something I think they will want to do frequently.  I think they should have some particular time with their mother both before and after the trip, just so that they get that extra special time with her.  I did give some thought to shortening the trip, but on balance at this stage, to start messing around the edges with all the difficulties of remaking bookings, I do not think that is reasonable.  I am going to leave the trip at the length that it is.

12. The orders will be as follows:

    1.That the husband shall be at liberty to take the children of the marriage T born … November 1997 and L born … July 2000 overseas from 24 June 2007 to 20 July 2007.

    2.That prior to and after the overseas trip referred to in paragraph 1 herein the children will live with the wife as follows:

    a.From 9.00am Sunday 17 June 2007 until 9.00am Saturday 23 June 2007 (and both parties shall be at liberty to attend Son T’s appointment at the … Hospital on 21 June 2007 at 1.00am at out-patients); and

    b.From 3.30pm Friday 20 July 2007 until 2.00pm Saturday 28 July 2007.

    3.That whilst the children are overseas the wife and children shall communicate by telephone each Monday, Wednesday, and Friday at 7.00pm Melbourne time with the husband to initiate the telephone call to the wife’s mobile number.

    4.That the husband and the wife forthwith do all things necessary to facilitate the orderly and prompt processing of the children’s applications for passports.

    5.That the husband shall provide to the wife an itinerary to the overseas trip.

    6.That 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.

    7.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

    8.IT IS NOTED

    9.That the wife has signed the children’s passport applications this day.

    10.The husband sets out the overseas itinerary in his affidavit filed 29 May 2007.

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

Associate: 

Date:  15 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DYER & DARIO