Lett & Lett

[2007] FamCA 713

FAMILY COURT OF AUSTRALIA

LETT & LETT [2007] FamCA 713

FAMILY LAW - CHILDREN - Best interests - Proposed overseas travel by father with children

Family Law Act 1975

Applicant: MR LETT

Respondent: MRS LETT

File number: MLF 184 of 2004

Date Delivered: 29 May 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 29 May 2007

Representation

Counsel for the Applicant: Ms P J Treyvaud

Solicitor for the Applicant: Caroline Counsel Family Lawyers

Counsel for the Respondent: Mr G A Glover

Solicitor for the Respondent: Hale & Wakeling

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 184  of 2004

MR LARK

Applicant

and

MRS LARK

Respondent

REASONS FOR JUDGMENT

1. The parties in these proceedings were married on 17 October 1987 and separated in the year 2003.  Notwithstanding that their marriage has been dissolved, it will be convenient for me to refer to them still as “husband” and “wife”.

2. The husband and the wife have three children aged 16, 14 and 11.  G is in year 11, A is in year 9 and S is in year 6, all at L School. 

3. The separation of these parties did not bring an end to the unhappy differences between them and there have been a number of applications before the Court in the intervening period of time.  Fortunately, they were able last year to bring to an end outstanding matters and final orders were made, both in respect to children's matters and also in respect to financial issues.

4. Subsequently, however, a difficultly has arisen.  I pause here to say that it must have been envisaged that there could well be difficulties given the provisions in the orders made on 11 September 2006 in par 3, par 8 and par 13.  Paragraph 3 is not of relevance to the current proceedings.  Paragraph 13 has some relevance given that both parties speak of attendances upon Mr P, but given that they disagree with what happened at the time, nothing can be further determined as a result.  But par 8 has particular significance, given that it concerns situations when the children might be taken on holidays for a period of time greater than one week, out of Melbourne and also what should happen in the event that either parent wished to do this.  That event has arisen.

5. The husband is a graduate from a University in the United States of America and this year marks 25 years since he graduated.  There is to be a reunion to mark the event.  The husband wants to take his new wife, their child and the parties three sons to that reunion.  As far as I can see, he followed the procedure set out in par 8 of the orders made 11 September 2006.

6. The wife does not agree that it would be in the best interests of the children to go.  She feels that the educational consequences to the children, and in particular to G, are such as to outweigh any benefit to them.

7. A number of matters are relevant.  G is due to go with his schoolmates to Germany on a trip, leaving Melbourne on 23 June of this year and returning on 13 July.  At the time the proceedings were, I think, instituted the husband was of the view that G at that stage was not particularly interested in going to Germany.  He now does want to go and the husband's proposals for G have changed.  The proposal now is that the family party would leave Melbourne on 5 June and return on 26 June, but G would leave the United States on 16 June and would arrive back in Melbourne on 18 June.  He would then be able to depart with his schoolmates on 23 June, presumably having got over any jet lag.

8. Another difficulty so far as G is concerned that has been raised is his exams.  He is presently doing exams.  He is due to have further exams on the day of departure and the following day.  That was something which had been apparently envisaged as a possibility and I say that because of communication between L School and the husband, to which I will shortly turn.  At this stage I will simply note that there is a possibility that he can do his exams before or after he goes or, if necessary, the university can arrange for proctored examinations to be administered.  That contingency has not been finally addressed, but it certainly has been noted as being open to arrangement.

9. The wife is fervently of the view, as expressed through counsel, that it is the husband who is putting his interests ahead of the children in that he wants to go to the reunion and that he puts that in a higher category than he does the interests of the children and again, particularly G, in attending school and pursuing their education.

10. The husband has a number of reasons for wanting to go to the United States.  As I have said in discussions with counsel, it seemed to me that the timing of the trip was certainly dictated by the date of the reunion, however, the purpose of it was twofold, that is to say, he saw it as offering opportunities for the children to attend that institution and to mix with other children who are children of other graduates who would come from all over the world and also provides, given that they would be in the United States, an opportunity to spend time with their relatives who they do not see on a regular basis.

11. I am told by Mr Glover, who has, if I may say, ably represented the wife, that if the husband simply wanted to take the children to see their grandparents or other members of their extended family that would not be a difficulty provided it took place in school holidays.  That is largely, I think, the wife’s objection; the children will be missing school.  That is the case.  They will be missing three weeks of school.

12. However, whilst that I accept it is the wife's belief that G in particular would be disadvantaged, it is not the belief of the Head of Middle School or the Head of Upper School.  Correspondence between the husband and L School is attached to his affidavit in Annexure “KAL1” and “KAL2” and in short Mr B, who is the Head of Middle School, and Mr M, who is Head of the Upper School, do not see a difficulty.  They recognise, they say, in their joint letter that whilst it is important in the husband's eyes for him to attend the reunion, they understand that he has no control over the date.  But relevantly they go on to talk about what this opportunity will provide for the three children in sharing the experience.  They note that it would be logical that the husband would also visit his family in South Carolina whilst in the United States;  they understand and accept this will take extra time;  they say that arrangements can easily be made for G to do his exams and appropriate work can be provided for S and A, if this is required.  They conclude by saying that they appreciate that there is significant educational value in this trip and are therefore happy to lend their support for the husband to take the three children away from school for that time.

13. Mr Glover has challenged the question of “significant educational value”.  It is not clear from the letter precisely what educational value the gentlemen involved saw in the trip, but they are, as it were the experts in education.  They thought it was significant.  If I were to speculate, I could say, of course, that travel alone to another country, the opportunity to visit an institution like H and to participate in many of the activities that have been planned would of itself possibly constitute educational value.

14. The wife was clearly not pleased when she was provided with a copy of the letter from L School and took it up with the principal herself in a letter which is annexed to her affidavit (Annexure “LL1”).  She put her case.  She is critical of the fact that the school did not have the courtesy to send her a copy of the letter - the letter being the one that was sent to the husband - and also because the matter was not discussed with her.  She has raised in her letter certain matters with the principal which are a matter for her, but relevantly there has been no response to that letter, at least that she has put before the Court, and the only evidence before the Court is that of the other gentlemen, to whom I have already referred, who do not see the matter as presenting a problem for the children and who indeed envisage the proposal as being of value to them.

15. To my mind the arrangements that have been proposed for the children - and I have given consideration to the program which the wife has annexed to her affidavit - do not simply constitute childminding, nor do I think they are banal, as appears to be the wife’s view, at least as expressed to the principal of L School.  They provide the children with opportunities for recreation and cultural activities and those, of course, are some of the activities which would be undertaken, if it is desired to do so, whilst the adults or perhaps simply the husband is doing whatever graduates do at 25-year reunions.  The program does provide, however, should the husband wish, for activities which whilst outside his own activities, do not mean that the family as a whole could not or would not be able to participate.  The program provides for a number of different groups which depend on the age groups of the children and the content ranges from a magic show for the very little or reasonably little ones to attendances at an aquarium, attendance at a “Cogen” tour, beaches, participation in a community service project, bowling, museum of science.  As I say, the activities are many and varied and are clearly designed with the ages of the children in mind.

16. The husband would have the opportunity also and more to the point, so would the children, of seeing subsequent to the attendance at the reunion, members of the husband's extended family.  His parents are the only grandparents that the children still have.  They are in their 80s and whilst one always hopes that the children will continue, of course, to have the grandparents as part of their life, albeit geographically removed, it is reasonably logical to approach the matter on the basis of seeing them whenever possible.  These grandparents were out in Australia earlier this year.  There is a difference between the husband and wife as to the period of time that they were here but, in any event, it is the intention that the children - setting aside probably G - would be visiting their paternal grandparents.  The husband also has two siblings who live in the United States.  One has a 13-year-old daughter, the other has children who are somewhat older.  They have not seen each other and the children have not seen them since 2004.

17. I think the other matters raised by the wife concerned the children perceiving themselves to be indulged by this opportunity and the detriment of not understanding what goes into the provision of private school education.  She raises also the point that A will be spending quite a bit of time this year either abroad or on holiday.  He has the opportunity of going skiing as well as overseas and she says finally in this particular area of her material that S is not interested in meeting overseas American alumni.  I think that is probably right.  It does not mean that S would not have a beneficial experience by being overseas, either at the university or with members of her extended family.

18. The other matter raised on behalf of the wife and indeed in her affidavit, is the Homeland Security Advisory Alert from the US government which puts the US threat level as “high” on domestic and international flights.  I note that that was updated as at 24 May.  The threat level extends to domestic and international flights and, looking at the wife’s affidavit was seemingly of particular importance in circumstances where at one stage it was envisaged that G might travel alone from the United States to Germany so that he could attend the trip to Germany as well.

19. The proposal to my mind, as set out in the husband's material, but looking at additional material which the wife has set out too, and I am talking here about the H program for the children of graduates, does provide the children, in my view with an opportunity to participate as a family with their father at a time which is significant to him and also to participate with their father and other members of his family at times which are certainly such that they will require absence from the school but which, according to the only evidence before the Court, will not prejudice them in any way.  To my mind it is in the children’s best interests that they have the opportunity to do this.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate: 

Date:           28 June 2007

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