R and K - [2005] FMCAfam 325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & K

[2005] FMCAfam 325

FAMILY LAW – Children – application to travel overseas on holiday – mother’s ties to the United States – security.

Marriage of Kuebler v Kuebler (1978) FLC 90-434
Line v Line (1997) FLC 83843

Applicant:

Respondent:

File Number:

PAM 81 of 2002

Judgment of:

Emmett FM

Hearing date:

5 May 2005

Date of Last Submission:

5 May 2005

Delivered at:

Parramatta

Delivered on:

5 May 2005

REPRESENTATION

Ms SR appeared on her own behalf

Mr SK appeared on his own behalf

ORDERS

The children ARK, born 23 March 1993 and DAK born 2 August 1994 (“the Children”) be permitted to leave the Commonwealth of Australia with the Applicant Mother for up to 5 weeks in 2005 and each alternate year on the following conditions:
(a)That neither of the Children be absent from school for more than 10 school days for the purpose of overseas travel each alternate year;
(b)That the Applicant Mother provide to the Respondent Father no less than 28 days prior to travel a copy of airline tickets in respect of each child;
(c)That the Applicant Mother provide to the Respondent Father no less than 28 days prior to travel a detailed itinerary of the contact details where each of the Children will be staying and where they can be reached for the duration of the travel period.
Upon compliance with the conditions above the Respondent Father is to deliver to the Applicant Mother within 7 days each of the Children’s passports and upon return the Applicant Mother is to deliver to the Respondent Father within 7 days each of the Children’s passports.
The Applicant Mother is to ensure that the Children telephone their father no less than once in every 14 day period that the Children may be away.
The Respondent Father is to ensure that each of the Children’s passport remains current.
Both parties are to share equally any cost involved in the renewal of any passport in respect of each of the Children.
The Amended Application filed 1 May 2005 is otherwise dismissed.
Orders sought in the Respondent Father’s Response filed 16 March 2005 are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAF 81 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Applicant Mother seeks an order from the court that the children of the parties presently aged 12 and 10 be permitted to travel with her to Kansas City, Missouri in the United State for a period of up to 5 weeks in 2005 and each year thereafter, on condition she provides to the Respondent Father an itinerary and flight information once month prior to departure. The Applicant Mother also seeks an order restraining the Respondent Father from refusing to consent to issuing a passport for the children.
Prior to making a determination in respect of this Application, I put to the Respondent Father that if the Applicant Mother was prepared to restrict her Application to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R and K

Details

AGLC: R and K [2005] FMCAfam 325
Case: [2005] FMCAfam 325
Decision Date: 5 May 2005

CaseChat Overview and Summary

In the Family Court of Australia, the matter of R and K involved a dispute between the Applicant Mother and the Respondent Father regarding the travel arrangements for their two children, ARK and DAK. The Applicant Mother sought permission for the children to travel overseas with her under specific conditions, which the Respondent Father contested. The court was required to determine whether the proposed travel conditions were in the best interests of the children.

The primary legal issue before the court was whether the proposed travel conditions were appropriate for facilitating the children's overseas travel without causing significant detriment to their welfare or their relationship with the Respondent Father. This involved balancing the Applicant Mother's desire to take the children on international trips with the need to maintain the children's stability and connection with their father. The court also had to consider the potential impact of the travel on the children's education, given that they would be away from school for part of the school year.

After reviewing the evidence and submissions from both parties, the court determined that the proposed travel conditions were in the best interests of the children. The court emphasised the importance of the children maintaining their educational continuity and their ongoing relationship with their father. The detailed travel arrangements, including the limited absence from school, the provision of travel details to the father, and the requirement for regular contact between the children and their father, were considered adequate to support these objectives. The court concluded that the benefits of the proposed travel, including the cultural and educational experiences, outweighed any potential detriments. The court made specific orders regarding the children's travel, passports, and communication with their father, ensuring that both parents shared the responsibilities and costs associated with the children's travel.

In light of the above, the court made orders permitting the children to travel with their mother under the specified conditions. The court also addressed other ancillary matters, including the handling of the children's passports and the sharing of passport renewal costs. The court dismissed other orders sought by the parties that were not aligned with the best interests of the children.

Orders

Orders of the court

The children ARK, born 23 March 1993 and DAK born 2 August 1994 (“the Children”) be permitted to leave the Commonwealth of Australia with the Applicant Mother for up to 5 weeks in 2005 and each alternate year on the following conditions:

(a) That neither of the Children be absent from school for more than 10 school days for the purpose of overseas travel each alternate year;

(b) That the Applicant Mother provide to the Respondent Father no less than 28 days prior to travel a copy of airline tickets in respect of each child;

(c) That the Applicant Mother provide to the Respondent Father no less than 28 days prior to travel a detailed itinerary of the contact details where each of the Children will be staying and where they can be reached for the duration of the travel period.

Upon compliance with the conditions above the Respondent Father is to deliver to the Applicant Mother within 7 days each of the Children’s passports and upon return the Applicant Mother is to deliver to the Respondent Father within 7 days each of the Children’s passports.

The Applicant Mother is to ensure that the Children telephone their father no less than once in every 14 day period that the Children may be away.

The Respondent Father is to ensure that each of the Children’s passport remains current.

Both parties are to share equally any cost involved in the renewal of any passport in respect of each of the Children.

The Amended Application filed 1 May 2005 is otherwise dismissed.

Orders sought in the Respondent Father’s Response filed 16 March 2005 are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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