RANFORD & MYLES

[2019] FamCA 1004

FAMILY COURT OF AUSTRALIA

RANFORD & MYLES [2019] FamCA 1004

FAMILY LAW – EX PARTE APPLICATION – where application sought to be dealt with urgently – where nearly 17 year old child proposes to travel to USA to participate in scholarship selection process – where mother to accompany child – where father indicates that he will frustrate child’s travel out of Australia.

FAMILY LAW – EX PARTE APPLICATION – where multiple attempts were made to contact respondent father to no avail – times abridged and application heard immediately.

FAMILY LAW – PARENTING APPLICATION– consideration of best interest of child – factors which inform identification by court of child’s best interests in this particular case – where court satisfied that mother and child would return to jurisdiction as proposed.

FAMILY LAW – PARENTING APPLICATION – where application granted subject to mother giving undertaking as to damages in the usual terms and reserving liberty to father to apply to vary or set aside orders or as he may be advised.

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth)

Kuebler & Kuebler [1978] FamCA 26
Line & Line (1997) FLC 92-729

APPLICANT: Ms Ranford

RESPONDENT: Mr Myles

FILE NUMBER: MLC 9380 of 2019

DATE DELIVERED: 5 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schlicht

SOLICITOR FOR THE APPLICANT: Simon Nixon & Associates

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. The mother have permission to proceed with her Application in a Case filed this day on an ex-parte basis.

2. The mother be and is hereby permitted to remove the child X born … 2002 (‘the child” “X”) from the Commonwealth of Australia on or about 6 December 2019 for the purpose of travelling to the United States of America and notwithstanding that the child’s father has not consented to such travel.

3. The husband be and is hereby restrained from stopping, attempting to stop and/or communicating with authorities to prohibit the child X from travelling out of Australia on or about 6 December 2019.

4. The wife return the child X to Australia by not later than 15 December 2019 and upon her arrival contact the husband by email to confirm that the child has been returned to Australia.

5. I reserve the issue of costs of this day.

6. I reserve liberty to apply to the husband to seek that this Order be varied or discharged or as he may be advised and to do so as a matter of urgency. Any such application may be listed before me either in Court or by an electronic hearing.

7. The solicitors for the wife forthwith serve the Application in a Case of the wife filed this day and the evidence in support on the husband by electronic means.

8. My reasons for decision this day be transcribed and when settled placed on the Court file and made available to the parties.

9. My Associate send this Order electronically to the parties forthwith upon being settled and sealed.

10. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

1. The email communication from the practitioner for the wife to the husband dated 5 December at 11.11 am be marked Exhibit “M1” and remain on the Court file.

2. The letter from the practitioner for the wife to the husband dated 4 December 2019 be marked Exhibit “M2” and remain on the Court file.

AND THE COURT NOTES:

A.The undertaking of the wife, Ms Ranford, given personally this day to pay as directed by the Court to any person restrained or affected by the restraints imposed by the injunction granted today, or of any continuation thereof, such compensation as the Court may in its discretion determine.

B.That at 11.56 am the Court left a message on the telephone of the husband that proceedings were taking place and provided a number for him to call back on. My Associate made calls to the mobile telephone of the husband at 11.57, 11.58, 11.59 and 12.01 pm which all went to voice mail.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myles & Ranford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9380 of 2019

MS RANFORD

Applicant

And

MR MYLES

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as an urgent ex parte application to facilitate the travel to the United States of America of the eldest child of the marriage, X, born in 2002. 

2. The parties to the proceedings are the mother and the father.  The proposed date of travel is tomorrow, 6 December 2019, and the expressed purpose of the travel is for X to participate in the selection process for a place in prestigious universities in the United States of America on the basis of his athletic prowess and eligibility to be a scholarship student there.

3. The documents upon which the mother relies are her Application in a Case, filed this day.  The Application was set down for hearing at 11.30 am before me.  I am informed from the bar table that, at 11.11 am this morning, an email was sent to the father which reads:

   Dear Mr Myles,

   Further to the email sent by Nadia Dal Bo of Simon Nixon & Associates yesterday at 4 December 2019 at 4.49 pm, we advise that, as we have received no response from you, the matter will be heard before Justice Bennett in Courtroom 4G of the Family Court in Melbourne at 305 William Street at 11.30 am today, 5 December 2019.

4. A copy of that email has been handed up and I mark it exhibit “M1”.  I have read the other documents on the Court file which relate to leave to apply for an alteration of property interests, in which the father represents himself.  I note that the email address to which exhibit “M1” was sent, accords with the email address provided by the father as his email address on an amended application initiating proceedings, filed as recently as 3 November 2019. 

5. By way of further precursor to today’s hearing, counsel for the wife has handed up correspondence sent by his instructing solicitors to the father yesterday.  I mark that document exhibit “M2” and direct that it remain on the Court file.

6. For the purpose of the transcript, I read into it the following:

   “Dear Mr Myles,

   Ms Ranford ats Mr Myles

   Family Court Proceeding No. MLC9380/2019

   We refer to the abovementioned matter and advise that we now act for Ms Ranford. We enclose copy Notice of Address for Service by way of service.

   We note from your email to our client’s then solicitors, H Lawyers, dated 29 November 2019 that you have threatened to prevent your son, X, from travelling to the USA on 6 December 2019 to meet with prospective universities who are offering him education scholarships.

   We put you on notice that should we not receive your written confirmation by 7.00 pm tonight, 4 December 2019, that you will not prevent X from undertaking this travel we hold instructions to make immediate application to the Family Court seeking injunctive and declaratory relief and costs to be heard tomorrow.

   Should such an application become necessary this letter will be produced on the question of costs.

   Kindly ensure this letter receives your urgent attention.

   Yours faithfully,

   Nadia Dal Bo

   Solicitor

   RECORDED  :  NOT TRANSCRIBED

7. The matter was called at the door of the Court and there was no response to the call.  Furthermore, when the sitting commenced, I directed that a telephone call be placed to the telephone number which appears in the husband’s documents as his telephone number, being ….  That was done and the telephone rang on one occasion and then went straight to message.  I directed that another call be placed and, when the message facility became operative, a message was left in the following terms:

   This is a call from the Family Court of Australia at Melbourne, at which there are proceedings underway concerning your son’s eligibility and ability to travel to the United States of America this coming weekend.  It is suggested that you contact the Family Court of Australia as soon as possible on telephone number … and ask to speak with Ms B.

8. As I deliver these reasons, there has been no appearance by or on behalf of the father in Court and there has been no return phone call placed by him to the telephone number provided to him. 

9. I regard the matter as proceeding ex parte but merely detail what endeavour was made by the Court to have the father participate in the proceedings.  Ideally, he should be able to participate.  It is a fundamental right to be able to respond to applications made against a person for orders which affect their rights or entitlements or, in this Court, their children. However, there are some circumstances which present exigencies, which mean that applications must be dealt with without the other party having been accorded procedural fairness.  This is such a case.

10. I note that the mother enters into the usual undertaking as to damages.

11. Based on the material which has been tendered this morning and the material in support of the application, to which I will come to shortly, I am satisfied that the father is aware that some proceedings are likely to be taken which will facilitate the ability of X to travel to America tomorrow, although he perhaps does not know the precise detail of those proceedings.

12. The mother relies upon her affidavit, sworn or affirmed on 4 December 2019.  It is not difficult for a practitioner who took an affidavit to say whether it was sworn or affirmed and, in future, this practitioner should do so.

    RECORDED  :  NOT TRANSCRIBED

13. I am told that the mother’s affidavit was affirmed on 4 December 2019. 

14. The mother deposes that X is the eldest of her four children with the husband. X is an extremely talented athlete and has made a number of representative teams, the most recent being a member of an elite sports team competing at the junior world championships in C Town, Country D this year. She further deposes:

    4.As a result of his athletic success, a number of college universities in the USA have reached out to him to see if he would be interested in enrolling at their universities on scholarship.  He is also assisted by the fact that he was born in the USA.

    5.There were quite a number of universities or colleges interested in recruiting X and over the past year there have been numerous discussions with these various colleges.  Obtaining a scholarship with a US college means that he will get his tuition, accommodation, meals and books for free.  A normal fee paying student would expect to pay between AUS$80,000 – AUS$120,000 per year.

    6.Once a student has narrowed down the colleges he wishes to choose from and those colleges are interested in the athlete, then official visits are arranged.  These visits last for 48 hours and the respective college pays for all travel and accommodation for the student.  Where there are a number of colleges, arrangements are made between those colleges in sharing the travel expenses.  However, the athlete does not have to pay for any of these travel and accommodation expenses.

    7.After a number of discussions over the recent six months, arrangements have been made for X to fly to the USA and visit two colleges, E and F, and the G University.

    8.        Attached and marked Attachment “D” is a copy of:

    (a)      correspondence from E University;

    (b)      correspondence from F University; and

    (c)      correspondence from the G University.

    9.On 12 November 2019 H Lawyers, my former solicitors, wrote to the solicitors for the Applicant Husband and advised as follows:

    “…Please be advised that our client will be travelling in the US:

    (a)      on the date of the case assessment conference.  The travel is for X to visit various universities he hopes to attend next year.”

    Attached and marked Attachment “E” is a copy of the letter dated 12 November 2019.

    10.By letter dated 29 November 2019, my former solicitors wrote to the Applicant Husband and stated, inter alia, as follows:

    “Otherwise, as you are aware, our client will shortly be departing Australia with X for a trip to the USA so X can visit universities there.  Our client will not be returning until 15 December 2019.  She will not be in Australia on the date of the case assessment conference on 12 December 2019.”

    Attached and marked Attachment “F” is a copy of the letter from H Lawyers date 29 November 2019.

    11.As a result of this letter, my former solicitors received an email from the Applicant Husband on 29 November 2019 at 3.20 pm which stated as follows:

    “Thanks Ms P for your inaccurate advice, no wonder you and [Ms Ranford] get along so well…

    I will be speaking with my very good contacts at the Department of Human Services and have X stopped from clearing customs based on y concerns that I have not been informed directly by [Ms Ranford] or asked if my son has my permission to leave the country.”

    Attached and marked Attachment “G” is a copy of the email dated 29 November 2019.

    12.On 3 December 2019 the Applicant Husband texted my son X requesting details of the trip.  X was extremely concerned that his father was going to stop him from visiting the various colleges in the USA.  In one of the texts which is exemplified throughout the exchange, X said as follows:

    “Dad

    I am absolutely lost for words that you would want to destroy the biggest opportunity of my life, that I have worked so hard for so many years.  I have got myself here, not you so how dare you take it away.

    This moment will secure my future, it is completely within my best interests and what I have dreamt of for years.  I will never forgive you should you action your threats.”

    Attached and marked Attachment “H” is a copy of the text message exchange between the Applicant Husband and X dated 3 December 2019.

    13.The Applicant Husband has not withdrawn his threat to stop X from leaving Australia.  As a result I am extremely concerned that he will carry out his threats and ruin what ought to be an exciting and valuable time for our son X.

    The annexures referred to were annexed.  The evidence presented by the mother presents a compelling case to permit the child to travel; notwithstanding, I am very mindful of the fact that I have not heard the father’s side of the story.

15. As the mother’s material makes clear, there are other proceedings between the parties in this Court and I have had the opportunity to look at documents associated with those proceedings.  There is the father’s Amended Initiating Application, filed on 3 November 2019, to which I have already referred.  He seeks, in that, leave pursuant to section 44(3) for leave to institute proceedings for an alteration of property interests out of time and then he details a number of property orders he would seek in the event that leave is granted, and parenting orders.  Notably, he doesn’t seek, as best I can see, an order restraining either him or the wife from removing any of the children from Australia.  I am not suggesting that he agrees to the children being removed but it does not appear that international travel is a burning issue between the parents. 

16. There is rather more of a history of the parties to the proceedings set out in the husband’s material, including his affidavit sworn 25 October 2019, than in the wife’s affidavit sworn in support of this Application.  What follows is drawn from or corroborated by the husband’s material.

17. The husband is 50 years old and his occupation is a business director.  The wife is about 47 years old and she is a healthcare professional.

18. They were married in 2001, separated in 2016 and divorced in 2018.  There are four children of the marriage:  X, born in 2002, Z, born in 2005, Y, born in 2005, and W, born in 2007.  Notably, the mother seeks only to remove X from Australia and the twins and their younger brother will remain in Australia.

    RECORDED  :  NOT TRANSCRIBED

19. X is a student in Year 11 at J School.  The girls are students at K School, where Y and Z are in Year 8.  W is in Year 6 at L School.  The father deposes that, at the time he and the mother separated (2016), he was living and working in Country M and commuting back to Australia to see the children. The husband returned to live in Australia permanently in December 2017.

20. Relevantly, the husband deposes that the primary asset of the relationship is a house at N Street, Suburb O, which was purchased in 1998 by him, three years before his marriage to the wife.  The husband puts the value of the property at N Street, Suburb O at approximately $1.5 million. The wife and children live in this property now.

21. The husband deposes that, historically, the wife and he moved to the United States in 2000 for him to pursue employment opportunities.  They married in Australia in 2001 but then returned to the United States of America, where all four children were born and he worked there between 2000 and 2010. He then worked in Country M from March 2010 until 2017.  The husband deposes:

    24.[Ms Ranford] and the children returned to live in Australia in 2014.  They lived in the Suburb O property.

    25.The home loan secured by the Suburb O property was paid off during the marriage in 2014.  The Suburb O property is unencumbered.

22. The wife gave viva voce evidence at my direction. Her evidence was that she has no property or family members in the United States.

23. An order to remove a child from Australia is a parenting order under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Court must regard the best interests of the child as the paramount consideration. “Paramount consideration” means that it is not the only consideration and that I also take into account the views of the parents and other matters.

24. As far as the legislative pathway is concerned for the ascertainment of what is in a child’s best interests, reference can be made to section 60CC of the Act but such matters for consideration can be of little assistance in an application to have a child travel out of Australia.

25. There is insufficient time in which to request an Independent Children’s Lawyer be appointed to represent X’s interests.

26. I discern X’s views from the correspondence between X and the husband of 3 December 2019, which is annexed to the wife’s affidavit (and extracted above).  I am satisfied that X wishes to travel and will be seriously upset if not entitled to do so.

27. In Line and Line (1997) FLC 92-729 some factors relevant for consideration in an international travel case were said to be:

    a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests or the residence of close family or friends here);

    b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

    c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests or the residence of close family and/or personal friends there); and

    d)Whether the country of travel was a signatory to the Hague Convention.

1. The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) is in force between the United States and Australia. However, it is of no assistance in this case as X is 16 years old and the 1980 Convention no longer applies to him. Article 4 of the 1980 Convention provides, inter alia, that the “Convention shall cease to apply when a child attains the age of 16 years”. There is an arrangement for the enforcement of orders between Australia and the United States under Part VII – Division 13 of the Act.

2. In Kuebler & Kuebler [1978] FamCA 26 (at 6), it was held that:

   The considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, are:

   a)The length of the proposed stay out of the jurisdiction;

   b)The bona fides of the application;

   c)The effect on the child of any deprivation of access;

   d)Any threats to the welfare of the child by the circumstances of the environment;

   e)The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

3. In this matter, reading the documentation relied upon by the mother and those filed in support of another application by the father, it does not appear to be a matter where there is an overriding concern about the non-return of the wife or the child to Australia. 

4. The statement by the father on Friday, 29 November 2019, which appears as exhibit “G” to the mother’s affidavit for this application, is the basis upon which I conclude that the husband does not want the child to travel.  It reads as follows:

   I will be speaking with my very good contacts at the Department of Human Services and have X stopped from clearing customs based on my concerns that I have not been informed directly by [Ms Ranford] or asked if my son has my permission to leave the country.

5. The above statement is also the basis of the wife’s application for orders to prevent the husband interfering with X’s trip tomorrow. The husband does not raise any concern about X’s safety or having to forgo time with X.

6. The mother seeks only to take one of four children out of Australia.  To me, that speaks of someone who is likely to be returning to parent the three younger children of the relationship, all girls.

   RECORDED  :  NOT TRANSCRIBED

7. I am informed that the mother is in occupation of the real property, which the husband describes as the principal asset of the marriage.  Therefore, she has accommodation here.  It does not seem that she has the motive to remain in the United States of America. 

   RECORDED  :  NOT TRANSCRIBED

8. In all of the circumstances, I’m satisfied that it is in X’s best interests to be able to travel to the United States to participate in what is an exciting and significant opportunity for his advancement.  It is unfortunate that he does not go with the agreement of the father but, from the material which I have available, doing the best I can in the very short time that is afforded to me and without having had the benefit of hearing the husband in person, I’m satisfied that this is an order which is proper and which I should make.

9. I have a high degree of satisfaction that the wife’s promise to return to this jurisdiction will be honoured. That said, the husband will have an opportunity to make separate application to vary or discharge this order at short notice and that application can be listed before me; however, absent such an application and a determination of that application in favour of the father, the child must travel. 

10. There is no watch list order, so the orders should not necessarily be served on the Australian Federal Police but the wife must definitely go to the airport with at least two copies of the Order I have made. For case management purposes, I note there is a court event which falls whilst the wife is out of Australia. If the parties require judicial determination of a matter relevant to re-scheduling, they may approach the case co-ordinator and seek a listing before me as I have not read the court file in its entirety.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 December 2019.

Associate:

Date:  23 December 2019