RYDE and STROUT

[2016] FCWA 22

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: SUPPRESSED

CITATION: RYDE and STROUT [2016] FCWA 22

CORAM: THACKRAY CJ

HEARD: 15 FEBRUARY 2016

DELIVERED : Ex tempore

FILE NO/S: PTW 7023 of 2011

BETWEEN: MR RYDE

Applicant

AND

MS STROUT
Respondent

Catchwords:

CHILDREN - TRAVEL - Orders made permitting the father to take the child on a holiday to [Country A].

Legislation:

Family Law Act 1975 (Cth), s 60 CC

Category: Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Mr Scott

Solicitors:

Applicant: Self Represented Litigant

Respondent: CMS Legal

Case(s) referred to in judgment(s):

Rice and Asplund (1979) FLC 90-725

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application before the court today is that of [Mr Ryde], filed 19 February 2015, in which he seeks liberty to remove the boy, [Lachlan], who was born on [in] 2006, from Australia for a two-week period; for the consent of the mother, [Ms Strout], to the issue of a passport to be dispensed with; that the residency order in favour of the mother that currently is in place be suspended for the period that he is away; and that she sign any travel documents, affidavits or birth certificates required to comply with what have been described as “the new child trafficking laws in [Country A]”.

2I also have before me the Form 1A response of the mother filed on 18 June 2015, in which she essentially opposes the father’s application; seeks orders to prevent the father from serving court documents, or sending private or confidential documents between the parents in Lachlan’s schoolbag; and seeks an order that no other applications for parenting orders or a passport for Lachlan be made in the future.

3The parties were married in Country A in 2004. The family migrated from Country A to Western Australia in November 2008, and they have remained here ever since, never returning to Country A. The father’s family, including his divorced parents, remain in Country A. His sister and her family, including two cousins of Lachlan, one of whom is much the same age as him, remain in Country A, and there are other friends of the father, including godparents, who are in Country A. There seems to be no family here, and none of the family has visited here. The mother was brought up by her grandparents, who have now passed on, and she does not have a relationship with her parents, who also reside in Country A.

4The parties separated fairly soon after arriving in Australia, in December 2010. The circumstances in which that occurred are in dispute. Since then, Lachlan has been living primarily with his mother and spending quite a deal of time with the father. The present arrangement is a nine-five fortnightly arrangement, but the father spends additional time with Lachlan during school holidays. For example, Lachlan recently spent 11 days with the father, and has previously spent a similar period of time with him.

5Although they have been to court on a few occasions, the parties have largely managed to sort things out for themselves. It is to their credit that they have been able to do so, and it is very much to their credit that Lachlan appears to enjoy a very good relationship with both of them. The case is certainly very different to the other cases that the court has had to deal with today, so the parents are to be commended for managing what is always a very difficult thing as well as they have, notwithstanding that I can see from the affidavit evidence that there has been some degree of conflict and disagreement between them.

6The orders that I am making are parenting orders under the Family Law Act1975 (Cth) (“the Act”). I am meant to go through a great, long checklist of matters that are set out in s 60CC. I do not propose to do so, but I have taken into account all of those matters. In giving my reasons, I will touch on what I see as being the most important of the s 60CC factors as far as Lachlan is concerned. The Act makes clear that in arriving at my decision, my primary consideration is Lachlan’s best interests and not the interests of the parents, to the extent that there is any conflict.

7I think the best way to explain the decision that I have reached is to set out what I understand to be the mother’s concerns, and to then set out the reasons that I have found them, largely, not to be well founded.

8First, the mother has expressed concern in her material about what she regards as the father’s violent and controlling behaviour towards her during the relationship and subsequently. The father has largely denied those allegations, and the matter has not really been explored in the evidence today. I am therefore not in a position to conclude whether one party is telling more of the truth than the other in this respect. I think what has to be said is that Lachlan does spend a very substantial amount of time in his father’s care, and that the father’s alleged violence and alleged controlling behaviour would be a factor, whether the holiday was to be spent here in Country A.

9The other concern the mother has, and one can certainly forgive her for having this concern, is that once Lachlan is outside of the jurisdiction of the court, it would be difficult, if not impossible, for her to secure his return. In that regard, she points to a number of matters that are concerning to her, including that the father has sold his private vehicle, has ended his private mobile phone contract, has no relatives in Australia and might be seen as not having great ties here.

10The father says that he has come here and remained here for Lachlan, is well settled into the local community and has friends here, but perhaps most significantly, he is building a home here. He has obtained a property, he is well into having a home built on it and he has been putting his funds towards this. In my view, this is a very strong indication that the father is not a flight risk.

11It has been put that the father could treat the property as an investment property and/or dispose of it. My finding is that he is not going to do that, but in the event that he did go to Country A and did not return, then the mother’s options are very clear. She could come to the court to effectively freeze the property, have it sold and have the funds made available to her in order to secure Lachlan’s return.

12In terms of the enforceability of the arrangements for Lachlan to be returned to Australia, Country A is a party to the Hague Convention, and that gives some degree of comfort. The mother draws attention to the fact that it may be possible for the father to leave Country A and go to a country that is not a Hague Convention country, but for the reasons the father has advanced in the hearing today, I consider that to be highly unlikely, and I think it improbable that he would not return Lachlan.

13Apart from anything else, Lachlan is clearly well attached to his mother. While he is comfortable spending time with his father, I think he would be extremely distressed in the event that he was kept from his mother for an extended period of time. In itself, that would be a protective feature to ensure that Lachlan is returned.

14The mother’s other concern is that Lachlan has not spent as long as 14 days away from her. She is concerned about how he might cope with a longer period of absence than has previously been the case. However, Lachlan will turn 10 years of age this year. He is maturing, and he is used to being away for as long as 11 days. I think he will be able to cope with the additional time, provided he is able to keep up regular telephone contact with his mother in the way he has in the past. That has involved contact as often as every couple of days.

15The father says he has no objection to Lachlan speaking to the mother each day while he is away. I am personally inclined to think that is too often and that the boy should be only contacted every couple of days, but the father is agreeable to it being daily. The mother would like to keep in regular contact, and I do believe that she will have a degree of apprehension while Lachlan is away. Therefore, the order will involve contact every day.

16The matter that the mother raises which, from my point of view, is the most concerning, relates to the security situation in Country A. She is troubled that there is a greater prospect of harm to Lachlan in Country A. The father says this is not the case, that Lachlan will be safe there, and that he would not be going if he thought Lachlan was going to be unsafe, because he would not put Lachlan or himself in jeopardy.

17In this regard, it is important to look at the Australian Government’s travel advice, which indicates that visitors to Country A are advised to exercise a high degree of caution. That high degree of caution relates to the overall security situation in Country A. However, as the father points out, there are countless tourists who go to Country A, including local Country A residents returning to visit. It also has to be said that the security warning for Country A is the same as for [Country B] at the present time, which is visited by tens of thousands of West Australians every year. Even [Country C] has the same level of travel advice at the present time. Accordingly, I do regard this as a serious factor, but it is not a factor of such overwhelming importance that it ought to prevent the travel.

18The mother was also concerned about the length of the trip to Country A, which is a nine-hour direct flight to [City A]. Apart from when Lachlan came to Australia as a small child, the longest trip he has been on was a flight to [City B] with his mum, which was about five hours. I am not sure that anybody enjoys long distance international travel, but I think there is a possibility that a nine-year-old boy would find it as interesting as he might find it tiring. I simply do not see the length of the travel as being a concern of any significance.

19There are three reasons why I consider that Lachlan should be permitted to have the holiday.

20Generally, there is advantage to children in international travel, or travel of any sort. It broadens their horizons, gives them something to talk about and think about, and allows them to see how people live in other parts of the world.

21I think the trip would also be a good opportunity for Lachlan to further build on his relationship with his father, perhaps in the same way as it was good for him to go on holiday to City B with his mum.

22However, the primary reason I consider that Lachlan should be permitted to travel is because of the opportunity for him to build some relationship with his extended family. The Act talks of the significance of a child’s relationship with other members of their family, including their grandparents. Lachlan is being brought up largely separate from family. There is nothing necessarily wrong with that, but in order to see where he fits in the overall scheme of things, I think it would be very much to his advantage to have physical contact with all of the people who have been mentioned in the evidence, particularly cousins, who may be the family that he will have longer on this planet than anybody else, including his parents. Although the family has not come to Australia, there has been regular enough contact by telephone and Skype. To reinforce the bond that has been created electronically by some face-to-face time would be very much to Lachlan’s advantage.

23I should also mention that at the time the parents consented to orders back in July 2011, there was an order that they not take Lachlan out of Australia without the consent of the other or an order of the court. So there was at least the contemplation of the possibility that this might happen.

24As to the conditions on which the travel be permitted, I have already mentioned the daily telephone calls. I do not consider that any other conditions are necessary, other than that the father provide the mother, at least 14 days prior to departure, a full itinerary and contact details of where they will be, together with a copy of a fully paid return ticket.

25Turning to the orders that are sought by the mother, these were not supported by any of the evidence, or referred to in the papers for the judge or in the oral evidence. However, it is apparent that on at least one occasion in the past, the father has sought to have significant documents transported between the two homes in what he considered to be a secure way, but which was not appropriate. The father accepts that he will not do this in future. Given that it seems not to have been a regular event, I am not proposing to make any court orders, but I would certainly take a dim view if any further significant documents, particularly court documents, were passed back or forward between the parents in Lachlan’s bag.

26As to the other orders sought by the mother about the father being prevented from making any further applications, it follows from what I have said that there might be some future occasion when the father wants Lachlan to go to Country A. If there was objection to it on that occasion, it would not be appropriate to stop the father from coming back to court about it, and I cannot, at this point, stop either parent from making any further applications for parenting orders. I am aware that the father sought to make an application in the past and was unsuccessful, I gather, by application of the rule in Rice and Asplund (1979) FLC 90-725. However, there is a legislative regime that applies when it is sought to prevent people from making applications to the court. At present, neither party qualifies to obtain such an order under that legislative regime, and I therefore decline to make it.

27For all of those reasons, I make the following orders:

1.The Applicant, [MR RYDE], have liberty to remove the child, [LACHLAN RYDE] born [in] 2006 from the Commonwealth of Australia for a period of two weeks for the purpose of a holiday to [Country A] and to that end, the necessity for the consent of the Respondent, [MS STROUT], to the issue of a passport to the said child be dispensed with.

2.Subject to any other requirements of the Department of Foreign Affairs and Trade, a passport be issued to the said child to enable him to leave the Commonwealth of Australia for the purpose of holidays.

3.Forthwith upon the child’s return to Australia the child’s passport be delivered to the Respondent for safekeeping.

4.The Respondent sign any and all travel documents, affidavits and certificates required to comply with the new [Country A] Child Trafficking laws to [Country A] provided the Applicant prepares such documents and meet any costs associated.

5.Not later than 2 weeks prior to departure, the Applicant provide to the Respondent a full itinerary for the proposed holiday together with contact details throughout his absence.

6.Whilst the child is away the Applicant facilitate telephone contact between the Respondent and child on a daily basis or such less frequent contact as the Respondent may determine.

7.The residence order between the Respondent and child be suspended during the two week period.

8.The application and response before the Court be dismissed.

I certify that the preceding [27] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate