Strahan & Strahan (No 8)

[2009] FamCA 1109

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 8) [2009] FamCA 1109

FAMILY LAW - CHILDREN – INJUNCTION – Interim proceedings – application by the husband seeking an injunction restraining the wife from taking the child overseas prior to the commencement of the school holidays – where the wife seeks permission to travel overseas with the child prior to the end of the school year – where the Court had recently heard the husband’s application to spend time with the child and reserved judgment – where the husband sought to spend time with the child at his school before the end of the year – where the wife advised of her intention to travel overseas with the child the day after the hearing of the husband’s application – where judgment was delivered and orders have now been made for the husband to spend time with the child at his school – where there would be insufficient time for the husband to spend time with the child as ordered prior to the end of the school year if the wife and child were permitted to travel overseas – where deferring the husband’s time until the New Year is not an option that is open – injunction granted restraining the wife from taking the child overseas prior to the commencement of the school holidays. 

Family Law Act 1975 (Cth)

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

INDEPENDENT CHILDREN’S LAWYER: Ann Bills

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 5 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 5 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Robinson & Mason

COUNSEL FOR THE RESPONDENT: Ms Pyke QC with Mr Holland

SOLICITOR FOR THE RESPONDENT: Pederick Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ann Bills & Associates

ORDER

1. That the wife be restrained and an injunction be granted restraining her from taking the child of the marriage S born … June 1996 overseas at any time prior to the commencement of the school holidays on 8 December 2009.

2. That the Application in a Case filed by the husband on 29 October 2009 and the Response filed by the wife on 4 November 2009 be dismissed and removed from the active pending cases list.

3. That the costs of the husband and the Independent Children’s Lawyer be reserved to the hearing on 25 November 2009.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 OF 2005

Ms Strahan

Applicant

And

Mr Strahan

Respondent

ex tempore reasons

1. I propose to deliver some short reasons and make an order today.  This is a situation which is now developing some urgency and I don’t have the luxury any more of reserving my judgment.  Thus the application before me today is the Application in a Case filed by the husband on 29 October 2009, wherein he sought an injunction restraining the wife from taking the child S out of school prior to the commencement of school holidays on 8 December 2009, and from taking the child overseas at any time prior to the commencement of school holidays on 8 December 2009.  That application is supported by an affidavit.  The wife has responded.  She filed a response on 4 November 2009, wherein she sought orders dismissing the husband’s application, and then an order that the child be permitted to travel overseas with her between 13 November and 4 December, and that the wife be permitted to remove him from the Commonwealth of Australia for that purpose, and that the Australian Federal Police be notified accordingly.

2. That application and response have to be considered in the context of certain reasons for judgment which I delivered this morning, and an order that I made providing for the child to spend time with the husband.  Those reasons and the order relate to an application filed by the husband on 24 August 2009, wherein he sought that he have time with the child on the basis of the husband attending at the child’s school at times to be agreed between the husband and the principal of that school, and that neither the wife nor the child be advised of the husband’s proposed attendance at that school.  To perhaps go back a step further, that application was based on certain recommendations made in a report dated 9 August 2009 by Dr C, the single expert in this matter, as to the approach that he suggested be adopted to attempt to re-establish contact between the child and his father.

3. In the end result, following a hearing on 20 October 2009, I have determined that it is in the best interests of the child for such an order to be made.  I have imposed certain limitations though on that exercise, but I do not need to elaborate on that in these reasons. 

4. The catalyst for the application now before me was that on 21 October the husband received a letter from the wife wherein she gave him three weeks notice that she would be travelling overseas with the child from Friday 13 November 2009 to Friday 4 December 2009, and then in that letter went on to deal with practical issues relating to the occupation by the wife and the child of a property in Europe.

5. That letter prompted a letter from the husband’s solicitors of 23 October 2009.  I will not repeat all that is in that letter, but the solicitors made the point that the proposed trip was not brought to my attention during the hearing on 20 October 2009, and they sought details of the travel and indicated that it was the husband’s case that it was inappropriate for the wife to take the child out of school at that time.  An undertaking was sought that the wife not travel overseas during the school term on the dates proposed and the solicitors advised that if that undertaking was not given that an application would be made to the court for an injunction.

6. There was a request by the wife’s solicitors for some time to take instructions, and ultimately they did, and the wife’s solicitors then responded by letter, presumably again faxed, dated 27 October 2009 to the husband’s solicitors confirming the details of travel insofar as advising the dates of travel, and the places of travel. They also repeated the request of the wife to attend to the various practical issues in relation to the accommodation in Europe within seven days of her departure. 

7. There was no undertaking given by the wife to not travel, and from that letter it was clear that she intended to pursue her travel overseas, and therefore the husband brought the application that is before me today.

8. Pausing there, and to again go back a step, the hearing of the husband’s application of 24 August 2009, although initially listed in August and heard on that day, was adjourned to 20 October 2009 and finally heard on that day. I heard submissions from the parties through their counsel and from the independent children’s lawyer.  For my part, there can be no doubt that the context of the application that the husband was making and the submissions that were made on that day was that if the husband’s application was to succeed then the period of time that the husband was looking to attend at the child’s school was before the end of this school year.

9. I do not have a transcript of the hearing on 20 October 2009, but I recall asking Mr Ackman, the husband’s senior counsel, as to whether he could give me some rough idea of when the husband, who lives in Hong Kong, proposed to come to Australia if I allowed him to do so and if I made the order that he sought, and Mr Ackman indicated that, according to my recollection and my notes, that the husband would be looking to come to Adelaide for a period of two weeks in November, and if he was successful in his application, he proposed two specific occasions of attendance at the school and two other occasions at some other time, namely a total of four occasions.

10. Thus, that adds weight to my view that there can be no doubt that the period of time that was being talked about was before the end of the school year and specifically in November.  I note that in paragraph 11 of the wife’s affidavit filed yesterday it is suggested that Mr Ackman submitted that there was to be two occasions in November and two occasions in December.  Presumably that is the wife’s and her legal adviser’s recollection.  It is not mine.  But in any event it does not matter for the purposes of these reasons, given that the timing could only be from the date of any order that I made if I was with the husband, up to the end of the school year, and it is common ground that 8 December is the last day of the school term.

11. Significantly there was nothing in any affidavit relied on by the wife for the purposes of the hearing on 20 October 2009, nor was there anything put to me in oral submissions on that day about any proposed trip overseas before the end of the school year, and nor was there indeed any suggestion that that was even in the wife’s contemplation.  Clearly though, if the position was that the wife had either already made arrangements or was seriously contemplating going overseas, then that was a matter which should have been conveyed to me, either in the wife’s affidavit or in oral submissions, in order that I could address that in the context of the application that was before me at the time, and given particularly, as I say and as I repeat, there can be no doubt that the context of the application was that if I was with the husband, the time that he would spend with the child would be before the end of the school year.

12. What I now know is that on 21 October 2009 the wife notified the husband of her intention to travel, namely the very day after the hearing on 20 October 2009.  I perhaps should add one other thing.  I reserved my judgment on 20 October 2009 and I was not able to give a precise indication as to when I would deliver judgment.  Again I do not have a transcript of the hearing but my recollection is that I indicated that I needed to deliver judgment as soon as possible given, of course, if I was with the husband, that the time before the end of the school year was rapidly drawing to a close.  As has been pointed out by both counsel, I adjourned other matters in this case generally to 25 November 2009, and I recall remarking that I wouldn’t want to leave it as late as that to deliver my judgment.

13. In any event, there is no question that I did not indicate a precise time, save and except that I would deliver my judgment as soon as I could, bearing in mind the time constraints, if I was with the husband.  Thus that was how it was left on 20 October 2009.  Yet the very next day, the wife gave the notice that I have referred to. The husband, through his solicitors then sought information about the trip, and reading from the letter, sought “a copy of your client’s travel booking and the date when such trip was booked”. Clearly, the reason for seeking that information was so there could be some understanding of what the position was in terms of this trip as at 20 October 2009, given of course that I was not informed of anything in regard to any trip that had been arranged or any trip that was proposed.  The response of the wife’s solicitors to that letter was on 27 October 2009 and this question was not addressed in the response.  The wife instead took umbrage at some of the questions asked of her, referring back to paragraphs 14 and 15 of the orders made on 5 March 2007, which set out the information that the wife needed to provide when she was proposing to travel overseas with the child. In my view though, there could be no basis for the wife not supplying the information sought. 

14. The wife’s affidavit filed yesterday, touches on these issues.  For example, she says in paragraph 5 that she was advised on 21 October 2009 by her solicitor that interim property settlement funds had cleared, and she received the funds on that day.  She says that she then emailed the notice to the husband on 21 October and on 23 October she says she attended to payment of the overseas travel from those funds. She says it was only following receipt of these funds that she was able to secure travel arrangements for the period of 13 November to 4 December.  She then produces a tax invoice statement from Flight Centre indicating that payment was made on 23 October 2009.  That is annexure “ES2” to her affidavit.  It is a statement dated 27 October 2009 which tells me that a return business airfare has been booked and that full payment is required by 23 October.  The statement gives the amount required and then says, “Less full payment received, with thanks, 23 October.”  Thus, as the wife says, that indicates that payment was made on 23 October. 

15. However what it does not tell me, and nor does paragraph 5 of the affidavit, is when the wife made the booking.  Continuing with this affidavit, there is then paragraph 7, where the wife says this:

    “I was unable to proceed with travel arrangements and book travel until such funds were available and only then could I advise the husband, my solicitor and subsequently the court.  I also could not give the husband the 21 days notice of my intention to travel until I was sure I had access to funds for travel.  21 October was the earliest opportunity I had to give notice to the husband in accordance with the husband.”

    I note that the wife does not there say in clear and precise terms, “I booked this travel on day X.”  The implication is that she did not book it until 21 October, because she says “I was unable to proceed with travel arrangements and book travel until such funds were available”. However, it would have been helpful and indeed in my view, incumbent upon the wife, to be very specific about this. What she has said is ambiguous, in my view.  It could mean that she made the travel arrangements tentatively before, but she could not finalise them until she received the money, or it could mean that she did not do anything about this trip until 21 October.  I must say though, that if the latter is correct, then I find that difficult to accept.  There surely must have been some planning involved in this trip.  In any event it is apparent that the wife has not been upfront and unambiguous in telling the husband’s solicitors or this court of precisely when she made the booking, when she made the travel arrangements and when this concept of travelling in November and into December 2009 first arose. 

16. The issue here is if there was prior planning, then it concerns me greatly that I was not informed of this proposal on 20 October 2009.  Obviously though, if it is the case that she thought of this for the first time, then made the decision, then made the travel arrangements and then booked it on 21 October, that would explain why I was not told anything on 20 October 2009.

17. The wife’s position in relation to this trip is that she is entitled to travel overseas with the child. She relies on and refers to paragraphs 14 and 15 of the order of 5 March 2007, about which there can be no issue.  In giving three weeks’ notice and the like, she says that she is complying with particularly paragraph 14 of that order.  However, that is not the point, as far as I am concerned.  The issue here is if she had planned the trip before the hearing, why I was not told of that. 

18. Proceeding on the basis though that she did all this on 21 October, for her to make those arrangements in the knowledge of the application that was before the court on 20 October 2009, the parameters of that application, the context of it, the submissions that were made on 20 October and the fact that judgment was reserved in relation to that issue - with the intention of delivering judgment as soon as possible, so that if the husband was successful then there would be orders permitting the husband to attend at the school, at the very least in November 2009 - in my view, was not open to the wife.  At the very least, she should have waited until delivery of my judgment. 

19. She chose though, for reasons which are in her affidavit, to make these arrangements at that time despite the state of the case.  She deposes in paragraph 10 of her affidavit as follows:

    “Paragraph 14 of the Orders made on 5 March 2007 permits [the child] to travel overseas with me for one (1) period not exceeding three (3) weeks in each year, and I wish to travel overseas with [the child] before the end of this year, but to return to Adelaide in early December 2009 before Christmas for [the child] to attend to his routine Christmas festivities and preparations and to spend time with our extended family. It is also I believe in [the child’s] best interests to avoid travelling when it gets much colder as there is more likelihood to snow in [Europe] in December than it is in November. I wish to minimise [the child’s] exposure to extremely cold weather.”

20. Thus the imperatives that the wife presents are that she is entitled to go, she wants to go before the end of the year and she wants to go such that she returns early December to allow the usual Christmas routine to be followed and to avoid the child’s exposure to cold weather. In the context of the history of this matter and the various attempts to have the child spend some time with his father, and which on the wife’s case she supports and supports whole-heartedly, for her to put these as the reasons why she has to go at this time concerns me greatly. 

21. Other concerns have been raised with me in submissions, for example, the independent children’s lawyer has raised a concern about the child missing such a large block of school time, and I echo that concern. 

22. The options that the wife says the husband has, allowing for the time she wants to spend overseas, are for the husband to attend the school in accordance with my order between now and 13 November and after the return on 4 December, or that it is deferred until the New Year.

23. Now, the husband lives in Hong Kong, and I return to the context of the application that I heard on 20 October 2009. To repeat, there can be no misunderstanding that November was the month when the husband was looking to attend at the school if he was permitted to do so.  For the wife to suggest that, “Oh well, it still leaves between now and 13 November and after 4 December for this to occur,” is simply outrageous.  There is only tomorrow, Friday 6 November, and four days next week – in my view insufficient time to make the appropriate arrangements. Further, one of the major bases of setting up the order in the way that I have is that I have accepted Dr C’s recommendation that neither the wife nor the child should be aware of when the husband is attending the school.  To limit the time when the husband can attend school in the way that is proposed flies in the face of that recommendation, and that was something that I took seriously into account.

24. To suggest, also, that this might occur after 4 December is, in my view a nonsense.  The school year finishes on Tuesday 8 December and 4 December is a Friday.  That means that the available days would be the 7^th, the second to last day, or the 8^th.  I accept the submission of the independent children’s lawyer in relation to the impracticability of this time being used in this way and particularly after the child would have spent three weeks away and those two days being the very last two days of school. 

25. As I understand it, the child will be going into middle school next year.  The independent children’s lawyer has put to me that deferring this arrangement to next year would be entirely counterproductive.  There will be a different scenario in place in relation to the child and his school – different class, and maybe different teachers.  He would not have the same support in class that he has now and which is vital to his education and important to the success or otherwise of the order that I have made.  Further, there was no suggestion on 20 October 2009 that this exercise should be put in place in the New Year, or deferred to the New Year, and the wife well knew that.  For that to now be put to me as an option, as a result of the wife on 21 October – putting the best gloss I can on it – determining that she would take the child overseas in November 2009 is, again, not open as far as I am concerned.

I certify that the preceding 25 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 5 November 2009.

Associate