Tinh and Vieng

[2010] FamCA 627

FAMILY COURT OF AUSTRALIA

TINH & VIENG [2010] FamCA 627

FAMILY LAW – CHILDREN – International travel

APPLICANT: Ms Tinh

RESPONDENT: Mr Vieng

FILE NUMBER: SYC 8329 of 2007

DATE DELIVERED: 14 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 14 July 2010

REPRESENTATION

THE APPLICANT: Ms Tinh in person

THE RESPONDENT: Mr Vieng in person

Orders

1. That the child A (male) born … September 2001 be permitted to travel outside the Commonwealth of Australia with the mother for the period 24 September 2011 to 12 October 2011.

2. That the Court requests that the Australian Federal Police remove the name of the child A (male) born … September 2001 from the Airport Watch List at all points of international arrivals and departures in Australia ONLY for the period set out in Order 1 of the Orders made this day and the said child’s name to be placed on the Airport Watch List at the conclusion of the said period.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 8329 of 2007

MS TINH

Applicant

And

MR VIENG

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, the wife has applied to be permitted to take the parties’ son - who is now aged 8 – to Canada and the United States for a little less than a month in September and October 2011.

2. The husband opposes the trip for three reasons, or four.  He says she may not return, because in the past she has wanted to take the son to live in Vietnam.  He further says that to take the child away for the period that the mother wants will mean that he will miss at least two weeks or three weeks of school and that should not happen.  The third reason that he says why the mother should not be permitted to take the child overseas is that if something goes wrong it will be difficult for him to go overseas himself to collect the child.  And finally, he says there is no reason why, if the mother wants to take the child – whose name, by the way, is A – on holidays, that she should not take him on holidays in Australia because Australia is a very big and interesting place and he would equally enjoy a holiday in Australia.

3. The wife wants to take the child overseas to visit her sister and brother-in-law who live in Canada, and the plan is, on doing that, her sister and brother-in-law, who have no children, will travel with the mother and the child together to Disneyland before the mother and child return to Australia.

4. The mother has produced evidence which satisfies me that she is in stable employment.  She is in fact practicing a profession, as is the husband.  She has had one job since June 2008.  In April this year she purchased, for about $307,000, a home at B, where she now lives with the child.  She has a mortgage over that home of $215,000 so her equity in the home is probably about $100,000.  She has already had holidays from 24 September to 25 October 2011 approved by her employer and the child has attended the same school where he appears well, settled and happy since January 2006. There do not seem to be any problems with the child. Finally, the mother has offered to provide a $10,000 bond to secure the costs of any efforts to the husband to have the child return to Australia in the event that the wife fails to bring him back. 

5. However, there is something that appeals very strongly to me as showing the bona fides of the wife.  It is that she has made her application extremely early.  It seems to me contrary to what might be expected of a person who did not intend to return, to make an application to go on a holiday more than one year in advance.  It seems to me that this provides an indication that she is genuine in her wish to have a holiday.

6. Although she has a mother living in Vietnam, there is no suggestion that she wishes to go to Vietnam, and one would wonder why she would have bought a house in April of this year if she had continuing intentions to live with the child in Vietnam.  And I am satisfied on balance that she intends to continue to live in Australia, so a bond appears to be unnecessary to secure her return.

7. I can see no reason why it would not benefit the child to have this holiday.  It is a truism, although it may be trite to say, that travel broadens the mind, even of a boy of 10.  In fact, especially of a boy of 10.  In my view, although the child may miss about two weeks of school, at his age this is not critical and when compared with the value to him of the experience of a trip to Canada and America, it seems to me that he will not be disadvantaged by missing those two weeks.

8. I think that it is in the child’s best interest to be able to go on this trip to Canada and America.  The fact that it is for a month, in my mind, it makes it particularly valuable because the child will not only see something of two other societies, he will be there long enough to allow himself to have a better understanding of those societies, and therefore a better understanding of the world around him and of Australia.  One cannot understand life in Australia without comparing it with other places.  It will benefit the child to be able to understand Australia better as a result of this holiday, and I can see no reason – because I have no fear that the mother will not return – to prevent him from being taken overseas.

9. So I shall make an order permitting the child to travel overseas with his mother, commencing at the date the mother seeks to leave – that is, on 24 September 2011 – and ending on the date the mother intends to return, which is 12 October 2011.  And I shall order that, for the purposes of the Watch List he not be prevented from leaving during that period.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              23 July 2010