Watts and Watts

[2011] FamCA 697

FAMILY COURT OF AUSTRALIA

WATTS & WATTS [2011] FamCA 697

FAMILY LAW – CHILDREN – permission to travel to country where DFAT has issued a travel warning – issue of passports

Family Law Act 1975 (Cth)

APPLICANT: Ms Watts

RESPONDENT: Mr Watts

FILE NUMBER: MLC 3618 of 2011

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Ms Watts

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Mr Watts

Orders

1. That the children B born … 2003 and C born … 2004 be permitted to leave the Commonwealth of Australia in the company of the wife for the period commencing on 26 August 2011 and concluding on 9 September 2011.

2. That the husband and the wife do all acts and things necessary to apply for an Australian passport to be issued in respect of the two children referred to in paragraph 1 of these orders.

3. That upon return by the wife and the children from the international travel referred to in paragraph 1 of these orders, the wife deliver the passport to the husband who shall be responsible for its retention until further order.

4. That each party seek and obtain the permission of the other party to use the passports to exit the Commonwealth of Australia in respect of future travel and in default of agreement, the issue of any outstanding travel be the subject of an application to the Court which shall not be treated as urgent.

5. That the application filed 10 June 2011 seeking interim orders and the response thereto filed by the husband on 23 June 2011 be otherwise dismissed.

6. That the reasons this day be transcribed and placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3618 of 2011

Ms Watts

Applicant

And

Mr Watts

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed on 10 June by Ms Watts, to whom I shall refer as the wife.  The respondent to the application is Mr Watts, to whom I shall refer as the husband.  He filed a response on 23 June.

2. The application is effectively about one issue, and that is whether or not B, who is now eight, and C, who is aged six, should be allowed to travel for a period of just on two weeks to Country D for a holiday with their mother.  Mr Watts opposes that application, and does so on the basis that there is a DFAT warning in respect of Country D.  He points out, I think quite properly, that that DFAT warning has been in existence since an incident in which many Australians died.

3. I have heard the evidence of both parties and heard significant numbers of submissions.  I am satisfied that on the test I should apply, which is what is the best interests of the children, it is in their best interests that they have this holiday because I do not accept that there is an unacceptable risk. 

4. I cannot guarantee that these children will not be hurt.  All I can do is assess the risk on a scale which is nothing short of crystal ball gazing.  The evidence in this case was quite disconcerting.

5. The wife’s application was brought about by the urgency of the situation because she, in fact, did not communicate properly with the husband.  Even when the application was filed, scant attention was paid to the details which, if it was thought about, most parents would have spoken to each other about.  Issues such as the nature of the transfer from airport to hotel, the security of the hotel, surrounds of the hotel, and the environment into which the children would be taken during the holiday period.

6. I do not think it could be argued in this case that either party would ever put the children in a position where they were at risk, and I describe “risk” as an unacceptable risk.  It is quite clear from reading the material that both parents love these children dearly and both have their interests at heart.  From the wife’s perspective, she sees the benefit from the children, not only travelling internationally and being exposed to a different culture, but also the excitement of the holiday in a different country.  The husband’s position is that he too would like the children to have those benefits, but he worries about the fact that they could very well be hurt, having regard to what is an ever‑present terrorist environment in the world, but particularly, according to DFAT, in the Country D area. 

7. Thus, the question really is what is in the best interests of these children having regard to the fact that there are known risks. 

8. The evidence, which I insisted be provided, shows that the travel agent has attended the hotel where the children will go for the few days and, although this is not in affidavit form, it seems consistent with the hotel or holiday brochure which shows that this is a significant hotel with accommodation described as five star.  The pictures indicate an idyllic background but that is not necessarily going to appease Mr Watts’s concerns.  The travel agent suggests that, in addition to what is set out in the brochure, there is 24-hour security as well as a 24-hour reception desk. 

9. Looking at the map provided by the wife in this application, I can see that E Town is on the northern part of the Country D coastline, well away from the F Town and South F Town areas, which are notoriously well-known as being areas of some activity and nightclubs.  The sort of activities that the children will be taken to are the sort of theme park concepts the children would most enjoy. 

10. I can only determine the matter on the basis of the evidence presented before me.  I stress again that I am satisfied Mr Watts’s concerns are legitimate and proper.  I am a little concerned that what has been happening here is that Mrs Watts has really not treated his approach seriously, and I hope that this has been a lesson for everybody that they need to communicate much better about the children. 

11. I am satisfied in the circumstances that the risk is on the lower side, bearing in mind the limitations I have already indicated, and I think, under those circumstances, the children should be permitted to go on this occasion.

12. A second issue arose as to the question of the issue of a passport.  Clearly, the children cannot go to Country D without that passport being issued.  It is a matter for the parties, and particularly the wife, to convince the department that there should be some expedition of the passport.  I do not think it is at all important, let alone a matter for the Court to decide, whether that should be expedited.  That is a matter for the parties to sort out themselves.  I think it is also important that Mr Watts have a significant role in not only the issue of the passport but its retention, and it seems to me that he should be ordered to do all things necessary to sign the passport, failing which the relevant Minister can take it that the Court approves of the issue of the passport. 

13. When the visit is over, the passport is to be returned to Mr Watts and he will retain it.  And, in future, with the agreement of both parties, each will not be permitted to exit Australia without the consent of the other.  In default of agreement, the issue of any overseas travel is to be the subject of a further application to the Court and I direct that that application not be treated as urgent.

ORDERS DELIVERED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 July 2011.

Associate: 

Date:  14 July 2011