Wing and Tennyson

[2007] FamCA 265

FAMILY COURT OF AUSTRALIA

WING & TENNYSON [2007] FamCA 265

FAMILY LAW - CHILDREN - With whom a child spends time  - Best interests of a child – Overseas holiday

APPLICANT: MR WING

RESPONDENT: MS TENNYSON

FILE NUMBER: NCF 1163 of 2004

DATE DELIVERED: 12 February 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 12 February 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. the father's application in the case filed on 12 February 2007 is refused and dismissed.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 1163  of 2004

MR WING

Applicant

And

MS TENNYSON

Respondent

REASONS FOR JUDGMENT

1. This is an application under s 11(1)(b) of the Passports Act for the parties' son, who is 16, to be permitted to travel internationally so that he can go to the Philippines with his father in April for nine days and stay at a diving resort. 

2. There are numerous advantages to the son of such a trip, some of which arise by way of general knowledge.  The first, of course, is that he would have time with his father and I think it is common ground that he enjoys his father's company.  He likes being with him.  The second is that he would spend much of the time doing diving which also seems to be an activity which he enjoys.  Another is that the trip would involve him experiencing overseas travel and meeting Filipino people and experiencing their culture and their food.  They are all advantages to the son.  And, indeed, the sort of education that one acquires from overseas travel is often very valuable in developing life skills.

3. The mother has some concerns about the trip and she opposes the son going.  She has the care of the son for most of the time.  He resides with her and spends time with his father on weekends. 

4. The first issue that she raises is what she sees as the inadequacy of the father's attitudes to the responsibilities of parenting and she sets out in her affidavit various matters in that regard.  They appear in par 2(b) of the affidavit and then on page 2 of the body of the affidavit in par 5(e).   Also on page 3 of the affidavit in the second paragraph.

5. The second matter that she raises is the father's alcohol use which she says compromises his parenting capacity.  She sets out in her affidavit material in relation to the history of the father's alcohol use during their marriage.  They have been separated for three and a half years now.

6. The third point that she raises is that she is concerned that the father would permit the son to use alcohol while he is away and she covers that issue in her evidence in pages 2 and 3 of her affidavit and also in annexures to the affidavit which relate to an incident which the father has not responded to; which is where J and his friend M, who was 15 at the time, were staying with the father.  An ambulance was called to take M to hospital.  M was suffering from abdominal pains and he had been drinking, it seems, sufficient for the medical officer at the hospital to record that the pains occurred after alcohol consumption.

7. The fourth matter the mother raises is what she sees as the son’s lack of preparation for a proposed 15 open water dives in the Philippines.  The son has had some experience of diving.  It is not long since he qualified for open dives.  When she raised this issue with the father it seemed to be acknowledged that the son does not have much experience of open water dives and that, in a sense, it would be putting him in at the deep end to go to the Philippines and suddenly do 15 open water dives without preparation. 

8. The last matter that the mother raises is a travel warning by the Department of Foreign Affairs in relation to terrorist activity in the Philippines.  That is attached to the father's affidavit.  It describes the threat of terrorist attack in the Philippines as high and makes warnings in respect of particular areas that foreigners should not go to and places they should not go to.  It reports bomb activity with terrorists in October 2006 and various other less recent terrorist activities.

9. So, those are the matters that the mother raises and relies upon in submitting that it is not in the son’s best interests for him to travel to the Philippines.

10. In relation to the first item, the question of his, what the mother alleges, are inadequate attitudes to the responsibilities of parenting, particularly a teenage boy, the father does not respond to that evidence. 

11. In relation to the evidence of the father's alcohol use compromising his parenting capacity, he does not respond to that. 

12. In relation to the submission that the father is likely to permit the son to use alcohol, he does not respond to that. 

13. In relation to the lack of preparation for 15 open water dives, the father sent an email to the dive resort and they propose to address that by having what they called “a scuba tune-up session” in the pool before the first dive.  I take it that would not mean any reduction in the number of dives.  It seems surprising that some other more serious effort could not be made before the trip if the son were to be trained up for open water diving. 

14. The fifth issue is the risk of terrorism activity.  The father does not deny that.  In fact, he attaches the terrorism warning to his affidavit.  But his response to that is that there was some other proposal that the son might go to India previously and that there were similar warnings in relation to India.  I do not think that really addresses the issue of whether it is in the son’s interest to undertake that risk. 

15. Overall, I am not satisfied that the father's proposal would be in the son’s interests and, accordingly, the father's application should be refused.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WING & TENNYSON