Once you’ve separated from your partner, the issue of overseas travel with children can become fraught with difficulties. The Family Court recently looked at this issue and took into account the conduct of the mother and father in the initial hearing, on appeal and for all the years that the case had been before the Court.

Background

The mother and father married in 1998 and separated in 2010. Their only child, a daughter, was 14 at the time of the hearing. The mother was Chinese, with all of her family living in China.

On many occasions, the mother had asked for the father’s consent to take their daughter to China. The father had refused each time.

The mother applied to the Family Court for an order that would allow her to take the daughter to China on a holiday.

Family Court’s first decision

The judge who heard the application made the order for a 3 week holiday because:

• The daughter had never met her grandparents who lived in China. They were unable to travel to Australia because of their poor health.
• Although the daughter could speak Mandarin and had cultural and family ties to China, she’d never been there.
• The daughter would cope without seeing her father for 3 weeks.
• The grandparents were paying for the airfares.

Appeal

The father appealed the decision, saying that:

• He was concerned that the mother would not return to Australia as she had no job, few possessions and no financial ties to Australia.
• The mother had substantial assets in China.
• If the mother decided to stay in China, there was no agreement between Australia and China that would allow him to retrieve the daughter from China.
• The airfares may have been one-way and not return.

The father had not filed his application to appeal within the required time, so the Court also had to consider whether there were good enough reasons to allow his application anyway. The father said that he couldn’t file the application until he had received some paperwork from the mother and because he needed to find some financial statements that would support his application.

The Court’s decision

The Court said that the paperwork that the father had claimed to have caused the delay was not relevant to the appeal.

The Court also found that:

• The documents did not show that the mother had any intention to permanently move to China.
• The mother had given a copy of the return airfares to the father.
• The mother had promised to keep the daughter in regular contact with the father whilst away.
• The mother had provided contact details to the father of the places and people with whom they would stay.

The judge in the first hearing said that because he had seen the parties many times over the years, he had been able to decide that the mother was trustworthy. He also found that:

• The mother had travelled alone to China many times since separation and had always returned.
• The father did not financially support the child in any way, except to pay school fees. The mother had fought to keep the child in her school since separation, valued the quality of the education and wanted her to complete her schooling there.
• The mother was happy living in Australia.

The appeal court decided that if it granted an extension of time so that the father’s application could proceed to a proper hearing, the mother would suffer significant prejudice, having already planned and paid for the trip. A hearing of the matter would probably take place at the same time as the trip, meaning that they would be unable to travel. The mother had also complied with every Court order so the Court refused the father’s application.

The lessons

This case has some important lessons.

As soon as a legal issue arises, it’s important to get legal assistance without delay. In this case, the father’s late application cost him the ability to have a proper hearing.

Also, the conduct of the parties can become relevant at any time. Here, the first judge looked at the mother’s behaviour over the years to decide her trustworthiness. The parties’ previous battle over school fees became relevant when trying to work out the mother’s motives for the trip. Such conduct can make a huge difference in how the Court will determine issues.

Websters Lawyers have a team of specialist family lawyers in Adelaide, Ridgehaven and Smithfield who have extensive experience in parenting issues. If you have a parenting issue or a more general family law issue, the sooner you seek legal advice, the better off you’ll be. Contact us now for a free first interview.

Montrose & Montrose [2016] FamCAFC 92 (6 June 2016)