The recent case of Dart v Graham [2008] FamCA 824 dealt with the issue of a father seeking permission to take his children on an overseas holiday to Bali, Indonesia for his wedding. The mother of the children opposed the children travelling to Bali due to advice issued by the Department of Foreign Affairs and Trade (DFAT) warning travellers to Indonesia that the country has risks associated with it and that careful consideration should be given to the need and desirability of such travel. The question subsequently arose of whether the attendance of the children at the wedding was of a degree or potential risk to the children such as to outweigh the benefit of such attendance?
The facts of the case included:
- In February 2008, Mr Dart, the father, emailed his ex-wife, Ms Graham, to request that their three children be able to attend a family celebration in Bali, Indonesia in September/October 2008;
- In March 2008, Ms Graham’s solicitor responded via letter that Ms Graham did not consent to the children travelling to Indonesia;
- During May and June 2008, the US Embassy and DFAT, respectively, issued advice to travellers to exercise caution in Indonesia;
- On 28 August 2008, Mr Dart filed the application to seek permission for his children to travel to Indonesia during September/October 2008.
Due to the lack of consent from the mother permitting her children to travel to Bali, it was left to court to determine whether, upon a proper consideration of the evidence and the provisions of the Family Law Act 1975, and balancing the risks and benefits associated, the children should be permitted to travel to Bali for their father’s wedding.
In reaching its conclusion, the court placed emphasis on the right of children to have a “meaningful relationship” with each of their parents. The judge concluded that it was “very important” that the children attend their father’s wedding, as a meaningful relationship “grows out of the participation of the father in the children’s lives and the children in their father’s life” The judge went on to say that a “failure to attend might well be seen as an exclusion from the father’s new life and a diminishment of the importance of the children to him in favour of new relationships”.
The judge also noted that the mother had conceded that there was love and affection between the father and children and that she did not object to the children attending their father’s wedding per se, but rather objected to her children (on grounds of their safety) travelling to Bali for the wedding.
After determining that the best interests of the children would be served by their attendance at their father’s wedding, the question for the judge then became one of whether the benefit of attending was outweighed by the potential risk that would be faced by the children by travelling to Bali.
The judge concluded, after considering the particular circumstances of the case, that the risk did not outweigh the benefit. The judge took into consideration the fact that there was no intention to visit places which were subject to civil unrest and/or where there was a likelihood of any protest or demonstration occurring. Also, he noted the fact that the father had “managed the family’s security in Jakarta through troubled times successfully” when the family had lived in Indonesia previously and that the father intended “to exercise a high level of vigilance and personal security awareness at all times in respect of himself and his children and his family”.
The father was subsequently given permission to take his children to Bali, Indonesia. In the event that DFAT upgraded their travel warnings regarding travel to Indonesia, each parent had liberty to apply on 24 hours notice to the Court and the other party for variation of the court orders.