Ranford V Myles [2019] FamCA 1004

Ranford v Myles [2019] FamCA 1004 is a case that dealt with an ex parte application.

It involved a nearly 17 year old child who proposed travel to the United States to participate in a scholarship selection process. This was a case where the husband had indicated he would frustrate the child’s travel out of Australia. There was no appearance for the Respondent as would be expected in an ex parte application.

One of the orders in the case was:

“The husband be and is hereby restrained from stopping, attempting to stop and/or communicating with authorities to prohibit the child X from travelling out of Australia on or about 6 December 2019.”

The reasons were given extempore.

The proposed date of travel was 6 December and the hearing came on before Bennett J on 5 December. 

The child was travelling for the express purpose to participate in “the selection process for a place in prestigious universities in the United States of America on the basis of his athletic prowess and eligibility to be a scholarship student there.”

The court marked any correspondence to the husband as an exhibit and read into the record a letter from the wife’s solicitor to the husband.  The husband did not participate in the hearing and notwithstanding that the court directed that a telephone call be placed to his phone number.

The court, however, noted that it considered that the proceedings had been dealt with on an ex parte basis.

The wife was required to enter into the usual undertaking as to damages that is part of the backdrop of an ex parte application.

The husband had been advised of the travel arrangements and responded as follows:

“Thanks Ms P for your inaccurate advice, no wonder you and [Ms Ranford] get along so well…

I will be speaking with my very good contacts at the Department of Human Services and have X stopped from clearing customs based on y concerns that I have not been informed directly by [Ms Ranford] or asked if my son has my permission to leave the country.”

The child had communicated with his father as follows:

“Dad

I am absolutely lost for words that you would want to destroy the biggest opportunity of my life, that I have worked so hard for so many years. I have got myself here, not you so how dare you take it away.

This moment will secure my future, it is completely within my best interests and what I have dreamt of for years. I will never forgive you should you action your threats.”

The court noted that an order to remove a child from Australia is a parenting order and as a result, the best interests of the child has to be regarded as the paramount consideration. The court said:

“‘Paramount consideration’ means that it is not the only consideration and that I also take into account the views of the parents and other matters.”

The wife was seeking to take only one of four children out of Australia. The wife is in occupation of real property which is described by the husband as the principal asset of the marriage. The wife has accommodation. She was found to have no motive to remain in the United States.

The court found that it was satisfied that it was in X’s best interest to be able to travel to the United States. The court had a high degree of satisfaction that the wife’s promise to return to the jurisdiction would be honoured.

The undertaking given by the wife was brought and in these terms:

“The undertaking of the wife, Ms Ranford, given personally this day to pay as directed by the Court to any person restrained or affected by the restraints imposed by the injunction granted today, or of any continuation thereof, such compensation as the Court may in its discretion determine.”

The injunction, of course, was the injunction to restrain the husband from stopping, attempting to stop or communicating with the parties to prohibit the child from travelling out of Australia.

This is an interesting short judgement and reminds us of the damages that may be claimed as a result of an injunction and the undertaking that is habitually given.