Overseas Travel for 1 month with Father during School term allowed

Children aged approximately 9 yrs old and 7 years old. 

Previous Parenting Orders had been made on a final basis, however they did not contain any provision about International Travel, being silent on the issue.

Various Orders made including:

• Father to pay for Passports to be issued for the Children;
• The Children be permitted to travel overseas for a just over a month during the School term with the Father.

Interim Order only. Matter continues.  

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Dawkins & Shore [2017] FCCA 1363 (23 June 2017)

Last Updated: 4 July 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the children X born on (omitted) 2008 and Y born on (omitted) 2010 are permitted to travel internationally in the period from (omitted) 2017 to (omitted) 2017, inclusive.
(2) That the parties forthwith do all acts and things necessary to apply for and be issued with an Australian passport for each of X born on (omitted) 2008 and Y born on (omitted) 2010.
(3) That the cost of the children’s passports pursuant to order (2) above shall be borne by the father.
(4) That the proceedings are transferred to the Sydney Registry of the Federal Circuit Court of Australia to be listed on a date to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Dawkins & Shore is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

SYC 7399 of 2014

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 7 September 2015, Judge Scarlett made final parenting orders regarding the children the subject of these proceedings, X born (omitted) 2008 and Y born (omitted) 2010, with the consent of the parties and at their invitation. Those orders are silent on the issue of international travel.
2. On 5 May 2017 the Applicant father, Mr Dawkins, commenced these proceedings by way of Initiating Application filed 5 May 2017 seeking, inter alia, an order permitting him to travel to (country omitted) with the children from (omitted) 2017 to (omitted) 2017. The Initiating Application also seeks a number of parenting orders on a final basis.
3. The Respondent mother filed a Response, on 14 June 2017, objecting to that travel and seeking a number of other orders^[1], both on an interim and on a final basis.
4. The Initiating Application was first returnable before the Court on 15 June 2017. On that day the Court heard the father’s application for travel to (country omitted) with the children and the mother’s application for the proceedings to be transferred to the Sydney Registry of the Federal Circuit Court. For reasons which are set out below, the Court finds that orders permitting the proposed travel and transferring the matter are appropriate.
5. The balance of the mother’s interim application, if pressed, remains to be dealt with in accordance with the usual practices of the Judge to whom the matter is ultimately docketed after the transfer. The Rice & Asplund^[2] threshold issues have not been the subject of any submissions nor judicial determination at this stage.

Travel to (country omitted)

6. On 6 December 2016, the father wrote to the mother asking for her consent to take the children to (country omitted) for a holiday in (omitted) 2017 for four weeks.
7. In an email dated 12 December 2016 the mother responded:

Orders were agreed on after almost a year of proceedings in September 2015. Your lawyer and barrister were present and you signed the orders. Having 4 alternate days and then gradually increasing this period as of November 2017 was done for important reasons relating to what is best for the children. Seven alternate days period begins in November 2018. There is no agreement about having 4-weeks away nor out of Australia. I do not agree with you taking the children out of Australia for any period. This may be something to reconsider in a few years when the children are much older.

1. 8. The father was not deterred. He wrote to the mother again on 23 December 2016, through his solicitors on 31 January 2017, 20 February 2017 and 3 April 2017 seeking her consent, indicating his view that such consent is being unreasonably withheld and attaching proposed itineraries. Knowing that the mother did not consent to the travel, the father nonetheless purchased return airplane tickets to (country omitted) for himself and the children on or about 23 March 2017. There were some attempts at mediation in the interim. However, it was not until 5 May 2017, only two months prior to the proposed travel dates, that the father filed his application.
   9. The mother’s position is that she does not consider the travel to be in the children’s best interest, that she will not consent to the travel, and indeed that she is opposed the children travelling with the father during the proposed period.
   10. The Court understands how the mother might find the father’s actions in pressing the application after the purchase of tickets and in the face of the mother’s opposition upsetting. The Court also understands how the father might find the mother’s refusal to consent to the proposed travel upsetting. If this is the manner in which the parties communicate with each other and deal with important parental decisions, it is little wonder that solutions are hard to come by between them.
   11. Both parties filed cumbersome and lengthy Affidavits in support of their respective positions. However when invited by the Court to do so, they each only relied on particular parts of their respective Affidavits. Notwithstanding, much of the material read was not relevant to the questions which the Court had to determine; namely whether the proposed travel was in the children’s best interest and whether the proceedings should be transferred to the Sydney Registry of this Court.
   12. In respect of the father’s proposed holiday to (country omitted) with the children, the mother says as follows:
       I thought about this holiday, particularly weighing up the benefits of overseas travel, with how I thought the children would cope. I felt that the children would struggle.

…

My reasons for not agreeing to the proposed holiday this year are:

a. … the children have a difficult time transitioning between our two households.

b. The children have never spent more than 5 days away from me. Mr Dawkins has never cared for the children for such a long time.

c. Y is only 6 years old and X is 8 years old.

d. The children are both having trouble at school. The proposed holiday means the children will miss more than two weeks of school.

e. The children both have issues with asthma and Mr Dawkins and I do not yet agree on the best practice for managing the children’s asthma.

f. X has been experiencing significant anxiety. This anxiety has meant she has missed lots of school this year and is seeing a therapist. I would like X to be feeling better before agreeing to overseas travel.

g. From around March 2017. Y has been unsettled and upset when he return home from spending time with Mr Dawkins. I am worried he would not cope with the proposed trip.

In the future, I think that overseas travel would be a positive experience for the children. Both children have (nationality omitted) heritage, and although their extended family all live in Australia, it would be very interesting and exciting for them to visit (country omitted). I would also like to travel with the children in the future.

1. 13. There was no evidence in the father’s case as to why the particular period of the proposed travel was important and indeed if there was any special event that the father was intending to take the children to. Submissions were made about how the children’s best interests would be served by exposing them to their (nationality omitted) heritage and culture and by facilitating for the children the opportunity to spend time with their paternal extended family in (country omitted). The father states:I have made the present application with the children’s best interests in mind and my wish to continue to develop a meaningful relationship with my children.
   14. Indeed the mother in her Affidavit sees a positive side to international travel and as submitted on behalf of the mother, she proposes for the children to travel with each of their parents internationally when they are a little bit older starting from October 2018; so that they can experience both the mother’s (nationality omitted) culture and the father’s (nationality omitted) culture through such travel.
   15. The mother, in her evidence describes the children as follows:X is eight years old. She is in year 3 at (omitted) school. She is intelligent and does extremely well academically. X has struggled with the transition from (omitted) education to mainstream education and does not enjoy her current school… X has been reading chapter books since she was five years old and writes stories and poems with ease… X is talented in music …She plays the (omitted) and has perfect pitch… [she] plays with the (omitted) which she joined at the beginning of Term 1, 2017. Y is six years old. He is in year 1 at (omitted) school. Y also struggled transitioning to mainstream school. Y is emphatic and affectionate … [he] does well academically at school. He is creative and has an amazing ability with special reasoning and perceptual speed. He is tenacious and persistent, when he finds something new to learn, he spends days on it until he masters it to proficiency. An example of this is he solved the Rubik’s cube. X and Y are very close.

…

X has attended two counsellors since 2016. From July until November 2016 she saw, Dr S, clinical psychologist… Since late February 2017, she sees Ms C, clinical psychologist…

Determination

16. The Court has carefully considered the mother’s concerns and objections in relation to the travel, as well as the father’s reasons and submissions as to why such travel is appropriate.
17. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
18. In determining what is in the children’s best interests, the Court must consider the matters set out in s60CC.Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
19. The relevant legal principles^[3] in relation to travel have been identified in a number of authorities which set out matters which the Court might in the exercise of its discretion take into consideration in the context of the best interest principles. Those relevant matters which the Court may take into consideration have been identified as:
    1. the length of the proposed stay out of the jurisdiction;
    2. the bona fides of the application;
    100. the effect on the child of any deprivation of spending time with the other parent;
    4. any threats to the welfare of the child by the circumstances of the proposed environment; and
    5. the degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
20. There are other authorities^[4] which deal with the factors to consider in evaluating the risk of non-return by a party who seeks to take children travelling outside the jurisdiction. Such risk was not raised in the mother’s case.
21. The decision of course as to whether or not to make the orders proposed by the father is an exercise of the Courts discretion.
22. There was no suggestion that the father’s application for international travel with the children was anything but bona fide^[5].
23. The issue of the father remaining with the children in (country omitted) was not something that was raised by the mother as being either probable or possible. (country omitted) in any event, is a Hague Convention^[6] country.
24. The father proposes a trip for just over a period of one month from date of departure to date of return. The proposed travel dates are (omitted) 2017 to (omitted) 2017.
25. The New South Wales Government school term dates are matters which are in the public domain. In 2017, Term 2 concludes on Friday, 30 June 2017, and Term 3 commences on Monday, 17 July 2017. The proposed holiday by the father means that the children, who are both of school age, would miss out on approximately three weeks of Term 3.
26. It was submitted on behalf of the mother that because the children are struggling at school any period away from school, particularly for the period which the father proposes, would have a detrimental effect on their learning.
27. There is no evidence in the mother’s case from any expert or from the children’s school as to whether the proposed period away from school would have a detrimental effect on the children’s learning.
28. The Court notes that the children are still fairly young, namely eight and six years old respectively, and that they have a long school life ahead of them. They have recently transitioned from a different learning environment of the (omitted) school to the local public school. While they may be struggling with transitioning to mainstream school^[7], both children have been at their current school since 2016. They are both said to be doing well academically and appear to be particularly intelligent children. The issue of the children’s schooling appears to be an ongoing live issue between the parties.
29. It is likely that a trip away to (country omitted) will provide the children with different learning opportunities, including the chance to learn firsthand about the (nationality omitted) culture and history, the food, the people, and the language. It would give them the ability to immerse themselves in a different environment, experience different people, and importantly have the opportunity of spending some period of time alone with their father.
30. The Court sees many benefits to the proposed travel, including wonderful learning opportunities to those lucky enough to be able to travel internationally. No doubt the children would also benefit in due course from travelling with the mother to (country omitted), the other half of the children’s heritage.
31. The mother submits to the Court that the children suffer anxiety and are so distressed at changeover that their current behaviour and mental health is contra indicative of the proposed travel with the father.
32. There is no expert evidence^[8] about any anxieties which the children might suffer from, or with which they have been diagnosed. The Court accepts that X has been seeing a psychologist, but as to the treatment which she is receiving and on what basis, there is no expert evidence.
33. While the submissions made on behalf of the mother in relation to the children’s anxieties do at first blush have some force, it is the parties’ poor co-parenting relationship and their inability to effectively communicate about important decisions regarding the children that may well be the cause of any anxieties which the children may or may not be suffering from. It appears on both parties’ evidence that changeover is at times difficult and that the parties are not on particularly good terms. The fact that the parties are having this dispute is also a matter which no doubt the children are at least implicitly aware of, even though it appears that neither party has spoken to the children about the proposed holiday.
34. It is possible that the reasons why the children may be experiencing the difficulties which they are said to be experiencing with transitioning between houses is because of the frequent changeovers, the said conflict between the parents and perhaps even that they are only spending such limited time with the father. These are all matters which may ultimately be the subject of judicial determination and appropriate findings.
35. Given the hard fought interlocutory application, there is no doubt that whichever way the Court decided this matter one of the parents would in all probability feel like a “winner” and the other like a “loser”. The only winners and losers in this family law litigation are the children, given the inability of their parents to resolve this issue without the need for Court intervention.
36. While the children are away on holidays with their father, there will be no transitioning between houses. This will at least take some of the conflict out of the situation.
37. Certainly, while the parties were together, the children were cared for by both parents and since separation at least, the children have spent more time living with the mother than with the father.
38. However, there is nothing to suggest that the father is anything but a capable parent who will be able to look after the children for the proposed period of travel, including looking after their health and welfare.
39. The effect on the children of being away from the mother, with whom they live, is a relevant matter for the Court in all of the circumstances of this case. The Court has heard and considered the mother’s submissions about the effect on the children in being away from her for a month that it would be detrimental and not in their best interest.
40. While a month may seem like a long time and while they will no doubt miss their mother, in these modern times of video conferencing, the internet, text messaging and video messaging, there will be many and frequent opportunities for the children to keep in touch with their mother and to update her about what it is that they have been doing while overseas.
41. It was submitted on behalf of the mother that when the children are a little bit older they will be able to cope with being away from her (their primary carer) for longer periods of time. As of the date of the interim hearing the children have only ever been away from their mother for no longer than four days at a time.
42. The difficulty with this submission is that there is no expert evidence (or indeed any lay opinion evidence which the Court could place any weight on) which would support the contention that in (the proposed^[9]) 16 months’ time the situation in relation to the children’s stated or alleged anxieties and difficulties in being separated from their mother would be any different than to what they are said to be at present.
43. Given that final orders were made by consent in September 2015, the parties cannot shy away from the position that at the time of the making of those orders, they each submitted to the Court that the orders as proposed by them were in the children’s best interest. It is true that the orders are silent in respect of international travel. The evidence in the father’s case notes the mother’s views as to why the orders were drafted in that particular manner.
44. The fact remains that the orders are silent on the issue. Nothing can be drawn from that except that the statutory position then prevails^[10].
45. In all of the circumstances, the Court finds that the children’s best interests are served by permitting the father to travel to (country omitted) with the children during the proposed period.

Transfer

46. In considering an application to have the proceedings heard in another registry, the Court must have regard to^[11]:
    1. The convenience of the parties; and
    2. The limiting of expense and the cost of the proceedings; and
    100. Whether the matter has been listed for final hearing; and
    4. Any other relevant matter.
47. Both parties and the children live closer to the Sydney Registry of the Federal Circuit Court than to the Parramatta Registry. The mother submits, and the Court accepts, that it is significantly more convenient for her (and the children) for the proceedings to be heard in the Sydney Registry. It is only the father’s legal representative who is in close physical proximity to the Parramatta Registry.
48. It is very early days in this round of family law proceedings. It is only limited interim issues which have to date been dealt with. A final hearing, if there is to be one, is some time away.
49. The father does not object to the transfer.
50. An order transferring the matter to the Sydney Registry of this Court is therefore appropriate.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 23 June 2017

^[1] Parenting and procedural
^[2][1978] FamCA 84; (1979) FLC 90-725
^[3]Kuebler & Kuebler [1978] FamCA 26; (1978) FLC 90-434 and also see Thomason & Malhotra [2010] FamCAFC 85 at [50]
^[4] See for example Line & Line (1997) FLC 92-729
^[5] Despite the manner in which the application was brought as noted in paragraphs 9 and 10 above
^[6]Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October1980
^[7] A matter which is not the subject of any finding
^[8] The only evidence which might very loosely fall into such a category is hearsay evidence contained in a letter to the parents from X’s treating psychologist annexed to the mother’s Affidavit
^[9] The mother’s Response proposes international travel for the children from October 2018
^[10] See section 65Y
^[11] Rule 8.01 Federal Circuit Court Rules 2001

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.  

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.