Alton & Dymas
[2022] FedCFamC2F 1459
Federal Circuit and Family Court of Australia
(DIVISION 2)
Alton & Dymas [2022] FedCFamC2F 1459
File number(s): PAC 3125 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – CHILDREN – Application by the father for permission to travel overseas on two occasions with the subject child who is three years of age – Competing applications as to where the child should attend preschool – whether the child should be placed on an Airport Watchlist – father’s application for overseas travel refused- orders made as to the child’s enrolment and attendance at preschool. Legislation: Family Law Act 1995 (Cth) Cases cited: Line & Line (1997) FLC 92-729 Division: Division 2 Family Law Number of paragraphs: 55 Date of hearing: 21 October 2022 Place: Parramatta Solicitor for the Applicant Ms Chase of King & York Lawyers Solicitor for the Respondent Mr O’Reilly of Counsel ORDERS
PAC 3125 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ALTON
Applicant
AND: MS DYMAS
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
28 October 2022
THE COURT ORDERS THAT:
1.In the event that the parties are unable to agree upon a preschool that X, born in 2019 (“X”) is to attend in 2023 within two months of these orders being made, both parties shall:
(a)do all acts and things to enrol X to commence at B Preschool, C Street, Suburb D on the first day that is available for X to attend in 2023; and
(b)ensure that X attends preschool on Thursday and Friday each week from 8:30am until 4:00pm.
2.The father shall pay all costs associated with the X’s enrolment and attendance at B Preschool as and when they fall due.
3.All interim applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Alton & Dymas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH:
INTRODUCTION
These are parenting proceedings with respect to the child of the relationship X who was born in 2019 and is currently three years and three months of age. (“X”).
For determination is the father’s application seeking orders as to discrete issues; namely that X be allowed to travel overseas with him on two separate occasions in 2023 to the Country E and Country F and for X to commence attending preschool in 2023.
BRIEF BACKGROUND
The father was born in 1995 and is currently 27 years of age.
The mother was born in 1996 and is currently 25 years of age.
The parties started living together in March 2015 and separated on a final basis in March 2020.
X is the only child of the relationship.
Pursuant to interim orders made by consent on 14 September 2021:-
·X lives with the mother.
·X is to spend graduated time with the father so that from 16 July 2022 X spends time with the father each alternate weekend from 9:00am Saturday until 5:00pm Sunday, each Wednesday from 9:00am until 5:00pm, for the first four (4) nights of all New South Wales school holiday periods and on ANZAC day, Christmas Day and Easter Sunday.
·X has Facetime with the father each Monday and Friday.
Trial Directions were made in the matter on 11 August 2022 and the matter is currently listed on 9 December 2022 to ascertain whether the matter is ready to be allocated final hearing dates. Discussions are currently occurring between the parties as to the possibility of an external single expert report being ordered by consent for the final hearing of the matter and thus the current trial directions and listing date may be varied.
COMPETING PROPOSALS
The Orders sought in the father’s Case Outline filed on 13 October 2022 are broadly that:-
·The father be permitted to travel overseas with X on:
·In 2023 to the Country E; and on
·In 2023 to the Country F.
·X will have make up time with the mother to compensate for the above periods.
·X will have audio-visual communication with the mother whilst she is overseas.
·That in default of the parties coming to an agreement with respect to the X’s preschool within two (2) months of these Orders, the parties shall:
·Do all acts and things to enrol X into B Preschool, located at C Street, Suburb D, NSW;
·Ensure that X attends preschool on Thursday and Friday each week from 8:30am until 4:00pm; and
·That the father shall pay all costs associated with the X’s enrolment and attendance upon B Preschool.
The Respondent mother’s Outline of Case confirms the orders sought by her in her Amended Response that:-
·Both parties be permitted to take X out of the Greater Sydney Metropolitan area for travel within the Commonwealth of Australia subject to certain conditions being met.
·Both parties be restrained by injunction from removing X from Australia unless both parties provide written consent.
·That in default of the parties coming to an agreement as to X’s preschool within two months of these Orders she shall be enrolled in a preschool with availability which is located nearest to the mother’s residence; and
·The father shall pay the mother’s costs with respect to the father’s application.
By the conclusion of submissions:-
·Both parties agree that if the relevant preschool assesses that X is developmentally ready to commence attending preschool in 2023 they consent to X so attending.
·Whilst the father’s primary position is that X attend B Preschool, his alternate position is that she attend either the G Preschool at Suburb H or Suburb J Preschool.
·The father advised the court that he is willing to pay the fees associated with any preschool X attends.
Thus the discrete issues requiring determination today are:
·whether the father should be permitted to travel with X to the Country E in 2023;
·whether the father should be permitted to travel with X to the Country F in 2023;
·what preschool X should be enrolled in and what arrangements are to be made with respect to such enrolment;
·whether orders should be made as sought by the mother “allowing” the parties to travel out of the Greater Sydney Metropolitan area with X;
·whether X should be placed on the Airport Watch List.
EVIDENCE
The father relies on the:-
·Amended Application in a Proceeding filed on 10 October 2022;
·Affidavit of Ms Alton filed 11 October 2022;
·Affidavit of Mr K filed 12 October 2022; and the
·Affidavit of Ms L filed 12 October 2022.
I have also read the Case Outline document filed by the father on 13 October 2022 and the chronology attached therein.
The Mother relied upon the following documents:-
·Amended Response to an Amended Application in a Proceeding filed 13 October 2022;
·With the court’s leave and by consent the Affidavit of the Mother sworn 20 October 2022 (unfiled); and
·Outline of Case Document (Interim Hearing) filed 13 October 2022.
THE LAW
Pursuant to s 65D(1) of the Family Law Act 1995 (Cth) (“the Act”), subject to certain sections, a court may make such parenting order as it thinks proper. In deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the child from harm or being subjected to, or exposed to, abuse, neglect or family violence.
These are short form reasons and I have only addressed the relevant considerations as presented by the parties through the evidence and presentation of their case.
DISCUSSION
Family violence
The mother’s affidavit asserts that the father occasioned family violence upon her during the course of the relationship. It also contains brief allegations that the father at some unknown time expressed to the mother that he was “having suicidal thoughts” and “was diagnosed with depression and anxiety.” It asserts that the mother witnessed at unspecified times the father “buying party drugs” and drinking alcohol “anywhere from 8-10 ciders in one drinking session, and would “drink rum, vodka or tequila in one sitting.” There is a lack of particularity as to the allegations made by the mother. The mother consented to interim orders that X spend unsupervised time with the father in September 2021. There has been no application made to vary or suspend these orders. I am therefore satisfied that the issues I am required to determine in this matter prior to it being heard on a final basis do not require me to weigh and consider any risk issues arising from allegations of family violence.
Parental responsibility
No orders have been made by the court in this matter to date as to the allocation of parental responsibility. No orders are sought by either of the parties on an interim basis as to parental responsibility. No submissions were made as to this issue. I am satisfied that it is in the best interests of the X that I make no order as to parental responsibility at this stage of the proceedings. Accordingly, each of the parents will continue to have parental responsibility for X: see s 61C of the Act.
As no order has been made as to parental responsibility I am to make such orders in my discretion that are in X’s best interests.
Pre School Issues
The father seeks orders that in the event the parties cannot agree as to a preschool X will attend within two months, then she be enrolled and attend a specific preschool in 2023. The mother herself seeks two months for the parties to agree as to a preschool for X failing which, she is to be enrolled in a preschool closest to the mother’s residence.
There is no independent evidence as to whether it is in X’s best interests to commence preschool next year. There is no independent evidence before the court as to whether, if she is ready, whether it is in X’s best interests to attend preschool for one day or two days in 2023. However, both parties have agreed that X should attend preschool in 2023 if she is assessed by the relevant preschool as being developmentally ready.
There is no evidence before the court as to how and when such developmental assessment would occur, just a submission made on behalf of the mother that it is the mother’s understanding that such an assessment takes place at the orientation day held at the preschool prior to the child’s attendance. In the absence of evidence I cannot make positive orders that X’s enrolment will be subject to a developmental assessment being undertaken as I cannot be satisfied that the preschool will undertake such an assessment.
In circumstances where it is the mother that has concerns as to X’s developmental ability to commence preschool and she is satisfied that such an assessment will occur, I am satisfied that it is in X’s best interests to proceed on the basis that X will not be accepted to commence preschool in 2023 if the preschool forms the view that she is not developmentally ready. In the absence of evidence I cannot determine whether such attendance is to be for one or two days in 2023. I must in the circumstances leave that assessment and determination to the relevant preschool X is to attend.
Turning then to the consideration of which preschool X should attend commencing in 2023.
The Father’s Proposal
The father deposes that he was hopeful that the parties would be able to agree upon a preschool for X to attend as the waitlists are lengthy and X is now three years of age. The father has made enquiries with B (“B Preschool”) preschool including attending a tour of it in June 2022. It does not appear to be in dispute that the father invited the mother to attend the information day visit but she declined. The father himself attended B Preschool as did all his siblings. He deposes that he has a good relationship with the directors and teachers. The preschool has been rated as “exceeding” the National Quality Standard for education and care services.
In evidence is a copy of letter from B Pre School at Suburb D dated 10th October 2022 confirming that X has secured a two day placement for Thursday and Friday in 2023 and for three days on a Wednesday, Thursday and Friday in 2024. The Preschool operates from 8:30 am to 4:00pm during school terms. It is a not for profit community based Preschool and as a result the state government provides funding to make 15 hours of preschool education per week free. The father is prepared to fund all costs associated with X attending this, or any other preschool that X may attend.
The father deposes that the preschool is approximately a 10 minute drive from his home and approximately 20 minutes from the mother’s home in Suburb J. The father deposes that he, the mother, the paternal grandparents, the maternal grandparents all live in the Region M where Suburb D is situated. The mother’s workplace is also in the Region M.
The mother submits that X attending B Pre School at Suburb D would require X to travel further distances than if she were to attend a preschool local to where the mother is living. It “could take nearly” 30 minutes or more to travel to this preschool from the mother’s home which the mother asserts deprives her of time with X. It appears based on this evidence that the mother is proposing that someone other than herself will be transporting X to and from preschool on the days that she is not in the father’s care although there is no evidence in this regard.
It is the mother’s evidence that she works each Wednesday and thus if X were to attend preschool on a Thursday and a Friday “I would not be spending time with X on Wednesdays, Thursdays or Fridays.” X spends each Wednesday with the father pursuant to the current interim orders made by consent in any event. The mother further works each Thursday on a two week cycle – being in week one from 9:00am to 9:00pm and in week two from 4:30pm to 9:00pm. Thus each alternate Thursday X is not in the mother’s care from 9:00am to 9:00pm and during the day in the alternate week. She alternates working on a Saturday and a Sunday in a two weekly cycle. On these days, other than Wednesdays when X is in the care of the father, she is cared for by the maternal grandmother and/ or her partner “Mr N.”
The mother submitted that X attending preschool on a Thursday is the preferable option as she attends dance lessons on a Friday. There is no evidence as to what time this lesson is scheduled, nor any evidence as to the ability to change the day or time that X so attends. There is no evidence as to whether X would be able to only attend the B Preschool one day per week and if so, what day would be available. It does not appear that the mother has made any enquiries in this regard.
The Mother’s Proposal
The mother gives very brief evidence as to other options for preschools which “ include but not limited to”:
·O Preschool at Suburb P: X has been placed on a waitlist for this preschool by the father. The father deposes that this preschool is slightly further away from the mother’s residence than B. There is no evidence X has obtained a position here. There is no evidence that the mother has attended upon or spoken to anyone at this preschool. There is no evidence before the court from the mother as to this preschool other than its alleged driving distance from the mother’s home.
·Suburb J Pre School: X has been placed on a waitlist for this preschool by the father. The mother deposes it is approximately an eight minute drive from her home. The father deposes that it is a 30 minute drive from his home and a 10 minute drive from the mother’s home. There is no evidence X has obtained a position here. There is no other evidence as to this preschool save that the father has attended and inspected this preschool and submits that this would be an alternative option in the event X is not to attend B Preschool.
·G Preschool at Suburb H: X has been placed on a waitlist for this preschool by the father. The mother deposes it is approximately an eight minute drive from her home. The father deposes it is a 24-27 minutes’ drive from his home and approximately 15 minutes from the mother’s home. There is no evidence X has obtained a position here. There is no other evidence as to this preschool save that the father has attended and inspected this preschool and submits that this would be an alternative option in the event X is not to attend B Preschool.
·Suburb Q Pre School: there is no evidence at all about this preschool from the mother. The father deposes that there are no availabilities.
·Suburb R Early Learning Centre at Suburb S: there is no evidence at all about this preschool by the mother. The father deposes that it is a day care and not a preschool.
The mother later in her affidavit further deposes that she has made enquiries of various preschools and X is on the waitlist for:
·T Preschool at Suburb R: X has not as yet obtained a position. The mother deposes it is a 12 minute drive from her home to Suburb R. There is no other evidence as to this preschool.
·U Preschool at Suburb V. The mother has placed X on a waitlist. She has not as yet obtained a position. Suburb V is “further away.” There is no other evidence as to this preschool.
The issue the mother appears to take with B Preschool is the distance from her home to this preschool. Whilst I accept that the distance from the mother’s home to each of the proposed preschools is a consideration in determining what preschool X should attend, I cannot determine what is in X’s best interests in an evidentiary vacuum. The father has given evidence as to why he proposes that X attend B Preschool. He has attended an orientation day there, he and his siblings all attended this preschool and the preschool has a position for X in 2023. On the other hand the mother’s evidence is that this preschool is further away than other preschools in her local residential area and, based on the evidence before me, asks that I determine that X attend some other preschool that as yet has no place for X in 2023 solely on the issue of travel distance.
Whilst B Preschool is further from the mother’s place of residence than other preschools listed by her, the differences in travel times are not significant. I am not satisfied that an extra 10 or 15 minutes travel time in the car is adverse to X’s interests so as to be determinative of this issue; it is simply one of the matters to be taken into account. Further it must be remembered that X may in the future be in the care of the father on the days that she attends preschool noting that the matter has not been heard on a final basis as yet.
The father has an alternative position that X attend either of two of the preschools mentioned by the mother, being the G Preschool at Suburb H and the Suburb J preschool. The father has attended these preschools. There is no current place for X at either of them at this stage.
Taking into account all of the above considerations, I am satisfied that it is in the best interests of X that specific orders be made as to the preschool she is to attend in the event. I am not satisfied the potential for further conflict to arise if alternative options were provided is in X’s best interests. I am satisfied it is in X’s best interests to make orders that are unequivocal and are made grounded upon a sufficient evidentiary basis. I am therefore satisfied that it is appropriate, as sought by both parties, to provide them with a further two months to come to an agreement as to the preschool X shall attend in 2023. In the event that such agreement cannot be reached, I am satisfied that it is in X’s best interests that she attend B Preschool as it has a place for X in 2023, exceeds the required educational standards and is not of a distance from either of the parties’ residence as to be determinative of the issue. There is insufficient evidence as to the alternatives proposed by the mother and no place available at this stage. The preschool that X attends should not be solely determined by its distance from the mother’s residence.
OVERSEAS TRAVEL
The father deposes that he wishes to take X overseas to his adoptive sister’s 30th birthday in City W, the Country E, in 2023 and to a family wedding for which X has been asked to be a flower girl in Country F in 2023. X will still be 3 years of age at the time of the proposed overseas trips.
The issue of overseas travel requires me to assess the degree of risk, if any, of X not being returned to Australia by the father and a consideration of the appropriateness of requiring any security for X’s return: see Line & Line (1997) FLC 92-729. I am required to consider: -
·The existence or otherwise of continuing ties between the departing parent and Australia;
·The existence and strength of possible motives not to return;
·The existence and strength of possible motives to remain in the other nominated country;
·Whether the country of travel is a signatory to the Hague Convention;
·And other section 60CC considerations as are relevant.
The father deposes that he was born in the Country E and moved to Australia when he was 1 month old and became an Australian citizen in 1996. His parents, three siblings, grandparents, aunties and uncles and cousins all live in Sydney. His eldest sister is Country E born to Country E parents but was adopted at birth by the father’s parents. The father deposes that his ties to the Country E are limited and he would have no job prospects there, nor is he interested in living or working there. The last time the father travelled to the Country E was with the mother in 2018. The Country E is not a signatory to the Hague Convention.
The father deposes that he has no ties to Country F at all. X has been invited to be a flower girl for the father’s paternal cousin’s wedding. The groom-to-be is Country F. The father is not aware of any of his family being Country F and he has never been to Country F. Country F is a signatory to the Hague Convention.
The father is prepared to surrender a $10,000 surety prior to each period of travel should the court consider it necessary.
After hearing the mother’s submissions and reading her affidavit where she deposes she is “now not concerned that Ms Alton may attempt to retain X overseas” it appears that the mother does not have any concerns that the father will not return X should X be allowed to travel overseas with him. This is further borne out by the mother’s submissions that her objection is to X travelling overseas at such a young age, rather than overseas at all. I am satisfied that the risk that X would not be returned to Australia by the father is low and could be sufficiently ameliorated by the father paying a surety prior to such travel.
With respect to the travel proposals overall, the father submits that there is a clear benefit to X travelling overseas and experiencing different cultures. The father will ensure he selects flights that are best suited to X. X has travelled on a plane previously and did not suffer from ear problems. The paternal grandparents are prepared to provide a written undertaking to the court that they will travel on the same flights as X and the father to assist when necessary and it is not uncommon for children to travel on flights such as those proposed. He submits that whilst it may involve lengthy travel, the benefits to X far outweigh any negative impacts. The father submits that an extension in his time for a period of four nights, together with his proposed orders for make-up time and regular audio-visual communication between the mother and X sufficiently addresses any risk the mother asserts exists.
The father submits that with respect to the proposed travel to the Country E:-
·The adopted aunt’s 30th birthday is an important family event; photographs will be taken and whilst X may not recall later what happened at this event, she will be able to engage in discussions later with family members as to it.
·There are cultural issues in X at this age being able to experience the Country E at this age as opposed to when she is older; how she is treated as a 4 year old is different as to how she will be treated as a 15 year old.
X has been offered to be a flower girl at a family wedding in Country F. The father submits the benefit of that will last a lifetime as X will be able to look back on the photographs and, whilst again having regard to her age she may not be able to independently recall this event, will have the benefit of having the photographs explained to her.
The mother asserts that the implications of the lengthy travel times proposed by the father, X’s young age, and the period of extended time that she will be away from the mother outweigh any possible cultural benefits to X travelling overseas. The mother submits that:-
·She is concerned as to the effect of the long travel times for X including the changes to her sleeping and eating patterns.
·A cultural event for a child this age has little significance.
·X has not been fully immunised and the medical facilities and issues that staying in the Country E raises causes her concern.
·The burden that such travel will place on X is not outweighed by the needs of the father’s family.
·The father’s proposal for overseas travel places X at risk of psychological harm as, on the mother’s evidence, X is currently displaying behaviours that indicate she is not coping with being apart from the mother when spending time with the father pursuant to the current arrangements.
There is dispute as to the travelling times that each of these trips would entail. The father estimates the time purely in flight to and from City W would be approximately 7-8 hours and to Country F would be approximately 21-22 hours. The mother deposes that travel via car and on planes would be approximately 13 hours to the Country E and 23 hours to Country F. Even accepting the father’s evidence at this stage; it is clear that these time estimations do not encompass the totality of the length of time X will be travelling to the Country E and to Country F such as the travel to the airport, the required waiting time at the airport prior to departure and travelling once arrived to the actual destination. It further does not include the layovers that both trips will entail – in City Y en route to City W and in Country Z en route to Country F. I am satisfied that both trips will require extensive travel time and this must be viewed in light of X’s tender age.
Both of the trips will have X spending double the length of time she has spent with the father on a single occasion since July 2022. It appears that X has spent a maximum of 4 days with the father and away from the mother since the parties’ separation. There is no evidence as to how X will cope with this significant increase in time away from the mother’s primary care in a new environment. Makeup time as offered by the father does not address the mother’s concerns as to doubling the time X will spend away from the mother whilst at the same time having to cope with overseas travel and changes in routines.
There is no evidence as to what exactly the cultural experience is that X as a three year old will experience in attending her aunt’s 30th birthday party at the Country E. They were not in the father’s evidence. It is the father’s evidence that apart from the birthday party at City W he intends to take X to swim in the local beaches and to the markets.
Weighing up the competing considerations, I am not satisfied that any positives that X may experience from overseas travel at the age of three years in the terms sought by the father outweighs the potential harm and negative aspects of such travel for X at such a tender age. The father’s application to travel overseas with X in the circumstances of her parenting arrangements to date and at her age at this stage is premature. The father’s application for overseas travel will be dismissed.
INTERSTATE TRAVEL
The mother presses for orders to be made “allowing” the parties to travel outside of the Sydney Greater metropolitan area. In support of such orders sought it was submitted that they should be made “just so that parties know they can travel interstate.” I refuse to make a parenting order allowing the parties to do things they are at liberty to do by law in any event.
AIRPORT WATCH LIST ORDERS
The mother presses for an order placing X on the airport watch list despite conceding that it is an offence of strict liability to remove the child from the jurisdiction when there are proceedings on foot. There is no evidence to support the order sought. It was submitted that the order should be made as it is a common order to be made in this jurisdiction. I am not satisfied there is any evidence to ground the exercise of discretion to make the order as sought by the mother and I refuse to make it.
For the above reasons, I make the orders as set out above.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 28 October 2022
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