Azzarudin and Kulat

[2017] FamCA 1105

FAMILY COURT OF AUSTRALIA

AZZARUDIN & KULAT [2017] FamCA 1105

FAMILY LAW – CHILDREN – Parenting Orders – Where the applicant mother seeks to vary previous final consent orders made in 2012 – Where the 2012 consent orders provided for the child to live with the mother in Australia until December 2017, upon which time the child would relocate to Country C to live with the father – Where the 2012 final consent order is varied – Where it is ordered that the child remain living in Australia and spend time with the father during holidays and when the father is in Australia – Where there is dispute between the parties as to which school the child should attend – Where an order is made for the child to attend D School.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Bennett & Bennett (1991) FLC 92-191
Doherty & Doherty [2016] FamCAFC 182

Goode & Goode (2006) FLC 93-286

Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Rice v Asplund (1979) FLC 90-725

SCVG & KLD Error! Hyperlink reference not valid.

SPS and PLS (2008) FLC 93-363

APPLICANT: Ms Azzarudin

RESPONDENT: Mr Kulat

FILE NUMBER: BRC 1132 of 2012

DATE DELIVERED: 22 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 21 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horsley

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Firth

SOLICITOR FOR THE RESPONDENT: Steven Watkinson

orders

1. That paragraphs 7, 8, 9, 10, 11 and 13 of the parenting order made on 1 May 2012 be discharged.

2. That B born on … 2006 (“the child”) live with the mother and spend time with the father at all such times as may be agreed between the parties and failing agreement as follows:

   (a)       From 25 December 2017 until 22 January 2018 with the child to accompany the father to Country C on 25 December 2018 and return as an unaccompanied minor at the cost of the father;

   (b)       For the Easter gazetted school holidays in each year in Country C with the child to travel as an unaccompanied minor at the cost of the mother;

   (c)       For the June/July gazetted school holidays in each alternate year in Country C commencing in 2018 with the child to travel as an accompanied minor at the cost of the father;

   (d)       For six weeks in or around September in each year inclusive of the gazetted September school holiday period, in Australia;

   (e)       For four weeks during the gazetted summer school holiday period each year to occur in Country C with the child to fly as an unaccompanied minor or accompanied by the mother (with the child’s travel to be at the cost of the father);

   (f)       From Friday after school to Monday before school whilst the father is present in Australia at other times upon the giving of one week’s notice to the mother.

3. That changeover in Australia occur at the child’s school if he is at school but otherwise at the mother’s residence.

4. That each of the mother and the father have telephone/Skype communication with the child at all such times that are suitable to the child’s routine and the child shall be at liberty to communicate with either parent at all such times as the child expresses a wish to do so and the parent with whom the child is then spending time shall facilitate that communication and afford the child privacy during that communication.

5. That, subject to any contrary agreement between the parties, the child attend D School for his secondary schooling and for this purpose the parties do all acts and things and sign all documents necessary to ensure the child can commence at that school in 2018.

6. That the child’s passports be held by the mother, save for occasions when he is travelling to and from Country C or to other places with the father as may be agreed from time to time.

7. That all extant applications be dismissed.  

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Azzarudin & Kulat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1132  of 2012

Ms Azzarudin

Applicant

And

Mr Kulat

Respondent

REASONS FOR JUDGMENT

1. This is an application to vary a final parenting order made by consent on 1 May 2012 (“the 2012 order”).

2. The proceedings concern B born in Country C in 2006. He is the son of the applicant (“the mother”) and the respondent (“the father”).

3. The parties agreed in 2012 that the child would live in Australia with his mother until shortly before his 12^th birthday whereupon he would return to Country C to complete his secondary schooling and live with his father and spend time with the mother as often as agreed depending upon where the mother was living.

4. The mother applies for an order varying the 2012 order that would see the child remain in Australia with her and complete his secondary schooling here. The father opposes the variation to the 2012 order sought by the mother but in turn seeks a variation to the 2012 order to provide for the child to attend E School in Country C.

background

1. The mother and father were married in 2003 and separated in 2011. They divorced in 2012. B is their only child together.

2. The mother was born in Country C and is 48 years of age. She is employed as a manager and has lived in Australia with the child since 2010.

3. The father was born in Country C and is 51 years of age. He is a professional and has very flexible working arrangements. The father has remarried and he and his wife have a 2 year old child together. They live in Country C.

4. By all accounts the child is an intelligent and mature child for his age. He has excelled at school and was school captain and dux of his school this year. He has many friends and interests in Australia. In addition to being high achieving academically he has achieved at a number of sports including cricket and he is an excellent chess player and a talented musician.

5. As envisaged by the 2012 order, the parties attended mediation on a number of occasions commencing in 2015 because they were unable to agree about a number of parenting issues including it seems what secondary school the child would attend and when. In 2015 they agreed that the father would provide information to the mother about whether or not the child would be required to return to Country C prior to December 2017 if he were to start grade seven in that country.

6. Throughout 2016 and 2017 the parties engaged in discussions about the child attending secondary school in Australia despite the 2012 order. They considered a number of schools and the father was very much involved in considering various alternatives for the child in Australia even taking him to sit the selective entry examination for D School in September 2016.

7. The father supported the child sitting the scholarship exams for the F School and G School in February 2017. The father also took the child to some activities at D School in February and March 2017 and the parties jointly attended a tour of the school in March 2017.

8. On 21 April 2017 the father suggested to the mother that she provide a video of the child to G School to increase his chances of being accepted at that school.

9. Ultimately, the child was not successful in obtaining a scholarship at either of the private schools but he has nevertheless been accepted at both D School and G School.

10. The fees at G School are about $25,000 per year. The costs of attending D School are about $3,000 per year.

11. Two of the child’s closest friends will be attending D School.

12. The mother earns $55,000 per annum and contends that she cannot afford to contribute to a private school education but she owns land in Country C which she says is valued at $100,000. The mother also owns three flats in Country C with her mother and sister each occupying a flat and the other being available for the mother on visits to Country C.

proposals of each party

1. The mother seeks a discharge of paragraphs 7, 8, 9, 10 and 13 of the 2012 order to be replaced with the orders sought in her amended initiating application filed 30 October 2017 as amended by leave in terms of exhibit 1. If the child is required to relocate to Country C the mother will join him. She proposes that he attend H School in that event.

2. The father effectively seeks enforcement of the 2012 order save for an additional order that the child attend E School in Country C. A notation to the 2012 order refers to the parties’ agreement that the preferred school for the child in Country C was J School but neither party press for that school and agree that E School is a very similar school. If the child remains in Australia, the father proposes that he attend G School and that the fees be shared equally. If the mother is not ordered to pay one half of the fees, the father proposes that the child attend D School. If the child returns to live in Country C the father proposes that the mother spend alternate weekends with the child from Friday until Tuesday and half holidays.

the ‘rule’ in Rice & Asplund[1]

[1] (1979) FLC 90-725

1. While a parenting order is never final in the true sense of that word, as the provisions of Part VII of the Act themselves make clear and in particular s65D(2), there are restrictions placed on a party wishing to vary substantive parenting orders. The Court will need to be satisfied that there is a change of circumstances sufficient to warrant a re-consideration of the order or that some matter of sufficient gravity was not disclosed at the first trial.

2. There has been some discussion over the years about whether the principles espoused in Rice & Asplund are properly called a ‘guiding principle’ or ‘binding rule’.[2] However it might properly be described, it is fair to say that the ‘rule’ has been universally applied for well over thirty-five years.

   [2] Poisat & Poisat(2014) FLC 93-597 for a recent discussion

3. Whether it is applied at a preliminary stage or after a full hearing the best interests of the child remains paramount and the Court is not relieved of its obligation to consider the relevant legislative provisions set out in Part VII.[3]  The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer[4] although its significance is likely to be greater when applied at a preliminary stage.[5] An application of the rule is directed to the substantive order and does not prevent all variation to the primary order.[6] When applied after a full hearing two particular public policy matters remain of some significance, firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[7]

   [3] Miller & Harrington(2008) FLC 93-383

   [4] Bennett & Bennett (1991) FLC 92-191

   [5] SPS and PLS (2008) FLC 93-363

   [6] SPS and PLS (2008) FLC 93-363; Doherty & Doherty [2016] FamCAFC 182

   [7] SPS and PLS (2008) FLC 93-363

how parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[8]

   [8] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[9]

   [9] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

8. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

9. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

10. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

11. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

12. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[10]

    [10] Banks & Banks (2015) FLC 93-637

the child’s relationship with parents and other significant persons

1. The child has a close and loving relationship with each parent and with his step-mother and half-brother, K despite the child living in Australia and his father living in Country C. I have no doubt that whether he remains in Australia or returns to live in Country C he will be able to maintain a meaningful relationship with all of those persons and it is in his interests to do so.

Abuse, neglect or family violence

1. Despite the mother raising an issue about family violence in the form of a mutual physical altercation on one occasion many years ago and her feeling controlled by the father during her marriage it was not suggested to be a factor that should impact on the decisions currently before the court. In short there is no suggestion that the child will be at risk in either parent’s care and both support an ongoing significant relationship with the other parent.

child’s views

1. The child has told each parent that he agrees with their respective proposals. The mother describes the circumstances in which the child has said that he wants to go to school in Australia at D School and the father describes the circumstances in which the child said he wants to go to school in Country C at E School. I have no reason to doubt that what they report is an accurate account of what the child said at the time. Each parent’s evidence as to the child’s reasons for stating those wishes seem entirely plausible. Each parent contends that a significant reason for them pursuing their respective proposals is due to the child’s expressed wishes to each of them but as acknowledged by the father, the child may say what he thinks each parent wants to hear.  

2. It was important, therefore, and sensible for the parties to obtain a family report. Ms L, social worker, prepared a family report after conducting interviews and observations involving the parties, the father’s wife, Ms M, and their son, K on 21 November and 5 December 2017. The interview with the child occurred when he attended with his father, step-mother and brother. The child was interviewed for about one hour. He made it clear that he loved both parents and clearly stated that his attitude about his future care arrangements and his education was not related to “favouritism” towards one parent or the other.

3. Ms L reports that the child told her that his father wanted him to go to secondary school in Country C in 2018 but that he prefers to stay in Brisbane. He said that he thought his father might have a different attitude if he had been accepted into G School on a scholarship and that G School would be another good option for him because the academics are very good and they also have an excellent sporting program.

4. the child told Ms L that E School would be “very different” for him and that while the school looks very nice from the outside the classrooms and toilets are not of a very good standard. He did not think there was much in the way of technology at the school and that he did not think the students used laptops to the same extent that he did at his primary school. He thought E School’s sporting program was very good and that the cricket coaching was possibly even better than at D School. He said that he loves sport and plays cricket and golf. The child thought the standard of education at H School was better than at E School but not as good as D School. He thought the standard of sport at H School was “terrible”.  The child said he always thought he would be going to D School and he thought both of his parents had agreed on this. The child said he was “definite” that he wanted to go to D School. One of the reasons he said he was not keen on going to E School was because he does not speak much Country C and some of the classes are in Country C. The main reason he would rather go to D School is because he does not want to move again and he said “I’d have to start over”. The child talked about his friends in Australia and that some of them are going to D School. He thought moving back to Country C would be “a huge thing” and would mean “going into a new world” and he described feeling unsure about that.

1. The child said that he might go back to Country C after he finishes university and live there as most of his family are still in Country C. The child acknowledged that there would some good reasons to move back now such as seeing more of his brother but he favoured increasing his holiday time there rather than moving there permanently.

2. If he were required to move back to Country C the child suggested living with each parent for two weeks and alternating although this did not seem to be a strong preference. He thought a week about arrangement might be annoying. He rejected the concept of living mainly with his father.

3. The child said that a better option to attending E School and only seeing his mother every two weeks was to stay in Australia and spend ten weeks each year in Country C.

4. If the court decided he should return to Country C the child said that he would feel “a bit disappointed and I wouldn’t be satisfied.”

5. Ms L recommended that careful consideration be given to the child’s views “because he is an intelligent young person, who is almost 12 years of age, and whose social and emotional maturity is impressive.” It is Ms L’s view that the child understands the options and opted for a familiar, secure and settled environment over venturing into a new environment.

6. Ms L could not detect any overt influence by the mother on the child’s expressed views but acknowledged that it would not be surprising for him to be influenced to some degree by his mother’s attitudes given that he knew her preference was that he remain in Australia and she has been his primary carer for most of his life.

the likely effect of any changes in the child’s circumstances

1. If the child remains in Australia there will be no change in his circumstances other than of course commencing high school and all that entails. He will continue with a familiar, stable and secure life with which he is comfortable.

2. A move to Country C will involve him abandoning a life he has known and apparently enjoyed for the last seven years. He has excelled at school and sport and has many friends, some of whom will be attending high school with him.

3. If the child moves to Country C it will involve significant change for him but he is a boy of some resilience and emotional maturity so it seems likely that in time he would adjust and I am confident that his parents and other significant adults would do all they can to assist in his transition. Attendance at either E School or H School appear to be appropriate secondary schools and day to day travel to either would not be a problem.

4. As the mother would accompany him to Country C the child will not be separated from her and he will have the benefit of spending more time with his father, brother, step-mother and many other family members.

practical difficulty and expense in spending time with and communicating with a parent

1. The parents have managed to ensure that the child spends regular time and communicates regularly with the father for the past seven years. He has a close and loving relationship with him. There is no suggestion that such an arrangement would not be able to continue into the future if the child remained in Australia.

2. If the child relocates to Country C the mother has made it clear she would also relocate.

background and cultural issues

1. Whether the child lives in Australia or in Country C he will be exposed to and will maintain his connection to cultural aspects of his heritage including language, custom and traditions. Obviously the child would have greater exposure to the Country C community and extended family if he relocated to Country C and he would become proficient in his parent’s cultural language which he currently understands to some extent.

discussion

1. The child is fortunate to have two capable and loving parents who have been able to agree about his parenting arrangements up until now. He is by all accounts an intelligent, talented and resilient child who has excelled in all areas of his life to date.

2. The parents agreed seven years ago that at the end of 2017 the child would return to live in Country C and live with his father. It is submitted on the father’s behalf that there has not been a change of circumstances sufficient to justify variation of the 2012 order.

3. It is fair to surmise that at the time the agreement was reached the parties must have considered that their circumstances were likely to change, as they have, and that the child would become settled in Australia, as he has, although the mother suggests that her agreement was a means to an end, namely, obtaining agreement to live in Australia with the child, as she and the father had originally planned in 2010.

4. The 2012 order made provision for the mother’s time with the child to be ‘as agreed’ and it is apparent that the parties do not agree about what time the mother would spend with the child if he is living in Country C with the father. The inability to reach agreement is a change in circumstances which would require a determination.

5. The application of the Rice & Asplund ‘rule’ is being applied in circumstances after a full hearing has occurred. The public policy reasons for applying the rule in such a situation viz to guard against one judicial officer simply substituting her or his view for that of the original judge and secondly, to have a rule that can be relied upon to discourage endless litigation do not apply in this case. The child’s best interests must remain paramount.  

6. Since the 2012 order was made the child has become settled in Australia. His life is here. His friends are here. His interests are here. He wants to remain here and attend D School with a number of his friends.

7. On the mother’s proposal the child will continue the life he has known and enjoyed for the last seven years. He will also maintain a meaningful relationship with his father, brother and step-mother and other family members.

8. On the father’s proposal the child will be required to do something that he opposes. He has had the benefit of visiting E School in Country C and he acknowledged to Ms L that it is a good school (although he had some objections) and he acknowledged that his father made some good points about why he should return to Country C.

9. Each parent has indicated that they place some importance on the child’s expressed wishes although the father now seeks to rationalise the child’s views, as expressed to Ms L, saying that he is merely taking the easy option to stay with what he knows.

10. I consider it to be of some significance that the child attended the interviews with Ms L while in his father’s care and her assessment that the child was not influenced to any great extent by his mother’s preference. Ms L spent about an hour with the child. Ms L is a very experienced social worker and I am satisfied that her interview with the child has elicited his genuinely held views. I also accept her assessment of the child as a mature boy for his years and I note that her assessment accords with the views of his parents. The child understood the options and the consequences of each parent’s proposal.

11. The parents will continue to make decisions about major long term issues jointly as they have up until now and I consider that to be in the child’s best interests. Each party seeks a continuation of the equal share parental responsibility order.

12. The child suggested that if he lived in Country C he could spend equal time with each parent alternating fortnightly and that is supported by the mother after an initial year of nine nights with her and five nights with the father in each two week period. The father supports equal time for a year but only so as to transition the child to living primarily with him.

13. The child has lived primarily with his mother since 2010 and Ms L is of the view that he should continue to live primarily with the mother although she suggests that he spend nine days with the mother and five days with the father in each fortnight period if the child moves to Country C and then there be a review before there is any further change. Neither party has suggested an interim order, and of course an equal time or a nine/five arrangement would only be practicable if the child and his parents were living in Country C.

14. I am not satisfied that equal time would be in the child’s best interests but I do consider that significant and substantial time would be in his best interests. 

15. However, if the child lives in Australia it will not be reasonably practicable for there to be substantial and significant time of a kind envisaged by Ms L.  

conclusion

1. This is a finely balanced case. I am confident that whatever decision is made the child will be supported by each parent and will maintain a meaningful relationship with each parent.

2. On balance though I am persuaded that the child should remain in Australia. Each parent has deferred, to some extent at least, to the child’s wishes and he has made those plain to Ms L but his views are only one of the factors which ultimately cause me to find in favour of the mother’s proposal. The child is settled here and has achieved a level of excellence both academically and in his extra-curricular activities. Relocation to Country C would involve many significant changes to the child’s currently settled and established life e.g. becoming fluent in a new language, adjusting to living in two new homes, leaving his long term friendships etc. The child presented to Ms L as somewhat anxious about relocating. He has a close and loving relationship with his father and sibling and step-mother and I find that those relationships will continue to be meaningful if he remains in Australia.

3. the child wishes to attend D School but would be prepared to attend G School. The fees at that school are considerable and the mother contends that she cannot afford to pay one half of the fees and the father does not agree to pay all the fees. The mother’s income is not significant although she is not working full time. She also owns some property in Country C. I agree with Ms L’s observations that the cost of a private school education in Australia is likely to cause financial stress to the parents given the additional costs associated with frequent travel. I do not consider it unreasonable for the mother to limit her working hours in circumstances where she is the primary carer for the child and wishes to be as involved as much as possible with his schooling and other activities. While she has property in Country C she stays there when she visits and I do not consider it reasonable to require her to deplete her capital to pay for private school fees.

4. Accordingly, the child will remain living with his mother in Australia and spend time with his father during holidays and when the father is in Australia. He will attend D School.  

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 December 2017.

Associate:

Date:  22.12.2017