BAKKER & RALSTON

[2015] FamCA 907

FAMILY COURT OF AUSTRALIA

BAKKER & RALSTON [2015] FamCA 907

FAMILY LAW – INTERIM PROCEEDINGS – PARENTING – Where there is dispute between the parties as to which primary school the child should attend – Where the mother asserts she must relocate to facilitate the development of her career and so the child should attend a school in an area closer to where the mother says she wishes to work – Where the mother asserts the parties agreed the child should attend an Anglican school – Where the father and Independent Children’s Lawyer seek that the child attend a school in the area the mother and father currently reside – Where much of what the parties say about schooling is untested – Where the mother’s interim application leads to a significant change in the current circumstances of the child – Where in the context of an interim hearing the court is unable to determine whether it is in the child’s best interest to relocate – Order made that the child attend a school in his current local area –Where the mother seeks to take the child to Europe for a holiday – Where the father asserts the mother is a flight risk – Where the mother offers security – Where the court is not satisfied the mother is a flight risk – Orders made that the mother may travel to Europe upon the child with certain conditions including providing security

Family Law Act 1975 (Cth)

APPLICANT: Ms Bakker

RESPONDENT: Mr Ralston

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: SYC 7826 of 2011

DATE DELIVERED: 23 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Tilley Family Law

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Brevet

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The parties do all acts and things and sign all such documents as required to enrol T born … 2010 (“the child”) at MB School to commence kindergarten in 2016 subject to further order being made at a final hearing.

2. The mother be permitted to travel to Europe for the purposes of a holiday during the European summer months in 2016 for a period of three weeks upon the following conditions:

   2.1.The mother provide to the father a copy of the itinerary, name of airline, flight numbers, times and a copy of tickets for the outward and inward journey not less than twenty eight days prior to travel and should tickets not issue until shortly prior to travel, within 24 hours of tickets being issued;

   2.2.The time referred to in order 2 coincide, as far as possible, with the school holidays;

   2.3.Twenty-one days prior to any travel, the mother shall deliver to the father an unregistered mortgage in the sum of $50,000 against a piece of real estate and the father will have the ability to lodge a caveat against that real estate.

   2.4.Upon the mother’s return with the child, the father is to return the unregistered mortgage to the mother and withdraw the caveat.

   2.5.The father is only authorised to register the mortgage if the mother has failed to return to Australia seven (7) days after the due date for return.

3. During the period that the mother is in Europe pursuant to order 2, the father have telephone and/or skype and/or facetime communication each Monday, Wednesday and Friday at 9.00 am Europe time.

4. The spend time orders for the father be suspended during the period of travel referred to in order 2.

5. For any time missed by the father due to the travel referred to in order 2, the father is to have makeup time in the weekends following the child’s return, with such time to have occurred no later than six weeks after the child’s return to Australia.

6. The parties jointly consult Dr V and seek his opinion about the risk to the child of travelling away from City CP for up to four hours in summer and any risk associated with a lengthy international air flight. Liberty to restore if there is any disagreement between the parties arising from that advice.

7. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7826  of 2011

Ms Bakker

Applicant

And

Mr Ralston

Respondent

REASONS FOR JUDGMENT

1. The mother by way of an Application in a Case filed 1 September 2015 seeks an order that she be at liberty to enrol T born in 2010 (“the child”) at MA School to commence in 2016. There is currently an order that the parents have equal shared parental responsibility for the child. The father opposes the child being enrolled at the school of the mother’s choice and in the alternative, seeks that he be enrolled at MB School to commence kindergarten in 2016. The Independent Children's Lawyer supports the father’s application in that regard.

2. The mother seeks to be at liberty to travel to Europe with the child during the period 14 December 2015 to 6 January 2016. The mother in her Application in a Case also seeks consequential orders in relation to passports. Neither parent pressed any application in relation to passports and I assume that if an order is made for overseas travel, the parties will do what is necessary to organise a passport for the child.

3. The father opposes any overseas travel on the basis that he asserts the mother is a flight risk. The father also expressed particular concern about the child travelling to a cold climate, given his medical history and condition.

4. The Independent Children's Lawyer suggests that the mother be permitted to travel to Europe for the purposes of a holiday during the European summer holiday months in 2016 for a period of three weeks on the condition the mother provides appropriate information to the father about her plans, coordinates the trip so far as is possible with New South Wales school holidays, and organises electronic communication between the child and his father whilst she is away. It is also on the condition that if the child loses time with his father then there would be makeup time in the weekends following the child’s return.

SCHOOLING

1. The orders made by consent in the Appeal Division of the Family Court of Australia on 10 February 2014 provided that the parties have equal shared parental responsibility and that the child primarily lives with the mother. Relevantly, the order provides that when the child commences school in 2016, the child will spend alternate weekends during school term with the father from after school Friday to the start of school Monday.

2. There was a further order that by 1 July 2015 the mother notify the father in writing of the school that she proposed for the child to commence Kindergarten at, and that the parties were to consult Dr B for assistance with issues, including issues around schooling.

3. It is not a matter of dispute between the parties that the mother, as the child’s primary carer, will have the responsibility of getting the child to and from school nine out of ten times in a fortnight. The mother submits that accordingly her preference should be given weight.

4. The mother asserts that she is unable to afford to continue to live in the home at Suburb MB and asserts that she needs to leave that home. The evidence in that regard is relatively thin. The mother did not rely in these interim proceedings on any financial statement. The evidence I have in respect of her financial circumstances is set out [26] through to [36] of her affidavit. The mother has two properties, one at Little Bay and one in Suburb MB. I am unaware of what equity she has in each of these properties. She gives evidence that if she moves out of Suburb MB and rents it out then the anticipated rent would cover her current mortgage commitment in respect of Suburb MB. She says she intends to make that move in late 2015 so as not to disrupt the child’s enrolment at child care.

5. The mother gives evidence that the Suburb MA area to which she wishes to relocate would allow her and her current partner (who is not living full time with her at the current moment) to buy a two storey modern house with a back yard for a expenditure of $2,500 to $3,000 per month. The mother asserts that “to rent a house in Sydney, I would pay between $1,300 and $1,500 a week for a suitable house, which is difficult for me to afford”. This is an untested and very general assertion and I place little weight upon it.

6. The mother next says that she wishes to live in the Suburb MA Region because she desires to pursue her career options at WG Town University. She asserts that it is not feasible for her to continue to live in the Suburb MB home and commute between Suburb MB and WG Town.

7. The mother is currently an associate professor at the Z University. The mother expresses the opinion that it is unlikely that she would be promoted to a full professor at the University of New South Wales. She has turned down approaches for tenured professorships at universities in the United Kingdom and in Canberra. The mother has indicated that she has developed a plan to pursue a professorship at WG Town University and says she is planning to spend most or all of 2016 – 2017 at WG Town.

8. The evidence about that plan was the subject of critical analysis by counsel for the father. The mother has received an offer from the University of WG Town to be a visiting senior fellow during 2016.

9. The mother’s application to undertake a special studies program (“SSP”) is contained in Exhibit 1. That application by the mother proposed the SSP would commence on 1 January 2016 and end on 30 June 2016. The mother in that application indicated that she would continue to act as a lecturer in charge of a particular course at Z University during the proposed SSP. She says that that would ensure that the course at Z University would continue to run smoothly and that she would remain in charge of assessments and course planning and oversee the general running and coordination of the course during the semester. She would continue to supervise a PhD student and a MPhil student whilst being a visiting professor at WG Town University. The mother describes to her current university the research project that she will be involved in at WG Town. The mother will operate the research project in collaboration with an academic at her current university and a professor at ANU. The project also involves collaboration with departments in South Australia and the Australian Capital Territory and with academics both interstate and overseas. The project is expected to take six months and will require the mother to travel to Adelaide, WG Town and Melbourne. The mother signed an undertaking that at the conclusion of the SSP she would “resume full normal duties” at the Z University or in default repay salary and allowances.

10. The mother points to the fact that she has 65 days of long service leave that she can take at the end of the six month period to continue her involvement with WG Town University.

11. The evidence before me is untested and the mother has not had an opportunity to elaborate on the information that she has given in her written evidence. That unfortunately is the nature of interim proceedings. Based on the evidence I have however, I am not able to find that the mother has a settled arrangement which would mean that she would be full time at WG Town University, Monday to Friday for the whole of 2016 and onwards into 2017.

12. In terms of her need to attend WG Town University, her current evidence is that she does not attend the campus of the University of New South Wales on two days a week and works from home. I am unaware as to why the mother would not be able to continue to operate in such a manner. On occasions when the mother will need to either travel to WG Town, Melbourne or Adelaide, the mother has given evidence that since 2013 her father has been a member of her household and has been involved in all the daily routines of the child’s life including assisting with the child’s transportation. The mother says that her father is a tremendous help to her and to the child in their daily lives. He no doubt would be involved if the mother was required to travel.

13. The father raises in his affidavit the range of activities that the child is enrolled in, which he participates in within the south eastern suburbs, and the friends he has in the area. The mother indicated through her lawyer that the child would be brought to south eastern suburbs of Sydney on weekends that the child was with her so that he could continue to participate in those activities and have contact with those friends. That is, the mother’s proposal would be that the child’s weekend extra-curricular activities would take place in the south eastern suburbs.

14. The lawyer for the mother asserted that this was not an interim relocation case because the Suburb MA Region is on the outskirts of Sydney. I do not accept that as being a realistic submission. What the mother proposes on its face leads to a significant change in the current circumstances of the child and the father’s ability to be part of ordinary day to day routines. It might be that at a final hearing in relation to the mother being able to move to the Suburb MA Region, a court would find on tested evidence that it was in the best interests of the child to allow the child to move. I am not however able to make that determination in the context of untested evidence on an interim basis.

15. The father lives in rented premises in the eastern suburbs of Sydney. He is employed on the central coast and it seems agreed that he commutes extensively. The mother asserts the father could relocate his premises to better facilitate his work commute and be in a closer proximity to the Suburb MA Region. The mother points to the fact that the father’s employment on the central coast already gets in the way of him being able to be regularly and meaningfully involved in the child’s weekly routines. An order for mid-week time does not seem to have been effectively implemented.

16. The mother also asserts that when the parties were together they had agreed that the child receive a private school education. The father responds by saying there are appropriate schools in the Suburb MB Region that the parties could explore.

17. Each party has given evidence as to the practical difficulties associated with travelling between the Suburb MA Region and the eastern suburbs. It is the mother’s contention that the practical difficulties are not such that would require a variation of existing parenting orders and neither party seeks a variation of the orders. However on the father’s evidence he would not be able to work on the central coast on Fridays and effectively be able to pick the child up at the conclusion of school on a Friday afternoon if the child went to school at Suburb MA Anglican School. A similar difficulty would present itself on Monday mornings on the return journey. It is difficult to understand how a change in the current orders would not be inevitable if the child commenced school at Suburb MA Anglican School.

18. As I have said, much of what each of the parties have said on the topic of schooling is untested and in the context of the mother proposing a significant moving away from the child’s current residence.

19. I am not on an interim basis able to make the order sought by the mother.

20. Accordingly, the father’s proposal which is supported by the Independent Children's Lawyer is the proposal that I am left with and I will make that order accordingly. A final decision in respect to the child’s schooling awaits future agreement by the parties or a determination at a final hearing.

OVERSEAS TRAVEL

1. The father alleges the mother is a flight risk and the mother denies that she is.

2. The mother is an Australian citizen and has lived in Sydney since January 2002. She has a tenured position at Z University, owns two properties in Sydney, and has Australian superannuation. Her father migrated from Europe in 2013. She has a stable relationship with her partner Mr LM who is also an Australian citizen.

3. Apart from her father, all of the mother’s extended family is in Europe.

4. The mother says that one of the purposes of her trip is to allow the child to see his 89 year old great-grandmother who has a terminal illness, before she passes away. I have no evidence from the mother at all as to what her grandmother’s life expectancy might be. Her affidavit was filed at the beginning of August 2015 and she proposed not to go overseas until December 2015.

5. Europe is a Hague Convention country.

6. The mother is of European ancestry. The child has a right to experience and enjoy his European ancestry and is now of an age where he would benefit from that experience and benefit from meeting members of his European family.

7. The father’s concerns about the mother being a flight risk arise out of what he claims were the mother’s express desires at a previous time to work in City CP. The mother says at [22] of her affidavit that she has an offer for a Professorship at City CP business school but there is no indication that she wished to take up that offer. Rather her evidence is she wishes to pursue opportunities in Australia.

8. The mother offers by way of security, a charge against real estate to a sum of $50,000.

9. In all the circumstances, it is not my view that the mother is a flight risk and international travel should be allowed.

10. The mother wants to allow the child to experience a European white Christmas.

11. The father has concerns in respect of the child’s health and in particular exposing the child to a northern winter. In previous proceedings the mother objected to the father taking the child to the snow fields in Australia because of the child’s medical condition. The mother filed an affidavit from Dr V. That affidavit indicates that the child suffers severe croup which is life-threatening. Hospital records indicate that the child has had at least four serious events requiring hospitalisation between 2012 and 2014. In a letter written by Dr V to the parents on 27 July 2015, there is an indication that the child was on antibiotics in April 2015. There is apparently a disagreement as to the severity of the child’s illness at that time.

12. In January 2015 Dr V indicated that the life threatening condition occurs in children until the age of 7 years old and that measures must be taken to manage the risk. The doctor concluded in relation to the father’s proposal to take the child to the snow:

    Although I believe it would be a wonderful experience for [the child] and [the father] to go to the ski fields or cooler climates, I recommend they wait until [the child] is over 7 years old. Any drop in temperature in these cooler climates would pose an unacceptable risk of croup given his previous history of severe croup.

13. The doctor goes on to say an added problem is the availability of a tertiary hospital given that the closest would be Canberra Hospital which was two to three hours away from the snow fields and  he doubted whether HH Town Hospital would be properly equipped to handle a possible life threatening emergency involving the child’s condition.

14. The mother asks me to infer that she is a vigilant and competent manager of the child’s medical problems. I am prepared to accept that is so. However, I am mindful of the fact that on six (and possibly seven) of the episodes of croup, the child needed to be hospitalised on four occasions and I infer was not able to be safely treated at home on medication.

1. The mother’s overseas travel plans are not just to City CP (where I would infer there is the availability of a tertiary hospital) but also to places that are up to four hours out of City CP.

2. I conclude that it is not appropriate at the child’s current age to allow international travel to the northern hemisphere winter.

3. I accept the Independent Children's Lawyer’s suggestion is a reasonable compromise and I permit the mother to take the child overseas in the middle of 2016 on the conditions suggested by the Independent Children's Lawyer and one other condition. That condition is that the parties jointly consult Dr V and seek his opinion about the risk to the child of travelling away from City CP for up to four hours in summer and any risk associated with a lengthy international air flight.

4. The order made is conditional upon the doctor not expressing the opinion that the flight poses an unacceptable risk and the mother travelling away from City CP is conditional on the doctor expressing an opinion that it is not an unacceptable risk for her to do so. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 23 October 2015

Associate: 

Date:  23.10.2015