Busch and O’Shea - [2013] FamCA 461

FAMILY COURT OF AUSTRALIA

BUSCH & O’SHEA

[2013] FamCA 461

FAMILY LAW – CHILDREN – Best interests of a child – Whether a child should be permitted to travel overseas to spend time with their father in Scotland – Where the period of proposed travel was for 18 days – Where the Court formed the view that it was unlikely that the father would not return to Australia with the child

Family Law Act 1975 (Cth)

Cases considered:
B and B; Re Family Law Reform Act 1995 (1997) FLC 92-755
Kuebler & Kuebler (1978) FLC 90-434
Thomason & Malhotra [2010] FamCAFC 85

APPLICANT:

Mr Busch

RESPONDENT:

Ms O’Shea

FILE NUMBER:

SYC

3942

2008

DATE DELIVERED:

17 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

12 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morris

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Ginny Giorgio & Associates

Orders

The requirement of a section 691 Certificate is dispensed with.
The child of the parties R born … September 2005 (“the child”) is to spend time with the father in Scotland from 28 June 2013 to

15 July 2013.
The father is to provide to the mother a copy of the following documents within seven days from the date of these Orders, namely:
(a)a confirmed and paid Itinerary for the child and the father providing the following information:
(i)departure dates and times from Sydney for the child and the father
(ii)the arrival times and dates for Scotland for the child and the father
(iii)the departure times and dates from Scotland to Sydney for the child and the father
(b)the telephone and other contact details for the child and the father during the period of travel and the details of accommodation including contact numbers of premises at which the child and the father will be staying during any stopover and whilst overseas.
Whilst the child is in the father’s care as set out in Order (2) hereof the father will at all times accompany the child, and during the times spent by the child overseas the father shall personally supervise the child.
The father is to ensure that the child will be available for telephone contact with the mother on the father’s mobile telephone at all reasonable times during the holiday (excepting during air travel).
The father is to be responsible for all associated travel costs for the child and will cause the child to be collected from and delivered to the mother’s place of residence at the commencement of the child’s time with him and at the conclusion of such time respectively.
The mother is to provide to the father the child’s current passport at the time the father collects the child at the commencement of the holiday period during which the child will travel overseas and the father shall return such passport to the mother upon returning the child to the mother at the conclusion of the overseas holiday period when the child is returned to the mother.

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

FILE NUMBER: SYC 3942 of 2008

Mr Busch

Applicant

And

Ms O’Shea

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are interim proceedings in which the father seeks that one of his two children, namely R (“the child”), spend time with him on an overseas holiday in Scotland for a period of 18 days. Whilst other issues were adumbrated by the parties it is their agreement that this is the only issue requiring the Court’s attention this day.
The father proposes that during such holiday he will personally supervise and care for the child at all relevant times and will accompany the child from Australia to Scotland and on the return of the child from Scotland to Australia.
The mother opposes the making of the orders at this time and seeks, before consideration is given to the father’s application, a report from an expert into various matters related to the likely effect of such a holiday on inter alia the child.
The mother’s application for adjournment was refused by the Court. The mother had known of the father’s proposal for some time and no application was made to the Court for an adjournment in a timely way. The matter proceeded to an interim hearing in which the mother opposed the orders sought by the father.
The task for the Court is to determine whether, on a consideration of the facts of this matter presented on the usual interim basis by affidavit and untested, the interests of this child would be served by the child spending time with the father as requested by him.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The applicant father was born in 1965 and is professionally employed in Glasgow, Scotland. The father has work commitments from time to time on a short-term basis in Australia and visits Australia for the purpose of fulfilling those commitments. He is aged 47 years.
The mother was born in 1972 and is professionally employed in Sydney. She is aged 40 years.
The parties commenced cohabitation on their marriage in January 1996.
There are two children of the marriage, namely: B born in August 2003 and R born in September 2005.
The parties separated on 24 April 2007 and were divorced in August 2009.
The parties sought and procured consent orders as to parenting on 15 October 2009 and those orders are sought to be augmented or varied by the father’s present application. In an application also listed before the Court, the mother seeks a significant variation of those orders inter alia by reason of the father’s residence overseas.
The father presently resides in Glasgow, Scotland with his partner

Ms A and their two children: C born in June 2010 and D born in December 2012.
The child B suffers from Autism Spectrum Disorder and severe Developmental Delay. She has presently an assessed developmental age of 19.5 months and requires assistance with all tasks. She has, it seems, no spoken language.

The Evidence

Each of the mother and the father filed principal affidavits and, in addition, the mother relied on the affidavits of each of her mother and father.
The affidavits traversed a lot of history but much of that history was in fact agreed. It seems that the father has spent time with the children since separation. The mother sought to minimise that involvement but it appears that the father has been engaged with his children regularly until his acceptance of his present position in Glasgow. He took up that position in February 2013.
It is true, no doubt, that he might have been able to engage with them more than he did, however it is not in the Court’s view a case where there is no established relationship between the father and the subject child who he has seen not only on a daytime basis but also for block periods of time. His most recent time with the children was in May of this year on a visit to Australia for that purpose. That said, however, the father keeps in touch with the children by Skype on a weekly basis. The calls, the father deposes, last usually for an hour.
The mother opposes the current proposal of the father on the basis that it will potentially create a separation anxiety in the child being separated both from her and her sibling.
It seems the question of the child’ s separation from her sister B was not a matter which engaged the mother’s decision making in arranging to travel alone with R to Disneyland in the United States from 7 to 15 January 2012. The mother apparently agreed that the father might take R to Singapore in the September/October holidays in 2011, however the trip did not eventuate since the mother could not take time off work to care for B. The mother, in her affidavit at paragraph 48, says that she accepts that R needs respite from B and the challenging home environment from time to time.
The proposed trip will take place during a school holiday period and as such will not interfere with the child’s schooling.
Counsel for the mother submits that the child is too young to be taken overseas. It is, however, the case that the father has specifically proposed and undertaken to the Court that he will supervise the child at all times. The mother has had the confidence to place the child in the father’s care before.
The trip overseas will ensure that the child maintains contact with her

half-siblings.
The trip will also afford the child the opportunity of having, in a relaxed holiday environment, time with her father for a block period. Although it was put that the father would be visiting Australia from time to time, it is submitted by him that such visits are for the purpose of fulfilling his commitments to work and, given his other commitments, they do not afford him the opportunity of having continuous time with his children as would the proposed time overseas.
The mother says that the child has been at times distressed. The aetiology of that distress is uncertain but the Court notes that the email communication between the parties in these proceedings is indicative of a level of hubris and anxiety on the part of the mother. In these circumstances, the child could well be reflecting the mother’s attitude to the father.

The mother says that in this case, the child will be out of her comfort zone in an unknown house. Change is a constant feature of life and is part of the experience of growing up. The child here will have the constant of her father and his partner who, it appears, fulfils the stepmother role without complaint from the mother.
It is submitted by the mother that the proposed trip to Scotland will be arduous. It will undoubtedly be longer than her trip to the United States with the child but given that it is the father’s intention to make Scotland his home for the next five years, and perhaps longer, some early acclimatisation to the travel will enable the child to adjust and the father to determine whether some alteration to the arrangements he makes are required to accommodate the child’s needs.
Counsel for the mother points to the impact on the child of being in a “foreign land”. Scotland is not a country with understood threats to the health and welfare of the child. She may find the accented English a bit different but the language will not be as “foreign” as some she might hear in Australia.
The mother earlier expressed some concern that the father might seek to retain the child in Scotland and for this reason the father offered an amount by way of security for his return. The Court has formed a view that such a surety is not required and, to give the mother her due when asked, she conceded through her counsel that it was not likely that the father, who is it seems at the top of his field, might not return with the child. It is also noted that the father is also employed in Australia and is obliged to travel here from time to time for work-related engagements. The Court notes that the Hague Convention applies in Scotland and does not propose in any event to order any such security.
The Court’s attention was drawn to the case of Kuebler & Kuebler (1978)

FLC 90-434 (“Kuebler”) and it notes that the following matters are considered:
a)The length of stay outside the jurisdiction
The period of proposed travel is 18 days which is not a long time bearing in mind the more limited nature of the opportunities presenting themselves for the father to have continuous time with the child.
b)Was the application brought bona fides?
The Court finds that the application was brought bona fides. There was an issue raised by the mother that on some basis or another it was a ploy to reduce the father’s obligation to pay Child Support.
The Court does not find that there is any acceptable evidence to support this assertion and, in any event, the mother has her rights under the Child Support legislation if the amount of an assessment is insufficient for a child’s needs in the particular circumstances and a case can be made out for a departure order. The trip was the subject of a request which was conveyed to the mother in the early part of this year.
c)The effect of the deprivation of access
This is also a matter which the Court is obliged to consider. This child needs, in the Court’s view, to maintain her relationship with her father so that he can fulfil his responsibility to support the child in attaining her maximum potential. It is in her interest that that relationship be maintained, for that among other reasons. There is no evidence on which the Court can come to a conclusion that the child does not have a happy relationship with the father. There is, in the Court’s view, no evidence on which it could come to the view that he was incapable of caring for the child. The child needs to develop and maintain contact and a relationship with her half-siblings and her extended family in Scotland. They are also part of the father’s life and of him. The child should know and experience the father in his setting. The child will have the continuation of contact with her mother as set out in the Court’s orders and the time away will be of short duration in any event. The trip should be a pleasant, new experience for this young girl who has already enjoyed overseas travel. There is no evidence of any threat to the welfare of the child in the environment. She will be with her father and under his supervision.
d)The likelihood of the child being returned
The Court has already considered this and it now seems by common accord that that is not a problem. The Court, in any event, takes the view that the father’s promise to return the child will be honoured.
Whilst the case of Kuebler is a 1978 case, it has received Full Court approval in a number of cases subsequently (see for example B and B; Re Family Law Reform Act 1995 (1997) FLC 92-755; and Thomason & Malhotra [2010] FamCAFC 85); but, of course, it was a case which was decided before significant amendments to the Act. Those amendments would require the Court to consider, in addition and in an overarching way, the principles governing this case which are set out in the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, the Court must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
The Court is required to ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
The Court will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
The Court is required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are the Court states that it will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, 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 for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires the Court to consider the child spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.
The proposal of the mother is, in due course, to seek change to the arrangements for the discharge of parental responsibility but that is not a matter for this day. Accordingly, the provisions of the prior order as to parenting arrangements and their effect continues in this regard to apply.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

It is axiomatic that this child has a meaningful relationship with each of her parents unless there is a likelihood of harm occurring to the child thereby. The Court sees this case as one in which such a relationship should be encouraged so that the child may obtain the benefit of the support of each of her parents in her development.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Court finds that there is no unacceptable risk imposed on this child by reason of the orders which it proposes to make. Nor does the Court find that there is any likelihood on the evidence of the child being exposed to physical or psychological harm or being subjected to or exposed to abuse neglect or family violence. There is no evidence on which such a conclusion could reasonably be drawn.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child has expressed some views but, given her age and the underlying anxiety of the mother, it is not in the Court’s view a matter in which any such view should be given decisive weight.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The mother says of the father’s relationship with the children:
Both [B] and [R] benefit from their relationship with their father but the father has not been able to spend quality time with the girls because of the responsibilities associated with his high profile and demanding work.
The order sought by the father, albeit for a short period, will assist him to spend quality time with R away from the responsibilities referred to.
The relationship, on the evidence, of the child with each of the child’s parents and grandparents is not a contraindicator of the desirability of her being able to spend the time proposed with her father in Scotland and indeed the relationship of the child to her half-siblings and their mother is a benefit which will flow to her from the trip.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There is no evidence that there is a lack of such willingness on the part of the father. The mother, indeed, also proposes continuing and future contact between the children and their father but proposes that it take place quite a considerable time away which the Court, in its decision, finds not to be warranted by the evidence. The mother says in her affidavit, “[B] and [R] love their father and I am sure he loves them but I am not sure that the father fully understands the children’s needs.”

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

This matter has been canvassed above. Given that the trip is but of short duration and will involve continuing contact between the child and her mother, it is unlikely that there will be any deleterious effect on the child by reason of her separation from the mother and her maternal extended family. The child will gain the benefit of the time spent with the father and his family.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

No such difficulty or expense exists in relation to the issues before the Court.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The Court finds that each of the parents by their conduct in making the arrangements thus far made for the care of the children have acknowledged that the other and their extended families are capable of providing for the needs of this child, including her emotional and intellectual needs.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is seven and is young.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This does not apply.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Whilst there have been discussions between the parties, sometimes with a measure it seems of hubris on a number of matters, it does not seem that the responsibilities of parenthood have eluded either of them. Financial assistance has been provided and there has been some argument as to whether it was sufficient but there is no evidence which suggests that the father’s present obligations at law are not fulfilled. There is disagreement between the parties as to the extent of the father’s contributions to the special needs of the child B. No doubt, if the parties cannot agree, it is a matter which can be determined by appropriate applications for departure.
(j)any family violence involving the child or a member of the child’s family
There is no evidence before the Court of such violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no evidence of such an order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings.
(m)any other fact or circumstance that the court thinks is relevant
It is noted by the Court that the relationship between the mother and the father’s partner appears to be reasonably communicative and cooperative.
It is noted that the communication between the parents is presently fraught. However, pending litigation never brings out the best in people and it is the Court’s hope that in due course the undoubted intelligence of the parties will cause them to be able to so control themselves as to enable them at least to engage in polite business-like communication at the least.
It is noted that the father has procured a commodious residence for his family in Scotland and the Court accepts that the accommodation provided is adequate.

Section 60CC(4) & (4A)

The Court has already touched on a number of matters which fall for consideration under this heading and it will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons, the Court concludes that the orders it proposes will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case, given it is a limited application for interim relief and not here encompassing a consideration of parental responsibility, no order will be made and the position presently existing will for the time being continue.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility. It is not in these interim proceedings the Court’s intention to make any such order.

The Orders to be made

The Court therefore proposes to make the orders in relation to parenting as set forth above.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 17 June 2013.

Associate:

Date: 17 June 2013