Field and Kingston (No 2)

[2019] FamCA 124

FAMILY COURT OF AUSTRALIA

FIELD & KINGSTON (NO. 2) [2019] FamCA 124

FAMILY LAW – CHILDREN – International travel

APPLICANT: Ms Field

RESPONDENT: Mr Kingston

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 2095 of 2014

DATE DELIVERED: 21 January 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C. Munk

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr P. Kingston in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. Directions in terms of directions 4 to 19 made 14 November 2017 with the following amendments:

   (a)       both parties are to file and serve any Amended Initiating Application, Response and updated Financial Statement upon which they intend to rely by 18 February 2019;

   (b)       the consolidated affidavits referred to in order 5 of 14 November 2017 are to be exchanged between the parties by 11 March 2019 and following exchange are to be forthwith filed;

   (c)       expert reports are also to be filed by 18 March 2019;  and

   (d)       the proceedings are listed for a compliance check before a Registrar on 21 March 2019;

2. The proceedings are not to be allocated a trial date unless and until these trial directions have been fully complied with, and, in the event of non-compliance, the Registrar is to relist the matter before me.

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 Field & Kingston 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 PARRAMATTA

FILE NUMBER: PAC 2095 of 2014

MS FIELD

Applicant

And

MR KINGSTON

Respondent

REASONS FOR JUDGMENT

The current application

1. The parties have been engaged in a property dispute for a number of years following the breakdown of their marriage.  The parenting of their three children – daughters aged 15 and a-half and almost 14, and a son aged 11 – has not been the subject of a dispute, as the parties have come to a shared care arrangement amicably with the exception of a single issue which is the subject of hearing before me today. 

2. The single issue in relation to the parties’ three children relates to overseas travel.  Some specific orders are sought in relation to this matter and the associated issue of passports for the children in the mother’s Amended Initiating Application.  In this interim application she also seeks orders in relation to overseas travel and passports generally and also in relation to specific travel that she proposes for the children in April 2019.  The reason for the relative urgency of this hearing is that she needs to make the payments in relation to travel and, in that regard, wishes to utilise Frequent Flyer points and that must be done expeditiously.

3. The mother seeks a particular order that she be permitted to travel internationally with the three children for the purposes of the middle child attending at skiing training in Country M and for the other two children to have a holiday in Country M at the same time.  The proposed order does not contain particular dates for the travel but it became clear in the course of the application that the dates for the ski training are between 5 and 15 April 2019 and that the mother intends the travel to take place over about two weeks.  It is not in dispute between the parties that these dates fall outside of the school holiday period in New South Wales. 

4. The father opposes this proposed order and also further orders that the mother seeks in relation to future overseas travel.  The orders that she seeks, if made, would permit each of the parents to travel overseas with the children so long as information in relation to the intended travel, the itinerary for the travel and contact details during the period of travel are provided to the other parent within a period set out in the orders, and that the travel is for no longer than 21 days on each occasion.

5. To give effect to these orders, the mother also proposes that within 14 days the father provide to her the youngest child’s passport that she will return to him in the event of overseas travel by the father with that child, and that the mother be authorised to obtain passports and travel documents for the children which she proposes to be kept in her possession.

6. Of significance, in my view, and a matter that was raised in the course of the proceedings is that there is no requirement under the mother’s proposed orders upon the parents to ensure that travel with the children occurs only or substantially in the school holiday period.  The orders the mother seeks are, in effect, very broad open-ended orders with respect to three school-aged children.  The father also opposes the general orders sought by the mother in relation to the future travel and the order in relation to passports to give effect to those orders.

7. It is the mother’s position that the middle child is a talented skier and has been given the opportunity to undertake a ski course in Country M.  She is also of the view that it would benefit the other two children to have a holiday in Country M at the same time.  The mother also takes the view that there may be other opportunities to travel overseas prior to these proceedings being resolved and she wishes to be able to have the children receive the benefit of that travel without having to return to Court each time such travel is envisaged.  She also envisages that it is likely that the parties’ son may have an opportunity to travel to New Zealand for rugby this year, as he apparently did two years ago.  Further, the mother deposes that as she has some connection with a person who is involved in the management of a travel company, this person may be in a position to organise for her and the children to travel on a cruise, which is an opportunity she would like to be able to take up in the future. 

8. The father opposes the orders proposed by the mother for various reasons.  Many of the matters raised by the father in this regard are irrelevant to this application as they relate to the mother’s alleged conduct in the property proceedings.  As I explained to the father, who is self-represented in this application, the Court will make such order as is considered proper, having regard to the best interests of the children being the paramount consideration. 

9. The father’s specific relevant opposition to the proposed orders is that he contends there is a risk that the mother will not return the children to Australia if she’s permitted to travel with them, that overseas travel outside the school holiday period is detrimental to their educational development, and that he sees no necessity for the children to travel overseas at this stage. 

10. As this is a parenting application, it must be determined by reference to the best interests considerations set out in section 60CC of the Family Law Act. The dispute is, however, of very narrow ambit and virtually none of the matters required to be considered under that section are relevant to the application. While it is true that if there were an unacceptable risk that the mother would not return the children to Australia if she were permitted to travel with them overseas this would deprive the children of having a meaningful relationship with their father, there is no evidence at all that this risk exists. The father had to ultimately concede that this was the case in the course of these proceedings.

11. The mother contends, and it is hardly surprising, that the children have expressed a view that they wish to travel overseas.  I give no weight to their views in this regard, given the subject matter of the topic under consideration.  The only relevant matters, in my view, are the attitude of the mother to the responsibilities of parenthood in proposing the order that she does and the positive evidence to the effect that the middle child has been detrimentally affected by significant absences from school to date. 

12. The mother does not dispute that skiing is a valued recreation for the children.  Indeed, it’s central to her affidavit and her position that it is valued and to their benefit. She has taken the children on many ski trips in recent years, including an occasion in June 2018 “for about two weeks” which appears to have occurred outside the school holiday period, as she says the child “had obtained a leave of absence from her school for this period”.  The mother deposes that there was another occasion in mid-September 2018 and it appears that some part of this travel also occurred outside the school holiday period, as she deposes to all three children having “a couple of days off from school during this time”.  It appears that the proposed trip to Country M will take place over about two weeks, which, as previously noted, is to occur during a period not within the school holidays.

13. In her affidavit and in correspondence with the father and his previous lawyers, the mother also envisages that there will be another ski training camp for the middle child in Country N and it appears to be suggested that this will also occur some time this year.  As also noted, the mother seems to envisage that there may be opportunities for the children to travel on a cruise, and while it was submitted from the bar table that no travel other than the April trip to Country M would take place outside the school holidays, the mother does not depose to this, nor does she seek orders that such travel occur only in the school holiday period.

14. In many disputes of this nature, the Court does not have any information about the attitude of the school towards children being absent for reasons other than illness, and in many cases there is no positive evidence to suggest that such absence would be detrimental for the child.  Reasonable minds disagree about parenting practices such as removing children from school for the purposes of travel with legitimate benefits and detriments able to be raised.  However, in these proceedings, the father relies upon a letter dated 26 July 2018 from the middle child’s school directed to both parents in relation to the issue of that child’s absence from school.  It is noted in that letter that she had been absent for 19 days out of a possible 102 days by the middle of last year.  The letter from the child’s coordinator goes on to say:

    If this level of absence continues it will negatively impact on the child’s learning and results.

15. It is noted that this letter was written prior to the ski holiday in September 2018 which appears to have occurred, at least in part, outside the school holiday period.  The father does not depose to bringing this letter to the mother’s attention even though it was directed to both of them and was posted to the former matrimonial home where he alone lives.  He also does not depose to steps that he took after receiving the letter in relation to the child’s attendance at school.  The mother claims through her solicitor that she was not aware of this letter. 

16. In my view, it is a matter of concern that the mother does not seem to have been aware of a significant issue raised by the school that appears to have been brought about by her withholding the child from school for a significant period of time.  I am also not aware of the contractual arrangements between the school and parents in relation to steps that might be taken if the child is not attending school as required, particularly after parents have been warned about this issue. 

17. In these circumstances, while undoubtedly there would be some benefits to the child in being able to develop her skills in an activity in which she seems to be particularly competent and which she undoubtedly enjoys, where there is positive evidence about her absence from school and the impact upon her education, I am concerned that there may be detrimental impacts upon her as well. 

18. The benefit of travel to Country M in April for the other two children, who are not participating in the ski program and where that travel is to occur outside the school term, is difficult to identify. 

19. The concern about open-ended overseas travel on any occasion for up to three weeks with the only requirement being notification to the other parent where each parent holds parental responsibility for the children cannot be justified, in my view, on an application of the best interest matters.  There is a risk, in my view, that the children will miss further school and there is potential for them to undertake significant travel during non-school holiday periods. 

20. Such an order also places all of the decision-making in relation to this issue (which is the only parenting matter of dispute between the parents), in the hands of one parent to the exclusion of the other.  This cannot, in my view, be justified in circumstances where there are no concerns raised about any risk posed by the father or any reason why his decision-making responsibility should be excluded in this manner.

21. Further, in circumstances where the orders in relation to the travel to Country M would authorise the children to be absent from the schools they attend, where I am unaware of the consequences for the children if they miss more school time, especially when the parents have been warned about this issue, and the view has been expressed that it’s detrimental to the children’s education, I cannot be satisfied that such an order in relation to this trip is in the children’s best interests. 

22. For the forgoing reasons, the mother’s application is dismissed.

Future trial directions

1. In relation to the future conduct of the proceedings, because the previous orders that I’ve just delivered, in effect confirm that reports are to be obtained, the orders in relation to preparing the matter for trial should be reinstated with a timetable that does not require another court event. Previously, orders were made for the affidavits and financial statements to be filed by a certain date and for there to be a future compliance check.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 January 2019

Associate: 

Date:  14 March 2019