FINK & ABERNATHY - [2011] FMCAfam 1467

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FINK & ABERNATHY

[2011] FMCAfam 1467

FAMILY LAW – Children – parenting orders – child's school – best interests of the child – orders relating to a child’s schooling are parenting orders.

FAMILY LAW – Children – overseas travel – application to restrain child from being removed from Australia – proposed travel to the Philippines – Hague Convention – whether the Philippines a Convention country – risk of non-return – security for return – whether security offered for return sufficient.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA, 65Y, 111B
Family Law (Child Abduction) Regulations 1986 (Cth), Sch 2

Cadena & Beltran [2010] FMCAfam 1165
Re G: Children’s Schooling [2000] FamCA 462 (2000) 26 Fam LR 143; FLC 93-025
Line & Line (1997) FLC 92-729
Sefu & Gyasi [2010] FMCAfam 1004

Applicant:

MR FINK

Respondent:

MS ABERNATHY

File Number:

SYC 5493 of 2009

Judgment of:

Scarlett FM

Hearing date:

12 December 2011

Date of Last Submission:

12 December 2011

Delivered at:

Sydney

Delivered on:

16 December 2011

REPRESENTATION

Solicitor for the Applicant:

Ms Zurawski

Solicitors for the Applicant:

Biddulph & Salenger

Solicitor for the Respondent:

Ms Cominos

Solicitors for the Respondent:

Cominos Lawyers

ORDERS

The Applicant and the Respondent are restrained from travelling overseas with the child [X] born [in] 2006.
The Applicant MR FINK born [in] 1962 and the Respondent MS ABERNATHY born [in] 1965 their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [X] born [in] 2006 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child [X] on the Airport Watch List otherwise known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until 16 December 2015 or further Order of the Court.
The Applicant father is to retain in his possession all current passports for the child and produce such passport or passports to the Court immediately upon request.
The child [X] born [in] 2006 is to attend the [L] School from the commencement of Term 1 in 2012.
Both the Applicant and the Respondent are to purchase a school uniform for the child and retain that uniform at their respective homes for the use of the child.

IT IS NOTED that publication of this judgment under the pseudonym Fink & Abernathy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5493 of 2009

MR FINK

Applicant

And

MS ABERNATHY

Respondent

REASONS FOR JUDGMENT

Application

The father of the parties’ child [X] has applied for orders:
a)restraining both parties from taking the child out of Australia; and
b)requiring the child to attend [N] School when he commences school at the beginning of 2012.
The mother wants to take the child out of Australia to visit extended family members in the Philippines. She wishes to enrol [X] at the [L] School.

Areas of Agreement

There are no areas of agreement.

Issues

There are two basic issues:
a)The father opposes the mother’s proposal to take the child to the Philippines because he does not trust her to return the child to Australia; and
b)The parties cannot agree on the school that the child should attend.

Background

The father was born in Australia [in] 1962. He is 49 years of age.
The mother was born in the Philippines [in] 1965. She is 46 years of age.
The parties have one child, [X], who was born [in] 2006.
They lived together for short periods of time and finally separated in January 2007.
The mother commenced proceedings against the father in this Court for parenting orders by filing an Application and affidavit in support on 11 September 2009. The proceedings were finalised by consent orders made on 18 March 2010.
Those consent orders provided that:
a)The parties are to have equal shared parental responsibility for the child [X];
b)Until the child starts school, he is to live with the father from Wednesday to Saturday each alternate week and from Tuesday to Saturday in the off week;
c)Once the child starts school, he is to live with the father during the school term on the same basis as above during the school term and for half the school holidays; and
d)The child otherwise would live with the mother.
The child [X] attained the age of five years on 18 October 2011 and is due to start school at the commencement of Term 1, on 30 January 2012.
The parties attended a Child Dispute Conference with a Family Consultant on 24 October 2011.

Evidence and Submissions

The father relies on his affidavit of 5 December 2011. In that affidavit he describes a history of hostility between the mother and himself. He doubts the mother’s credibility and does not trust her to return the child if she were to take him out of Australia:
Prior to the final orders being made, the respondent showed a lack of regard for [X]’s care and wellbeing and I am very fearful that this may occur again of she travels to the Philippines. I am reasonably confident that the respondent wants to return to Australia but I am fearful that she will not return with [X].[1]
[1] Affidavit of Mr Fink 5.12.2011 at paragraph [34]
As to the choice of school for the child, the father deposed that he enrolled [X] at [N] School in about September 2010 and told the mother that he had done so. The father’s reasons for choosing [N] School are:
a)it is near to the father’s home;
b)the child spends half of his time with the father;
c)the father’s mother attended that school;
d)the child knows a number of children who live in that area and will be attending [N] School; and
e)the father does not own a car or have a driver’s licence but the school is only about a 10 minute walk from the father’s home.[2]
[2] Ibid at [52]-[56]
The mother relies on her affidavit of 30 November 2011. In her affidavit the mother deposes that she has no plans to leave Australia permanently but she wishes to take the child to visit her parents, sister and other extended family members in the Philippines for a period of three weeks in April 2012. Her parents are elderly and in poor health.
The mother denies any intention to remain out of Australia with the child permanently, saying;
I have no intention of staying in the Philippines. My life is in Australia with [X]. [X]’s life and future is[3] in Australia and his father is in Australia. I also have a secure job, a comfortable home, a new partner and a strong and supportive community in Australia.[4]
[3] sic
[4] Affidavit of Ms Abernathy 30.11.2011 at paragraph [24]
Further, the mother deposes that:
a)[X] speaks very little Tagalog and English speaking schools in the Philippines are expensive and beyond her means;
b)She would be unlikely to get a job in the Philippines;
c)Whilst the Philippines is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, a friend from work has offered to provide a security bond in the sum of $10,000.00 as security that she would return to Australia.[5]
[5] Ibid at [25] – [26], [29]
The mother’s reasons for preferring [L] School for [X] are:
a)The child has attended pre-school in the [L] area in 2010 and 2011 and has made friends at pre-school;
b)Many of these children will attend [L] School;
c)She lives and works in [L];
d)She does not own a car or possess a driver’s licence; and
e)to take the child to and from school, the mother would have to catch two different buses, which would involve a travelling time of about 45 minutes.[6]
[6] Ibid at [35] – [37]
The mother challenges the father’s claim that he does not have a car or a driver’s licence stating that:
I recall that the father drives a [vehicle omitted] and I know this because last Saturday 26 November 2011, I saw him driving with [X] in [suburb omitted], and he dropped [X] off to me at the conclusion of his time with [X] at approximately 5.15 pm.[7]
[7] Affidavit of Ms Abernathy 30.1.2011 at [39]
The mother also relied on the affidavit of Ms R of 10 October 2011. I her affidavit, Ms R deposes that she has known the mother as a friend and work colleague for approximately fourteen months[8] and is confident from her knowledge of the mother that she would return to Australia with the child.[9]
[8] Affidavit of Ms R 10.10.2011 at paragraph [1]
[9] Ibid at [3] and [4]
The father’s solicitor, Ms Zurawski, submitted that the father did not trust the mother and feared that she would leave the child in the Philippines. [X] has only recently turned five years of age and is, in the father’s view, too young to travel to the Philippines.
Further, the security of $10,000.00 offered by the mother, on an unsecured loan from a friend, was insufficient in the circumstances. The father relies on the decision of Halligan FM in Cadena & Beltran[10], where his Honour held at [222]-[223] that, in the light of a party’s relatively high risk of non-return to Australia, an offer of security in the sum of $20,000.00 was insufficient.
[10] [2011] FMCAfam 1165
The father relied on the Smart Traveller Website produced by the Department of Foreign Affairs and Trade. The section relating to The Philippines recommends that travellers exercise a high degree of caution when travelling to that country. Certain areas carried mare severe recommendations, of “Reconsider your need to travel” and even “Do not travel”, but the mother’s proposed address in the Philippines is in Manila, which carries the warning that travellers should exercise a high degree of caution.
Ms Zurawski also referred to the decision of the Full Court of the Family Court in Line & Line[11], and a more recent decision of mine, Sefu & Gyasi[12].
[11] (1997) FLC 92-729
[12] [2010] FMCAfam 1004
The mother’s solicitor, Ms Cominos, has prepared a comprehensive and detailed Outline of Case Document. It is submitted that, although The Philippines is not a party to the Hague Convention and travellers have been warned to exercise a high degree of caution, the mother will be travelling not as a tourist but as a native of the country.
The mother submits that the purpose of the proposed visit would be in the child’s best interests, to meet his maternal grandparents, who are both elderly and frail. As to the proposed security of $10,000.00, it is submitted that it is important to note that another person, Ms R, has formed the view that the mother is not a risk of non-return to Australia and holds her in such high esteem and regard that she is prepared to offer this money to support the mother’s application to travel with her son to The Philippines. Any increase in the security would impose financial pressure on the mother, who is only in receipt of a low income.
It is also submitted on behalf of the mother that the child [X] has already established a bond with the [L] School. Ms Cominos referred the Court to the Family Consultant Memorandum, where the Family Consultant identified these issues about the child’s schooling:
· It would also be important that [X] has the opportunity to participate in the relevant orientation days for the school he eventually attends so as to assist him to be school ready and possibly less anxious on his first day at school.
It was further submitted that:
a)The child has already attended an orientation day at [L] School and would be confused if he were forced to attend the orientation day at [N] School, if he had not already missed it;
b)The strain on [X] attending school at [N] would be enormous because of the travelling required; and
c)The father has a car and the ability to drive.

The Relevant Law

In the case of Sefu & Gyasi[13], which was relied upon by the father, I set out at [42] – [46] my understanding of the law to be applied when dealing with an application by a parent to take a child out of Australia temporarily:
42     .    In any application to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia.
43.    The Full Court of the Family Court of Australia considered this question in Line & Line[14], and earlier in Kuebler & Kuebler.[15] Line & Line concerned an application by a mother to take a child out of Australia to the United States of America for a holiday. It was held that the Court must consider the degree of risk that the child will not be returned to Australia and whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
44.    In this case, Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows that [E] 9s not a party to the Convention.
45.    That, of course, is not the only matter for the Court’s consideration in this matter. As their Honours pointed out in Line, the court must consider the purpose for providing a cash security:
(a)    to provide a sum which will realistically entice the person removing the children to return; and
(b)    to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.[16]
46.    The Court must also consider, when assessing the degree of risk that the departing parent may choose not to return such considerations as:
…the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family and friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).[17]
[13] supra
[14] (1997) FLC 92-729
[15] (1978) FLC 90-434
[16] (1997) FLC 92-729 at [4.48]
[17] (1997) FLC 92-729 at [4.49]
When making a decision about the proper school for a child to attend, it is not the case that there is any presumption that favours acceding to the proposal of the parent with whom the child is living. The Court must consider the best interests of the child concerned, by having regard to the objects of Part VII of the Family Law Act 1975 and the principles underlying Part VII, as set out in s.60B of the Act (see Re G: Children’s Schooling[18] at [65]-[67]).
[18] [2000] FamCA 462; (2000) FLC 93-025
It is always the case that in making a parenting order the Court must consider the best interests of the child concerned as the paramount consideration (s.60CA). The Court determines what is in a child’s best interest by considering the matters set out in subsections 60CC(2) and 60CC(3), where relevant.
I am satisfied that orders relating to the particular school a child is to attend are parenting orders, as defined in subsection 64B(2) of the Act:
(i) any other aspect of the care, welfare and development of the child or any other aspect of parental responsibility for a child.
Thus, the Court has an obligation under s.61DA to apply the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for the child. The Court should also consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (see section 65DAA).

Conclusions

The parties entered into final consent orders on 18 March 2010 that provided that they should have equal shared parental responsibility for [X]. The consent orders also provide that the child should spend an equal amount of time with each parent.
Neither party has applied to vary or discharge those orders. Despite the evidence of suspicion and mistrust between the parties, no submissions were made to the Court that equal shared parental responsibility was no longer in the child’s best interests, nor was any submission made that the equal time arrangement was no longer in the child’s best interests or reasonably practicable.
Accordingly, I am not of the view that either of those arrangements should be varied.
Turning first to the mother’s wish to take the child out of Australia for a visit to the Philippines in 2012, I am satisfied that she has good reasons for wishing to do so. It would appear to be in the child’s best interests to spend time with his maternal grandparents (see subparagraph 60CC(3)(b)(i)).
It is more likely than not that the mother has an intention to return to Australia after her holiday in the Philippines is over. She does not need the Court’s permission to go, only to take the child with her (s.65Y). She does not have the father’s written consent (s.65Y(2)(a)), so she needs a court order (s.65Y(2)(b)).
It is a concern that The Philippines is not a party to the Hague Convention (Family Law (Child Abduction Convention) Regulations 1986, Sch. 2). If the mother were not to return the child to Australia, it would be very difficult for the father to secure his return.
The mother has offered a security of $10,000.00, coming from an unsecured loan from a friend from work. In my view, this is quite insufficient to be a realistic enticement to the mother to return the child to Australia, especially as the money is being put up by someone else.
The amount of $10,000.00 is also insufficient to serve as an adequate provision to the father to take action in proceedings in Australia and the Philippines, assuming such a remedy is available in the courts of that country.
Ms R was not called to give evidence, so the Court only has her affidavit to consider. It is somewhat concerning that a person who has known the mother for only fourteen months would be prepared to offer the sum of $10,000.00 as security for the mother returning the child to Australia, an event over which Ms R would have no control whatsoever.
In the circumstances, I am not satisfied that the mother should be permitted to take the child out of Australia. She is free to make the journey herself, or she may consider whether either or both of her parents may be able to fly to Australia for a holiday.
I will make the orders sought by the father in respect of this issue.
The other issue to be decided is which primary school the child will attend in 2012, [N] or [L]. There is no evidence that one school is significantly inferior to the other in terms of its facilities, resources or the professional standards of its teaching staff. Either one would most probably be perfectly adequate for the child.
To my mind, it is of little relevance that the child’s paternal grandmother attended [N] School. The father prefers [N] because it is nearer to him. It may be the case that the child knows children who will be attending [N] School, but there is also evidence that he knows, through pre-school, children who will be attending [L].
There is a factual dispute between the parties as to whether the father does or does not own a car. The father says he does not have a current driver’s licence, let alone a car, but the mother deposes that she has seen him driving a [vehicle omitted].
Neither party gave oral evidence, so it has not been possible to test these conflicting assertions by cross-examination. No evidence has been produced on subpoena from the Roads and Traffic Authority, showing that the father has a car registered in his name. The

Court cannot make a finding of fact about this issue.
It is uncontroversial that the mother does not have a car and would need to take the child on two separate buses to take him from home to school and back again. This would appear to be oppressive for a five year old just starting school.

This child has already attended an orientation day for [L] School. His views have not been obtained on the matter, and he is only five years old anyway. However, it would appear to be in his best interests to commence his school education at [L] School, as the mother wishes.
Orders will be made accordingly.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 16 December 2011