INGLE & STINSON

FEDERAL CIRCUIT COURT OF AUSTRALIA

INGLE & STINSON

[2014] FCCA 1826

Catchwords:
FAMILY LAW – Children aged 12 and 9 – overseas travel – mother wishes to travel to (country omitted) for four weeks – father opposes travel on basis it will be unduly disruptive and represent risk if older child falls ill – parties share parental responsibility for children equally pursuant to consent order – children parented in equal time regime – children derive from (country omitted) background – assessment of risk – weighing up of possible benefits and detriments of proposed travel – best interests.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 61B; 64B

Bartel & Schmucker (No.3) [2012] FamCA 1094
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hing [2010] FamCA 617
Bright v Bright (1995) FLC 92-570

Applicant:

MS INGLE

Respondent:

MR STINSON

File Number:

ADC 635 of 2011

Judgment of:

Judge Brown

Hearing date:

8 August 2014

Date of Last Submission:

8 August 2014

Delivered at:

Mount Gambier

Delivered on:

15 August 2014

REPRESENTATION

Counsel for the Applicant:

Ms Abbott

Solicitors for the Applicant:

D’Angelo Kavanagh

Counsel for the Respondent:

Ms Hastwell

Solicitors for the Respondent:

Doman Lawyers

ORDERS

The mother and the children of the marriage X born (omitted) 2002 and Y born (omitted) 2005 (hereinafter referred to as “the children”) be permitted to travel outside of the Commonwealth of Australia between 13 September 2014 and 11 October 2014 for the purpose of the mother and children travelling to (country omitted).
The travel envisaged pursuant to order (1) hereof is subject to the following conditions:
(a)The mother take out travel insurance for the entire period of the envisaged travel, at her own expense, with an appropriate insurer, in order to obtain medical and accident insurance for herself and the children, including hospital cover whilst she and the children are outside of Australia;
(b)The mother is provide a copy of the relevant policy of insurance to the father ten days prior to the date of her departure from Australia;
(c)The mother is to provide an itinerary of the proposed travel to the father, which is to include contact details including relevant mobile telephone numbers and addresses applicable whilst the child is outside of Australia together with details of all flights to be taken by the children, including times of departure and arrival and flight numbers and carriers ten days prior to the date of her departure from Australia;
(d)The mother take all necessary steps, including travelling with an appropriately equipped computer, to enable the children to have communication with the father via Skype on at least two occasions each week, whilst the children are outside Australia.
All extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 635 of 2011

MS INGLE

Applicant

And

MR STINSON

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Ingle “the mother” and Mr Stinson “the father” are the parents of X born (omitted) 2002 (currently aged 12 years) and Y born (omitted) 2005 (currently aged 9 years).
As the names of all concerned suggest, the family has an (country omitted) heritage. The mother wishes to travel, with X and Y, to a town in the province of (country omitted), in (country omitted), for a period of approximately four weeks. Members of her family live in the town concerned.
This visit is proposed to take place in the last two weeks of term three and for the entire two weeks of the September/October school holiday in 2014. The necessary tickets have not yet been booked, although the trip has been mooted since May of this year.
The reason why the travel arrangements have not been finalised is that the father vehemently opposes the children leaving Australia for (country omitted). He characterises the mother as an abusive and negligent parent and, as a consequence, fears for the safety of the children, whilst outside this country and away from his immediate influence.
He is also concerned that the proposed trip will be disruptive for Y’s education and religious instruction, as well as potentially injurious for X, who has not always enjoyed robust health. She has a propensity to suffer lung infections.
The motivating factor for the trip, from Ms Ingle’s perspective, is the ill-health of her grandmother, who is in her eighties and suffers from dementia. It is thought that she is not long for this life. The mother wishes to pay her last respects to the lady and wishes the children to accompany her. She believes that the children will benefit from being able to interact, with other members of their maternal family, who live in (country omitted).
Mr Stinson characterises the children’s relationship, with their great-grandmother, as being tangential and the nature of the visit itself as “morbid”. He is also concerned, although it is not a strong plank of his case, that Ms Ingle may not honour her promise to return the children to Australia.
In all these circumstances, he believes that any potential benefits, arising for the children, from the trip, are greatly outweighed by the obvious deficits to it. It is his case that Y and X are likely to derive far more benefits, from travelling to (country omitted), when they are older and this is the appropriate time for overseas travel to be considered, rather than now.
For her part, Ms Ingle regards any claim that she will not return Y and X to Adelaide as being “fanciful”. She was born in Adelaide and has lived in the city all her life. She owns her own house and has secure employment in Adelaide. From her perspective, the real reason the father wishes to prevent the trip is to exert control over her.
It is her case that the children are enthusiastically looking forward to travelling to (country omitted) and will greatly benefit from meeting their (country omitted) relatives and being exposed to the cultural, linguistic and culinary traditions from which they derive. In this context, she asserts that Y and X will be very disappointed, if the trip does not eventuate.
From my perspective, which derives from a consideration of the administration of justice as a whole, there must be some proportionality between the resources, in both a financial and psychological sense, consumed in pursuing any issue and the moment and the complexity of the issue itself. These proceedings are expensive, not only for the parties involved, but also the community.
At first blush, four weeks is not a lengthy period of time, when the extent of the children’s remaining period of education is considered. (country omitted), a signatory to the Convention on International Child Abduction,[1] is a developed country, which is a member of the (country omitted). It is also a country with a rich cultural tradition, which makes it one of the most visited by tourists from around the world.
[1] Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980
In this context, the Australian Government has no concerns about its citizens visiting (country omitted), other than they should exercise normal safety precautions and watch out for pick-pockets and be aware of acts of petty criminality in tourist areas.
(country omitted) is not generally considered to be an intrinsically hazardous destination. In addition, Australia, a country which has had significant history of migration, particularly since the end of the Second World War, has drawn much of its population from (country omitted).
In this age of mass travel, it is a relatively common phenomenon for Australian families to travel overseas, particularly to attractive holiday destinations, such as (country omitted) and (country omitted). In addition, as many Australian citizens were either born overseas or have a parent who was, it is a common occurrence for such individuals to wish to acquaint their children directly with the cultural background from which they, at least in part, derive.
However, regrettably, in the current matter, the parties themselves were unable to reach a compromise of the issue, which was acceptable to them both. Accordingly, it falls to the court to determine the matter according to the provisions of the Family Law Act 1975.

The nature of the hearing

On 2 May 2014, the mother sent the father a text message which read as follows: “Mr Stinson, I’d like to take the children overseas for six weeks to see my grandmother who is not well. We are looking at going towards the end of July. Can you please let me know if you allow us to go as I need to organise passports and booking flights.”[2]
[2] See mother’s affidavit at paragraph 8
Initially, the father responded positively to this overture. He agrees that he sent his own text message, to the mother, which read as follows: “Hi Ms Ingle, I agree in principle but I will require legal/court documents drafted complete with details of your trip and agreement from you for the children to travel to (country omitted) with me for a similar time. Please when this is arranged. Regards, Mr Stinson.”[3]
[3] Ibid
The mother was agreeable to the father’s proposal regarding his future travel with the children. In this context she made arrangements to travel between 29 July and 10 September 2014. These dates were motivated by the fact that her father, the children’s maternal grandfather, was also arranging to travel to (country omitted), in this period, to visit his ailing mother, the children’s great-grandmother. However, on 20 May 2014, the father advised the mother that he had changed his mind.
As a consequence of this refusal to provide his consent, the mother’s solicitors formally wrote to Mr Stinson on 22 May 2014 advising him of the mother’s intention to commence proceedings, in this court, in order to facilitate her plans to travel overseas with the children.
Ultimately, these proceedings were filed on 26 June 2014 and, on the mother’s request, provided with an expedited hearing date, which was 15 July 2014. Mr Stinson was formally served with the application a few days before hand. As such, he had not had time to file answering material on 15 July 2014.
From the mother’s perspective, given the ill-health of her grand-mother and the imminence of the travel relating to it, the matter remains an urgent one. Her father was not able to change his travel plans, due to work commitments. However, in an attempt to assuage some of the father’s concerns, the mother has changed her plans. She now envisages a shorter period of travel, which will consist of two weeks of holiday and two weeks of the school term.
On 15 July 2014, I was persuaded as to the urgency of the situation, from the mother’s perspective. The father also conceded to me that, in general terms at least, overseas travel was beneficial for children and earlier he himself had provided his consent for Y and X to travel to (country omitted), albeit he had not given the issue a considered decision.
In these circumstances, I determined that the matter should be adjourned to 8 August 2014 for interim hearing on the issue of overseas travel. This was an error of nomenclature on my part. For obvious reasons, there can be no interim or provisional decision regarding Y and X travelling to (country omitted) later in the year. The question must be determined, one way or the other, on a final basis.
What was intended, by the use of the word interim was a reference to the type of hearing, which would take place on 8 August 2014. The intention was that there would be a short hearing, not involving any oral evidence or cross examination, but which would take place solely on the basis of a reading of affidavit material, filed by each of the parties, and submissions made on each of their behalves.
I appreciate that the issue raised in these proceedings is of great significance to each of the parties concerned. However, in my view, the issue was one amenable to be being determined in a truncated hearing, which did not involve oral evidence or cross examination.
In my assessment, the case is not one which turns on my assessment of the parties’ respective levels of credibility relating to a range of issues. In this context, I accept that each parent has a valid reason for approaching the case, in the manner in which he or she has done so.
The fact remains that the parties have a considerable history of litigation, with one another, in both this court and the Family Court of Australia. As such, it is axiomatic that they do not have an easy or trusting parental relationship with one another.
As such, their parental politics seemed to be a major factor in the polarisation of their current positions regarding the children travelling overseas to (country omitted). However, in my assessment, it was not likely to be useful, either to the court or the children themselves, for there to be a detailed examination of these difficult circumstances.
In reaching this conclusion, I was influenced by the provisions contained in division 12A of Part VII of the Family Law Act 1975. This division contains principles, which the court is directed to bear in mind, by the legislature, in its conduct of child related proceedings. Lawyers, often attracted to easy catch phrases, like to refer to these principles under the rubric of less adversarial proceedings.
The principles can be summarised as follows:
·The court is to consider the impact of the court case on any child concerned by it;
·The court is to actively direct, control and manage the conduct of the proceedings;
·The case is to be conducted in a way which will safe-guard any child from being subjected to abuse, neglect or family violence;
·The proceedings are to be conducted in a way that will promote cooperative and child-focussed parenting by the parents concerned;
·The proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible.
I am very well aware that, in deciding the issue of whether Y and X will travel to (country omitted), one parent will inevitably feel hard done by, in whatever decision I reach. If the mother is not allowed to travel, with Y and X, as she plans, she will feel that Mr Stinson, from whom she has been separated for many years, is able to dictate to her what she does in respect of the children.
On the other hand, if I do what Ms Ingle wishes, the father will feel that his legitimate concerns, as a capable and involved parent, have not been properly heeded by the court. Inevitably, this unfortunate state of affairs has the potential to drive further disputation between the parties, which will deleteriously reverberate for the children concerned in future.
I am told that the children are aware of the mother’s plans to travel with them to (country omitted). It is Ms Ingle’s perspective, which does not seem inherently unlikely, that the children are excited about the trip and are likely to be disappointed if it does not occur. Accordingly, the outcome of the case is likely to have significant implications for Y and X, including quite possibly their attitude towards each of their parents.
In all these circumstances, I reiterate how unfortunate it is that the court is called upon to determine this issue. These concerns are heightened when regard is had to the current parenting arrangements for Y and X, which are mandated by an order of Cronin J of the Family Court of Australia made on 27 February 2013.
Pursuant to these orders, which were made with the ostensible consent of each of the parties, it was agreed as follows:
·The parties were to have equal shared parental responsibility for Y and X.
·The children were to live, with each parent, on a week about basis, from the conclusion of Friday during school terms and 5:00pm on Friday, during school holidays;
·During school terms, the children were to spend time with the parent not having their primary care on Tuesday from the conclusion of school until 7:00pm.
·Arrangements were also made to ensure that the children spent special occasions with each of their parents;
·It was agreed that the children would attend (omitted) College and (omitted) College;
·It was also agreed that the children would continue to engage in a wide variety of extra-mural activities. In X’s case, this included singing, piano, drama, karate and sport. In Y’s case, it included tutoring, karate and sport;
·The orders dealt with the possibility of interstate travel but not overseas travel.
Accordingly, these orders envisage both Ms Ingle and Mr Stinson being comprehensively engaged in every aspect of X and Y’s lives, within the legal framework created by the Family Law (Equal Shared Parental Responsibility) Act 2006.
It is also clear, from the orders, that the parties themselves envisage Y and X having a comfortable and well-resourced childhood, which will include a private education and involvement in all manner of extra-curricular and other activities.
Essentially, the parties have agreed on a regime of joint parenting for Y and X. In so doing, they acknowledge that one parent is not to have pre-eminence over the other. Rather, each was to have the same indissoluble level of parental authority for the children, as the other. In Bartel & Schmucker(No.3)[4] Cronin J said as follows, regarding the nature of such parental responsibility:
“…is a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.”[5]
[4] Bartel & Schmucker (No 3) [2012] FamCA 1094 at [13]
[5] Ibid at [21]
Regardless of their criticisms of one another, it seems clear that Ms Ingle and Mr Stinson are united in the view that Y and X should be given every opportunity in life to achieve their full potential in maturity and have a happy and safe childhood.
However, due to differences in personality and their difficult history with one another, they are likely to disagree on aspects of how these aims are to be best secured.
Given these jointly held aspirations and the parties’ agreement between the parties memorialised in the order of 27 February 2013, it is not appropriate to revisit how parental responsibility for Y and X is to be allocated.
However, as the intractable nature of the current dispute demonstrates, how the parties are to exercise such joint parental responsibility is not without its issues. Again, Cronin J said as follows in respect of the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [6]
[6] Ibid at [18]
For all sorts of reasons, the parties’ capacity to jointly parent Y and X, in the sense, envisaged by Cronin J, is likely to be compromised from time to time. They do not consult empathetically. They find it difficult to reach any organic consensus.
In these circumstances, I am anxious to avoid the court process itself putting further pressures on the parties’ parenting relationship, with potential detrimental consequences for the children. This is likely to occur if the parties embark on cross-examination of one another, which I fear will inevitably be bitter in nature and pick at wounds which had previously begun to heal.

In my view, these considerations favour the issue of overseas travel being determined on the papers. I am satisfied that I have the authority to determine the matter, in this way, pursuant to the provisions of section 69ZWX(2). In any event, the issue concerns four weeks of the children’s lives. I am concerned that, given their animosity for one another, the parties have lost sight of this fundamental circumstance.

Background

The mother was born on (omitted) 1971. She is employed as a (omitted). The father was born on (omitted) 1967. He is employed as a (omitted) in the (omitted) industry.
The parties married on (omitted) 1993 and separated, in difficult circumstances, in early 2011. The catalyst for the separation was a notification of child abuse, to Families SA, regarding the mother’s excessive and inappropriate physical discipline of the children.
This involved the mother grabbing Y by his hair and dragging him to brush his teeth. X witnessed this incident and was also assaulted by her mother. Police were notified of this incident, but sighted no injuries on either of the children.
Ms Ingle was charged by the police with assaulting Y. She was placed on bail, subject to the condition that she live with her parents and not come into contact with the children.
Families SA, in conjunction with the Child Protection Service, ultimately substantiated the episode in question as an incident of child abuse, but the Department took no formal action in respect of it.
Against this background, the children lived with their father, in the former matrimonial home. They did not see their mother for an extended period of time. Proceedings were commenced in the Federal Magistrates Court (as this court was then known). Ultimately, the proceedings were transferred to the Magellan list of the Family Court of Australia and the matter proceeded towards a final hearing.
Given the circumstances of the matter, an independent children’s lawyer was appointed for the children and two family assessment reports were prepared. It would seem to be the case that these various interventions lead to the consensual resolution of the matter in February 2013.
It is the father’s position that the episode of February 2011, which led to the police charges against the mother, was not an isolated incident. It is his case that, during the parties’ marriage, he had concerns about the violent and volatile manner, in which the mother interacted with the children and indeed with him. He acknowledged that his own behaviour has not always been blameless.
For her part, the mother acknowledges that she did use physical punishments to discipline the children in the past but denies the level of intensity alleged by the father. More significantly, the mother asserts that, during the parties’ marriage, she was subjected to coercive and controlling behaviour by the father, which caused her to feel that she was living in a pressure cooker environment. She asserts this situation, in part, precipitated her inappropriate reactions to challenging behaviour displayed by the children.
These matters are provided by way of background only. It is, of course, a very significant matter that a finding of child abuse was recorded against the mother. However, in the context of these proceedings, I am not in a position to make concluded findings of fact about the dynamic of the parties’ marital relationship, other than it was obviously, from time to time, very difficult indeed and clearly turbulent.
Given this background, it is hardly surprising that Dr B, in the most recent of her family assessment reports, dated October 2012, reported significant differences in the parties’ parenting styles and significant tensions in their relationship with one another post separation.
The mother regarded the father as being unduly smothering of the children and asserted that where she saw white about an issue, Mr Stinson would automatically see black.
For his part, the father reported that Ms Ingle was prone to be rude and critical of his parenting. His preference, at the time of the second family assessment report, was for the parties to communicate more directly with one another, rather than in writing.
In interview with her, Dr B described both children as being positive about each of their parents. Nothing out of the ordinary was observed in respect of the children’s interaction with either their mother or father.
In her assessment Dr B was careful not to encroach upon the role of the trial judge, as the fact finder in the case. In this context, she made two recommendations, depending on what findings of fact eventuated from the trial process. They were as follows:
·If a finding of coercive controlling family violence was made against the father, the children should live primarily with their mother and spend time with their father, each week;
·In the alternative, if no finding of coercive controlling violence was made, the children should live in an equal shared care regime.
In the context of the second recommendation, Dr B cautioned against the children being away from either of their parents, for extended periods.
I am neither entitled nor in a position to know why the parties elected to compromise the case, in the manner in which they did. However, it does not appear to be an unreasonable inference, for me to draw, that the agreement was an uneasy one, and was reached, at least partly, in fear of something worse being directed by the court following the unpredictable process of a trial.
Certainly, the parental relationship, between the parties, indicates few of the traditional indicia usually thought to militate in favour of shared care arrangements. These include compatible parenting styles; a ready capacity to communicate effectively and cordially; and an empathetic ability to solve parenting problems.
The mother is resentful that the father has raised the project Magellan report, dated 17 June 2011, in these proceedings, which relate to the issue of overseas travel, but has elected not too make reference to more recent expert evidence, particularly the family assessment reports of Dr B.
It is the implication of her position that she believes that the father remains vindictively fixated on the past and is unable to accept that she has moved on, in her parenting, particularly because she has been able to extricate herself from an unhappy marriage.
On the other hand, it is the father’s position that he has much to be anxious about, as a consequence of the mother’s substantiated history of child abuse. It is his case that, in these circumstances, he has raised legitimate concerns about the children leaving Australia and being away from him for around about a month, which has never occurred, up to this stage, and was something Dr B cautioned against.

The mother’s case

The mother’s affidavit is brief. She is bemused that the father can have any objection to the trip in question. She proposes that she and the children will stay with her Aunt Ms T and family, who share their home with her ailing grandmother. It is her case that the house is a fifteen minute drive away from a major hospital in (country omitted).
The mother acknowledges that X has a history of lung infections. However, I am informed by Ms Ingle’s counsel that X has recently consulted her pulmonary specialist, who has measured her lung capacity at 120%. Mr Stinson does not challenge this positive diagnosis of X’s current state of health.
It is also the mother’s case that Mr Stinson has overstated the level of Y’s level of difficulty at school. She has provided a copy of his July 2014 student report, from (omitted) College, which indicates that he has received a B grade for the majority of his subjects.
More importantly, the mother has contacted Y’s class teacher and the director of the Junior Campus at (omitted) College regarding the possible implications of the travel, from an educational perspective. In this context, I have been provided with an email from Mr A, the Director of the school’s junior campus who writes as follows:
“… I believe that overseas travel with family is indeed a worthwhile experience for young people. The opportunity to put into practice some of their learning at school in the real world context is a wonderful and invaluable experience. I would only ever have reservations about such travel if it was an annual or regular occurrence which took time away from education within the school context.
Therefore I have no concerns about Y taking a short overseas trip with you and wish you all the best in this endeavour. Visiting a member of the family who is unwell is an important part of being in a family and I hope your grandmother’s health improves.”

Mr A has suggested that Y could approach the proposed trip as an informal school project, upon which he could report, to his class mates, when he has returned to Australia. In all these circumstances, given that she now proposes that the children would miss only two weeks of school, Ms Ingle submits that it is drawing an extremely long bow to assert that Y’s education will be detrimentally affected by the trip.
To the contrary, it is the mother’s position that both children will benefit from spending time in (country omitted) and being able to interact with members of their extended maternal family, who live in (country omitted).
She refutes any suggestion that the children will be compelled to remain at the bedside of their dying great-grandmother. Rather, it is her case that, after the children have paid their respects, they will be able to mix with family and enjoy the experience of living in an (country omitted) setting.
The mother refutes any suggestion that she is a negligent parent, who is dismissive of her children’s needs. She has supplied some of X’s medical records, which indicate that she (the mother) has regularly taken X to seek treatment.
In this context, she rejects the father’s assertion that she failed to ensure that X had a chest x-ray, as directed by her doctor. From her perspective, the x-ray was not pressingly urgent and she scheduled it around her work commitments. It is her case that any missed appointment, for X, was a result of miscommunication and late notice.

The father’s case

In his opposition to the mother’s proposal to travel with the children to (country omitted), Mr Stinson has sought to raise two other issues, which relate to the compromised nature of the parties shared parenting relationship. He seeks an order that the parties attend upon a psychologist or therapist, to be agreed between them, to take part in co-parenting counselling. In addition, he seeks an order that X and Y attend the Anglicare (omitted) program, which is designed for the children of separated parents in situations where conflict is high.
The father’s opposition to the children’s travel can be summarised in the following extract from his affidavit:
“Based on the history of the mother’s treatment of the children and events since the orders were made and given the current health and educational issues as set out herein, I submit there is a real risk that cannot be ignored to the children’s well-being and safety if they are allowed to travel to a foreign country with the mother.”[7]
[7] See father’s affidavit filed 4 August 2014 at paragraph 7

The father characterises the mother as being casual and at times negligent in her approach to the health concerns of the children, particularly X. I accept that X has suffered from serious bouts of respiratory illness, stemming from a diagnosis of mycoplasma pneumonia in 2009, which required admission to hospital.
Thereafter, she has displayed a worrying tendency to develop a chest infection or bronchitis. These conditions can come on suddenly and require urgent treatment with antibiotics. She suffered some scarring on her lung.
I accept that Mr Stinson is concerned about X’s health and is worried about the prospect of her falling ill, whilst overseas. He deposes that he is worried that X may not be able to access appropriate medical treatment whilst in (country omitted).
This concern is not based on any actual knowledge, which he personally has acquired from his own experience of either (country omitted) in general or (country omitted) in particular. In my assessment, his fear, about medical facilities in (country omitted), is an inchoate one.
In this context, the recent report from X’s pulmonary specialist is encouraging. Mr Stinson, through his counsel, has not sought to challenge this positive bill of health.
Late last year, X fell ill with a chest infection. As a consequence, it was deemed necessary for her to have a chest x-ray. As previously indicated, the facilitation of the x-ray in question remains a significant issue of controversy between the parties.
The father sent an email, to the mother, at around 9:20am on 6 December 2013, informing her that X needed to have the x-ray at 2:00pm that day. X did not attend for the x-ray. The mother responded at around 5:30pm that day indicating that she had been at work, when she had received the email.
In these circumstances, she had telephoned the clinic and asked if it would be acceptable for X to attend early the next morning. She complained about a lack of notice for the appointment, given her work commitments. At this stage, she also indicated that she had been informed that there was not actually an appointment for X made for 2:00pm that day.
It turns out that the advice the mother was given about the absence of an appointment was wrong. As such, she incurred the censure of the father and the doctor concerned. It is the mother’s position that there was no difficulty, from the perspective of X’s health, for the x-ray to take place the following day, as she had arranged it. Anyway the child had the medical examination she required and no disaster befell her.
In my view, the incident is more indicative of deficits in the parties’ facility to communicate with one another, without mistrust and miscommunication, rather than of any failings in the mother’s capacity and willingness to secure medical treatment for X.
Regrettably, X also suffers from alopecia. I have not been provided with any specific diagnosis or explanation as to why this upsetting condition has manifested for X. It has been suggested that it is due to an iron deficiency. It is unclear whether it has any psychological aetiology.
The mother’s preference is to deal with this deficiency through diet, whereas the father favours dietary supplements. X has been referred to a paediatric dermatologist, but I have not yet been provided with any report in this regard.
As with many issues, the mother sees the father as being pedantic, controlling and obsessively focussed on health issues. On the other hand, the father sees the mother as “flaky” and unduly cavalier in her approach to medical matters. In my view, the parties’ respective responses to their perception of the other’s failings is more emblematic of their parental relationship than illustrative of any actual parental failings.
Mr Stinson’s view of X’s health is that it is currently average. In this context, he posits that for her to travel overseas for an extended period will inevitably put her body under more stress. I am not certain as to the basis on which Mr Stinson has reached this conclusion. It is not based on expert evidence.
The tone of the father’s affidavit material is critical of the mother. Although Mr Stinson agreed to a shared parenting regime, for the children, he has nothing of a positive nature to say about Ms Ingle and her interaction with the children. It is my impression that he is incapable of objective judgment about the mother and her parenting.
The parties have very different views concerning Y’s scholastic aptitude. As previously indicated, the mother sees him as progressing reasonably well at school. On the other hand, the father characterises him as a highly vulnerable student. It seems to be the case that Y was recently diagnosed with dyslexia.
In this context, Mr Stinson has elicited reports from an occupational therapist, Ms B and from Y’s tutor, Mr M, regarding possible problems, which may arise for Y, in areas of reading, spelling, grammar and written language, if he is away from school for an extended period.
What is meant by the expression extended period is not defined in the correspondence originating from either Ms B or Mr M. However, Ms B indicates that she is in favour of the child having an overseas experience, whilst noting the challenge for Y is likely to lie in the duration of the trip.
Obviously, this must be the case. I find it difficult to see that either individual would regard two weeks, away from school, as being an extended absence. As with all things in life, there must be some balance between competing considerations.
Y is being raised in the (religion omitted) faith. He is due to have his first communion on September 20 this year, following sacramental instruction, which will commence on 31 August.
Clearly, if Y does travel to (country omitted), as the mother wishes, this will impinge upon those arrangements. From the mother’s perspective, she believes that it will not be unnecessarily injurious to Y, if he has first communion a little later than his peers.
The impression I have gained from Mr Stinson’s affidavit is that he feels that he does more in terms of supervising and encouraging the children’s homework and out of hours reading program than does the mother. This may be so. However, the issue must be appraised in the context of a two week absence from school.
Although the father originally conceded that there were likely to be some potential benefits, for the children, from travelling overseas with their mother, he can currently see no benefits whatsoever.
Indeed, he now asserts that there may be a risk, albeit a slight one, that the children will not return to Australia on the basis of what he characterises as Ms Ingle’s hostility towards him and the fact that she has family who live in (country omitted) and she herself speaks (language omitted).

The legal considerations applicable

Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child.
Accordingly the issue of whether the children concerned in this case should or should not travel to (country omitted) (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
The best interests of any child concerned are the paramount or most important consideration [section 60CA] in making any parenting order. Fundamentally, the court must decide whether it is in X and Y’s best interests to travel outside of Australia. Necessarily, given the structure of the Act, this is a multi-faceted inquiry.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply, to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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.”

The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).” This, of course, is the consideration dealing with abuse, neglect and family violence. These considerations are now to be given priority.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex.
Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests according to the criteria specified in section 60CC, within the overall matrix of objects and principles set out in section 60B.
Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors, both primary and additional.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)].
Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[8]
[8] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must also make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[9]
[9] See Line & Line (1997) FLC 92-729 at 83,846
Ms Ingle is an Australian National, who was born in this country and has lived in it all her life. Her parents, who migrated to this country from (country omitted), also live in Australia, as do her siblings.
In addition, Ms Ingle owns a real property in Adelaide and has employment here. On any view, her ties to Australia are very strong indeed. In addition, I do not assess her as being the sort of person who would disrupt the lives of her children, in terms of their longstanding scholastic and parental arrangements, in order to spite her former husband or satisfy some other inchoate emotional need.
In all these circumstances, I have no reason to doubt the bona fides of Ms Ingle’s application to travel outside of Australia. To the contrary, her reason for wanting to visit (country omitted), from where her family originates and where one of its members is gravely ill, is readily understandable. In my assessment, there is no appreciable risk that the mother will not honour her promise to return the children to Australia.
Somewhat belatedly, Mr Stinson concedes this to be the case. He did however raise the issue of flight risk in his affidavit material. This confirms my view that he, at times, lacks objectivity about the mother and is not likely to be the best source of information about her parental capacity.
Regrettably, it is my view that he has a propensity to exaggerate fears about his former wife and engage in hyperbole in regards to her failures, as both a parent and a person, as he perceives them. It is my impression that Mr Stinson has brought up every objection to the travel which he can think of, regardless of its overall merit. This scattergun approach has implications for my assessment of his overall objectivity and ultimate motivation in the case.
Accordingly, I propose to approach the case from the primary considerations relating to protective issues for children and other additional considerations relating to relationships; educational issues; cultural perspective; and parental insight.
Although X is only just twelve, and Y is around nine and a half, their views about the proposed trip are also likely to be relevant. These views have not been formally or independently canvassed. However, in general terms, I accept the mother’s evidence that the children are excited about the prospects of travelling overseas, which is likely to be a novel and exciting prospect for them.
So far as X is concerned, Mr Stinson asserts that there is an unacceptable risk that she will come to harm as a result of suffering an unexpected medical emergency, which the mother will be unable to respond to effectively, either because of her incompetence and lack of overall insight or because of a lack of appropriate services in (country omitted).
All assessments of risk require a degree of prognostication about the future, which of course can never be known in advance. As Cronin J said in Gin & Hing:[10]
“Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”
[10] Gin & Hing [2010] FamCA 617
I accept that X has a propensity to suffer lung infections. As such, there may be “a” risk or “some” risk of X coming to harm, as a result of falling ill, whilst she is in (country omitted), because such an eventuality can never be ruled out. The question in cases of this nature is the degree or quantification of the risk concerned.
It is the responsibility of the court to attempt to quantify the degree of risk, arising for X, from travelling, in the company of her mother, to (country omitted) generally, in an objective and rational manner and determine if the risk arising is one which is not reasonable for the court to accept, in all the circumstances prevailing, after having balanced that risk against any benefits which she (and indeed Y) may derive from such travel overall.
It is not appropriate, in my view, for the court to prevent travel because of some remote possibility that X will come to harm. For obvious reasons, there are likely to be differences in the standard of health care available to an ill child in countries which are developed, as opposed to those which are under-developed or remote.
At present, the prognosis from X’s pulmonary specialist is encouraging. She is in good health. In addition, it is proposed that she will be away from the normal providers of her care for a comparatively short period of time. This is likely to reduce the possibility that she will suffer an infection, whilst outside of Australia.
In addition, the mother is travelling to a (country omitted) country, with which she is culturally familiar and where she speaks the language used. In addition, she has access to relatives, who will be able to assist her in accessing any health services required in the event of an emergency.
Most importantly of all, (country omitted) is a member of the (country omitted) Community. It is a country which has a modern health system. This may not be as advanced as health services available in this country but, in my view, it cannot be said that the mother proposes travelling to a remote or significantly disadvantaged part of the world.
In my view, the possibility that X may contract some respiratory infection, whilst overseas, is not a risk of such moment to bar the travel proposed in this case, particularly if the mother is required to take out appropriate travel insurance, for herself and the children, which she has indicated to me that she is prepared to do.
In my view, there is no indication that the mother will overlook or otherwise be negligent in respect of any health issue, which may arise for X. In February of 2013, Mr Stinson agreed to sharing parental responsibility for the children with the mother and that the children should spend equal periods of time with each of their parents.
Necessarily, this situation, which the court was prepared to sanction, indicates that he has confidence in the mother’s parenting capacity to some significant degree. As previously indicated, it is my view that the issues arising in this case are emblematic of longstanding issues in the parties’ parenting relationship with one another rather than parenting capacity per se.
I accept that both Y and X have a close and loving relationship, with each of their parents [section 60CC(3)(b)]. In this context, I also acknowledge that it is likely to be significant change for the children, if they are separated from one of their parents for an extended period of time [section 60CC(3)(d)].
However, these considerations must be weighed against other factors. Particularly, the length of the proposed trip and the long term implications, it will have for the children’s relationship with the parent who is proposed to be left behind.
Y and X know their father well. They will not forget him during a four week holiday. The trip in question can have no implications for the warmth and intimacy, which currently exists in the children’s paternal relationship.
In all these circumstances, particularly the maturity of the children concerned, I do not think that the trip in question can be considered to be one of oppressive length for the children.
I also accept the mother’s evidence that she will enable the children to have Skype and other electronic communication, with their father, during the proposed trip. This will enable the children to touch base with their father from time to time.
As such, I do not think the proposed trip, will substantially affect Y and X’s right to maintain personal relations with their father [section 60CC(3)(e)]. Again, I point out four weeks is not a long period of time, when consideration is given to the strong and resilient ties the children have with their father.
It is implicit, in the father’s case, that he has found the capacity of the mother, to provide for Y and X’s needs, including their emotional and intellectual needs, to be wanting [section 60CC(3)(f)].
In my assessment, albeit a limited one, the parties are quite different in terms of their personalities and where their emphases fall in respect of the discharge of the responsibilities incumbent in being a parent.
Clearly, the father is a highly protective parent, who is somewhat dogmatic in his approach to parenting. The mother is likely to be more laissez-faire. I do not however assess her to be a lax or neglectful parent. Rather, she is different, in her approach to parenting, to Mr Stinson.
In this context, I do not assess Ms Ingle to have a compromised parental capacity. Rather, she is likely to fall short of what Mr Stinson assesses to be the optimal level of parenting. Mr Stinson sets himself high standards, which he expects others to meet. This is particularly so in respect of issues relating to Y’s education.
Y’s education is central to his long term well-being. I accept, in general terms that, due to his dyslexia, he is a student at some level of educational disadvantage. However, a two week absence from school, at his age, is unlikely to represent a long term barrier to future educational success. In this regard I note that both Mr A and Ms B recognise the benefits of overseas travel, for a child of Y’s age.
If the trip proceeds, Y and X will be exposed to a different language, cuisine and culture in (country omitted). The historical content implicit in such things is necessarily very different to the social setting in which the children normally live, in suburban Adelaide and can be summed up by the aphorism “travel broadens the mind”.
In assessing a child’s best interest, I am directed to consider the particular background of the child concerned, which is taken to include the lifestyle, culture and traditions and any relevant characteristic of both the child and his/her parents [section 60CC(3)(g)].
The guiding hand of the legislature can be seen in section 60B, where the objects and principles of Part VII are set out. These principles (set out in full above) emphasise the entitlement of children to spend time with their relatives, particularly grandparents and speak of their right to enjoy their cultural background with other relatives who share that culture with them.
Cultural background is important to children. It provides them with a sense of identity. Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context. In addition, overseas travel, particularly to meet family, can be a rich experience for children, the memory of which can last a life time.
It is a strong theme of the mother’s case that it will be beneficial for Y and X to have the opportunity to interact with members of their maternal family, in the cultural milieu applicable to them, and from which they themselves derive, namely (country omitted). I accept that this is so.
In my assessment, the proposed trip is not of an excessive length, when the children’s ages are considered. As such, in my view, the trip is not likely to jeopardise unduly Y’s educational progress. In addition and importantly, I accept that there are likely to be some educational benefits, for the children, arising from the travel.
I accept that these benefits are difficult to quantify in concrete terms. However, in my view, just the experience of such things as travelling to a different country; eating different foods; and hearing a different language spoken; is likely to broaden the children’s minds. So, it will give them a different perspective on life.
As I have indicated, the Family Law Act emphasises the centrality of all significant relatives, to children, as they grow and develop. The mother’s proposal envisages the children staying with her Aunt and engaging with other maternal relatives. This will give Y and X an opportunity to understand where they fit in in their wider (country omitted) family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles and aunts, cousins and the like.[11]
[11] See Bright v Bright (1995) FLC 92-570 at 81,658
I acknowledge the importance of Y’s religious instruction. This is also likely to be important to Y’s sense of identity as he grows to maturity. However, the trip itself will not prevent Y taking his first communion, although it may mean that he will not take it with his peers.
This is potentially a deficit for Y. However, it must be considered within the wider context of the case. Given the polarised nature of the parties’ respective positions and their inability to reach any form of compromise, it is impossible for the court to fashion an outcome, which will satisfy the hopes and desires of each of the parents concerned in this case.
There must be a balance struck. I do not think that it is inimical to Y’s best interests, if his first communion is delayed by some weeks, in order to allow him to take the trip proposed by Ms Ingle with her and X.
Bearing all these considerations in mind, I have come to the conclusion that the benefits of the proposed trip for the children outweigh the potential risks and dangers. This is particularly so given that the trip is comparatively short in duration, when consideration is given to the part of the school year, which it will occupy.

In my view, the broadening of horizons for the children, which the proposed holiday envisages outweighs any possible detriments to the children arising from them missing two weeks of school. I am concerned that the father’s opposition largely stems from issues to do with the parents’ compromised relationship with one another.
In these circumstances, I do not propose to make the additional orders, which Mr Stinson seeks and which appear to me to have been opportunistically raised.
In all these circumstances, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixty five (165) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 15 August 2014

[2014] FCCA 1826

15 August 2014

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