LEE & ZHU
[2010] FMCAfam 622
•17 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE & ZHU | [2010] FMCAfam 622 |
| FAMILY LAW – Children – Airport Watch List – application to take child out of Australia for five weeks – child aged almost nine years – whether it is in the best interest of the child to be away from school for three weeks for the purpose of a holiday. |
| Family Law Act 1975, ss.11C, 11F, 60CA, 60CC |
| Applicant: | MS LEE |
| Respondent: | MR ZHU |
| File Number: | SYC 8479 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 June 2010 |
| Date of Last Submission: | 17 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2010 |
REPRESENTATION
| Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
The Application filed on 14 April 2010 to take the child [X] born [in] 2001 out of the Commonwealth of Australia between 20 June 2010 and 27 July 2010 is dismissed.
Whilst the Mother is out of Australia the child [X] is to live with the Respondent Father.
The child [X] is to continue to attend [S] School until further order.
The Respondent Father is to advise the Mother of his current residential address within 24 hours.
IT IS NOTED that publication of this judgment under the pseudonym Lee & Zhu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 8479 of 2007
| MS LEE |
Applicant
And
| MR ZHU |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Mother of a girl who is nearly nine years of age to remove her name from the Airport Watch List maintained by the Australian Federal Police for the purposes of leaving Australia with the Mother between 20th June and 27th July 2010. The Mother wishes to take the child on a holiday, first to China, where the Mother’s other child resides and attends school, and then to the United States of America.
The Father opposes the application on the basis that the Mother’s proposal will take the child out of school for a period of three weeks. He indicated that he would consent to the child being taken out of the country for the school holiday period:
I have given my permission to the applicant Ms Lee to take [X] to overseas during the coming school holiday which starts from 3 July 2010 to 18 July 2010.
Background
The parties were married [in] 1992 in Sydney and separated on 7th February 2006. On 8th May 2008 the Court pronounced a Divorce order.
There are two children of the marriage, [Y], who was born [in] 1995, and [X], who was born [in] 2001. [Y] resides with extended family in China and attends school there. [X], the subject child, lives with her mother in Sydney.
There were previous proceedings between the parties, which were heard at the Parramatta Registry of this Court. On 29th October 2008 Donald FM made orders by consent that the parties were to have equal share of care of the child [X] and were restrained from removing her from the Commonwealth of Australia without the written consent of the other party.
There is also an Apprehended Violence Order in force against the Father, made by the Hornsby Local Court on 17th November 2008, naming the Mother as the protected person. The order is in force for a period of two years. The order has no direct relevance to the matter before the Court except to show that the relationship between the parties is not a good one.
There were emails between the parties from early March 2010 about the Mother’s wish to travel to the United States for a holiday with [X] and other family members. The Father objected to the child being out of school for two or three weeks and offered to look after her whilst the Mother was overseas.
The parties did not agree and on 14th April 2010 the Mother filed an application for orders that:
a)The child’s name be removed from the Airport Watch List from 20th June to 27th July 2010; and
b)An order that the child be permitted to travel between those dates.
The Father filed a response opposing those orders but giving permission for the Applicant to take the child out of Australia during the school holidays, from 3rd July to 18th July 2010.
On 10th May 2010 an order was made under s.11F of the Family Law Act that the parties attend a child dispute conference with a Family Consultant. As provided by s.11C of the Act, the conference was to be reportable.
The parties attended a conference on 25th May 2010. The Family Consultant’s memorandum to the Court noted that the parties had not reached an agreement and said, rather censoriously:
The issue before the Court is about whether or not the child is going to be able to miss three weeks of school in order to attend a holiday overseas. This is not the first time that the Court has had to intervene in relation to the amount of time that [X] is able to take off school to travel overseas. She travels overseas with her mother every year and misses some school every year. Mr Zhu is opposed to this continuing in the future.
The Family Consultant noted that the Father had agreed that the child could miss one week of school and that the Mother’s proposal would mean that the child would miss three weeks and one day of school. The Family Consultant also noted that:
a)If the child was not allowed to participate in the holiday, she could stay with the Father who would ensure that she continued to attend her school and provide the Mother with his home address (which he has been reluctant to do in the past); and
b)The Mother proposed that if the child was only able to miss one week of school, she could stay with the Father from 20th June to 2nd July, and then travel to China as an unaccompanied minor. The Father did not agree to the child travelling unaccompanied.
Both parties agreed that a judicial decision was required and the application was listed for hearing on an urgent basis on 17th June 2010.
Submissions and Evidence
There was no challenge to the affidavit evidence of either party. The Mother’s affidavit sworn or affirmed[1] on 14th April 2010 showed that the Mother proposed that:
a)She and the child would travel to China on 20th June 2010 and stay with the child’s brother [Y] and his grandmother and aunt, with whom he lives;
b)[Y] is unable to leave China before 8th July, as he has “a high school test” on that date;
c)The family would then travel to America between 9th July and 24th July 2010, which would include eight days aboard the “[omitted]” (a cruise ship) and seven days in New York.
d)They would fly to Hong Kong on 24th July and the Mother and the child would then fly to Australia on 27th July 2010.
[1] The Justice of the Peace before whom the document was signed neglected to indicate which procedure was followed.
The Mother repeated this evidence in her affidavit sworn or affirmed[2] on 5th May 2010. She claimed that:
The school holiday will start from 02/07/2010 to 19/07/2010, so, [X] will missing school 14 days, but [Mr Zhu] only agreed 3 days missing school, and the time he gave to us from 26/06/2010 to 18/07/2010 is not suitable for our itinerary.[3]
[2] The same Justice of the Peace witnessed this affidavit
[3] Affidavit of Ms Lee 5.5.2010 at paragraph 3b
The Mother’s Submissions
The Mother was not legally represented and made her submissions with the aid of an interpreter in the Cantonese language. She read her submission from written notes for more than an hour. In summary, the Mother submitted that:
a)The child had always been part of an extended family and it was in her best interests to spend time with members of her extended family;
b)The child’s brother [Y] lives in China; he is now 15 years of age;
c)She had spoken to the child’s school Principal who had said that missing school for three weeks was “not much”;
d)She had spoken to the Principal about schoolwork that the child could take away with her to help her make up the missed school time;
e)The children did have homework to do for the last week of term and the next week of the subsequent term so the child was really only missing one week of school;
f)The child had been coughing lately which her doctor said was because of the colder weather, so it would be better for the child’s health to travel to a warmer climate;
g)The child does not have a good relationship with the Father and would be fearful if she had to stay at the Father’s house;
h)The child was looking forward to travelling to America;
i)If the child would not be able to travel to America it would affect her psychologically and would affect her future life;
j)If the child were not happy her health would be affected; and
k)The Mother had planned the holiday and bought the tickets.
The Father’s Submissions
The Father stated that he sees the child three times a week on the basis of the orders for shared care made on 29th October 2008. She has her own room in his house equipped with a variety of electronic equipment for her use. He would be happy for her to stay with him whilst the Mother is away and would arrange to take her to and from school at [S] School every day. He had not disclosed the full address of his home to the Mother, only the suburb, and she had not asked for it over the five years when the child had been visiting his home regularly.
Conclusions
The Court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order for a child (s.60CA).
It is of benefit to the child to have a meaningful relationship with both parents (s.60CC(2)(a)). The evidence appears that she does have a meaningful relationship with both parents, although her relationship with her father may be strained by his objection to her leaving Australia for a holiday for five weeks and thereby missing school.
There is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b)). There is no evidence of abuse. Whilst there is an apprehended violence order in force it is not relevant to the proposal to take the child on a holiday overseas. The child is not being neglected, but I am not satisfied that it is in her best interests to miss three weeks of school for the purpose of a holiday.
It should be made quite clear that I do not for a moment accept the Mother’s proposition that if the child is unable to have a holiday in America it will affect her physical or psychological health and blight her future life. It is a preposterous submission and quite absurd.
I do not accept the Mother’s assertion, raised for the first time at the hearing today, that the child has developed a cough and the Mother has received medical advice that the child needs to travel to a warmer climate for the benefit of her health. There is no evidence to support that contention at all and it smacks of recent invention, as recently as this afternoon.
There is no evidence to support the Mother’s assertion that she has obtained advice from the school Principal that missing three weeks from school will have no effect on the child, or so slight an effect that it can easily be overcome.
The Mother submitted that the child would miss school for fourteen days. It is a matter of public knowledge that the school term finishes on Friday 2nd July. The new term commences on Monday 19th July, although that is most probably a “pupil-free” day. The Mother’s proposal would have the child leaving on 20th June and returning on 27th July 2010. By my calculations, the child would miss 17 school days, but, taking into account that Monday 19th July is likely to be a “pupil-free” day at the school, the more realistic figure would be a loss of 16 actual school days.
Without evidence to show that this deficit could be overcome, I am not satisfied that the time off school is in the best interests of the child, no matter how enjoyable a week aboard a cruise ship or a week in New York might be.
It is noteworthy that the Mother has shown no necessity for the child to travel to China on 20th June. The timing of the trip to America is dependent on the child [Y] being able to get away after his high school examination, which takes place on 8th July. Why, then, does [X] have to miss out on the last two weeks of term, from Monday 21st June to Friday 2nd July? The Mother has not explained this at all.
The Mother appears to have planned this holiday without the slightest consideration of the effect on the child of taking her out of school. She was aware that the Father would object but went ahead and made the bookings anyway. What she has now done is present the Court with a fait accompli, saying that the trip has been planned and booked, the departure date is imminent, and therefore, it is assumed, the Court will be obliged to allow the child to be taken out of Australia for that time.
The Court will not be swayed by this sort of argument. It was open to the Mother to come up with an arrangement which would have taken less time out of school, but she chose not to do so.
The Father would have consented to the child being taken out of school for a week, but the Mother chose not to change her plans. The Father’s reluctance to allow a child not yet nine years of age to travel unaccompanied on an international flight is not unreasonable, in my view.
It is not up to this Court to come up with a compromise arrangement. The Mother chose to proceed with her application to the Court and has been unsuccessful. The child is not to be taken out of Australia for a holiday, no matter how disappointed she may be, because I am satisfied that it is not in her best interest to do so.
The application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 18 June 2010
0
0
1