Marsh and Marsh (No 2)

FAMILY COURT OF AUSTRALIA

MARSH & MARSH (NO 2)

[2011] FamCA 441

FAMILY LAW - CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT:

Ms Marsh

RESPONDENT:

Mr Marsh

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3464

2009

DATE DELIVERED:

8 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

6 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

Orders

IT IS ORDERED PENDING FURTHER ORDER THAT:

Orders 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Orders dated 8 September 2010 continue.
Subject to Order 3, the mother be permitted to remove the child L born … October 1999 from Australia to New Zealand from 1 July 2011 to 5 October 2011.
Notwithstanding Order 2, the mother shall ensure that:
(a)L returns to Sydney by no later than 8.00 pm on 18 August 2011 for the purposes of attending the interview scheduled with the single expert, Dr Y, on 24 August 2011 and
(b)L spends time with the father from 8.00 pm on Thursday,

18 August 2011 until 9.00 am on Monday, 22 August 2011.
Each party attend the interview scheduled with Dr Y on 24 August 2011 and/or other dates as notified by Dr Y for the purpose of the preparation of his single expert’s report.
Each party do all acts and things necessary to ensure that L attends the interview scheduled with Dr Y on 24 August 2011 and/or other dates as notified by Dr Y for the purpose of the preparation of his single expert’s report.
Both parties share equally in the costs associated with the preparation of

Dr Y’s report and any costs associated with his attendance at Court for the purposes of cross-examination (including costs of any additional reading/preparation time).
In the event that a staff member of C Public School makes a written recommendation to both parties that L attend upon the school counsellor while he is in Australia, then each party shall do all acts and things necessary, including signing all necessary authorities, to facilitate such attendance, subject to any variation as a consequence of any recommendation by Dr Y.
The Independent Children’s Lawyer is granted leave to provide a sealed copy of these Orders to the Principal of C Public School.
The matter is listed for mention before me at 10.00 am on Thursday, 6 October 2011.
The costs of all parties are reserved.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Marsh and Marsh (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3464 of 2009

Ms Marsh

Applicant

And

Mr Marsh

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is an interim application in respect of a child to the parties of the marriage relating to L who is 11 years of age.
It is the second of such applications; the first having been dealt with by

Her Honour Justice Ainslie-Wallace on 8 September 2010.
At that time Her Honour ordered that the child have permission to travel to New Zealand and the United States for a significant period of time in order to pursue his passion of Sport 1 and to receive tuition in that undertaking from leading American coaches.
Her Honour made Orders at that time and it seems to the court largely based upon the fact that the issues in the matter had not then been investigated and determined and that the leave given to go reflected the path that had been mapped out by the parties of this marriage for this child for some time.
Similar leave is now sought for a further period by the mother which is in terms of the following Minute of Order:

1. Pending further Order:
1.1That the applicant wife, [Ms Marsh], be and hereby is permitted to remove the child, [L] born […] October 1999 (“L”) from the Commonwealth of Australia for the purposes of travel:
1.1.1to the United States of America from 8 June 2011 until 30 June 2011;
1.1.2to New Zealand from 1 July 2011 until 9 October 2011;
1.1.3overseas from 10 December 2011 to 22 April 2012;

1.2That the wife not later than 14 days before any departure pursuant to Order 1.1.2 and 1.1.3 above, notify the husband of the date of departure, providing him with an itinerary of travel which is to include arrival and departure dates to the various locations, details of the accommodation for [L] and a contact number for [L].
1.3That the wife not later than 28 days before departure pursuant to Order 1.1.2 and 1.1.3 above, provide the husband with a proposed range of dates in which he may spend time with [L] in accordance with Order 1.7 below.
1.4That the husband not later than 7 days after receipt of the notice pursuant to Order 1.3, inform the wife in writing as to whether he intends to spend time with [L] and on which of the nominated dates.
1.5That the wife use her best endeavours to ensure that the dates nominated by her pursuant to Order 1.3 do not fall within a period in which [L] has a major competition or event.
1.6It is a condition of time spent pursuant to Order 1.7 below that the husband ensure that the child is promptly delivered to all of his scheduled commitments for each day and to facilitate the same the wife will provide the husband a comprehensive list outlining the schedule of commitments, the starting and finishing time and the necessary equipment for those commitments (if it is anticipated that the husband will take that equipment for the child to the scheduled commitments).
1.7That while [L] is overseas pursuant to Order 2.1 (sic) the husband will spend time with him as follows:
1.7.1for a period of not less than 3 consecutive nights in each month that the child is away; and
1.7.2for such other periods whether overnight or not as can be agreed between the parties and when the husband is otherwise able to be present in that country.

1.8That the wife cause [L] to be returned to Australia on or before 20 August 2011 and thereafter [L] to spend time with the husband up to the commencement of the interviews with [Dr Y] scheduled to take place on 24 August 2011.

Since the making of Her Honour’s order arrangements had been made for the production of a report by a court expert, a Dr Y, and for that purpose the parties and the child are required to attend interviews on 24 August 2011 and may be required to attend interviews by the doctor after that date.
The husband opposes the leave being granted and points to a number of matters in support of his opposition. He says:
·L is eleven years old
·L should be in school
·L can follow his Sport 1 passion both in Australia and overseas during school holidays
·the wife has set upon a course to alienate the child from the husband
·the wife has elevated the child’s interest in Sport 1 from an interest and passion to her preparation of him as an adult professional Sport 1 participant and uses this to justify overseas travel
·the wife’s travel overseas keeps the husband and the child apart which feeds the wife’s alienation of the child from the husband
·L is at a critical age and if the wife is able to keep L and the husband apart any further, she may be successful in alienating him from the father
·the longer the wife and L are out of Australia the easier for her to affect the husband’s relationship with L
·L presents as an angry and disrespectful boy with an overbearing sense of entitlement to do and have what he pleases, but after time with the father this façade breaks away and he can enjoy himself but currently carries a burden of guilt for having done so
·L needs psychological support to be able to benefit fully from the relationship with his mother and the father.
Affidavits have been filed by the parties in these proceedings which indicate that this child has lived in a climate of dissent, conflict and hostility for a long period of time.
The issues in relation to the facts of this case are significant and hotly contested. They will only ultimately be determined upon a final hearing.
What is beyond dispute is that this child is a very talented Sport 1 participant and has achieved a high proficiency in that sport.
The child has undertaken training from world-ranked trainers in a number of disciplines within the sport.
It seems to the court that the parties did, during the marriage, agree that the child should, as it were, “follow the [Sport 1 season]” somewhat in the pursuit of his chosen sport.
The child has had the benefit of education at a State primary school in Sydney during the times he is in Australia and has had the benefit of distance education whilst he has been overseas. On the overseas trips, tutors have been employed to assist him particularly in mathematics and English.
Exhibit 1, a report from the C Public School, raises a number of concerns in relation to L’s performance at school and it seems that he has had some educational difficulties. The court is informed by the Independent Children’s Lawyer that enquiries made of the school indicate that a special support class in which the child had been placed is no longer necessary for him.
It does appear that the child is bright and is able to learn but that from time to time gaps appear in his learning.
He is apparently able to make up those deficiencies relatively quickly it seems.
It seems to the court that coupled with the availability of distance education for the child, that at least until Dr Y produces the report, probably not much harm would be done to the child by a continuation of his pursuit of the Sport 1 season in New Zealand.
It may well be that the report of Dr Y resolves some of the issues that are outstanding or cast new light on the dispute and enables the court to progress in the interim determination of what is best in the interests of this child.
Certainly if the statements contained in the affidavits are demonstrated to be true, this child is surrounded by a sea of problems: the conflict between the parents; the attitudes of the parents to each other; their inability to communicate in polite language; and his own apparent belief that he may have what he wants.
He has made statements that it is alleged that he hates his father.
All those allegations are indeed concerning and it is in the interests of this child that they be resolved as quickly as possible.
The report of Dr Y will be an important insight into this problem and obviously that report will be highly relevant to the final determination of this matter.
If the child’s behaviour is as alleged by the husband, it certainly is unacceptable behaviour for a child of this age and may betoken a problem with current parenting arrangements.
In the circumstances, the court is asked whether it would be in the interests of the child to forbid him to go overseas and spend some time with the father from whom the father alleges the mother is alienating him.
The affidavit evidence leads the court to conclude that there is a real possibility that if that decision were now made the relationship with the father would deteriorate from the low point it appears presently to be at.
It may however be that such a decision in due course is necessary to be made in the interests of this child if the only other alternative is that he has or will develop no relationship with the father of value.
The Independent Children’s Lawyer seeks orders in the following terms:
Pending further order:
1.That Orders 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Orders dated
8 September, 2010 continue.
2.That, subject to Order 3, the mother be permitted to remove the child, [L], born […] October 1999, from Australia as follows:
(a)To New Zealand from 1 July 2011 to 9 October 2011.
(b)To the USA, Canada, and Europe from 10 December 2011 to 29 January 2012.
3. That notwithstanding Order 2, the mother shall ensure that:
(a)[L] returns to Sydney by no later than 8 pm on
18 August 2011 for the purposes of attending the interview scheduled with the single expert, [Dr Y], on 24 August 2011 and
(b)[L] spends time with the father from 8 pm on Thursday 18 August 2011 until the 9 am on Monday
22 August 2011.
4.That each party attend the interview scheduled with [Dr Y] on 24 August 2011 and/or other dates as notified by [Dr Y] for the purpose of the preparation of his single expert’s report.
5.That each party do all acts and things necessary to ensure that [L] attends the interview scheduled with [Dr Y] on 24 August 2011 and/or other dates as notified by [Dr Y] for the purpose of the preparation of his single expert’s report.
6.That both parties share equally in the costs associated with the preparation of [Dr Y’s] report and any costs associated with his attendance at Court for the purposes of cross-examination (including costs of any additional reading/preparation time).
7.That in the event that a staff member of [C] Public School makes a written recommendation to both parties that [L] attend upon the school counsellor while he is in Australia, then each party shall do all acts and things necessary, including signing all necessary authorities, to facilitate such attendance, subject to any variation as a consequence of any recommendation by [Dr Y].
8.That the Independent Children’s Lawyer have leave to provide a sealed copy of these Orders to the Principal of [C] Public School.

This matter has now been set down for hearing in February 2012.
The Independent Children’s Lawyer argues that the decision of the court whether the child continues to travel to pursue his profession as a Sport 1 participant is a long term decision and the Court should take the view that on an interim basis there should be little change to the lifestyle he has known. The Court agrees with this submission.
It is clear that the pre-separation lifestyle for him that was agreed to by his parents was as to travel as set out above.
It is submitted by the Independent Children’s Lawyer that if the child were prohibited from travelling this would cause him considerable distress and such an order should not be made as an order on an interim basis until all the issues are determined. The Court agrees.
In the Independent Children’s Lawyer’s view there is insufficient detriment to the learning of this child to demonstrate that the current lifestyle of the child ought be abandoned. The Court, given the nature of the order made and its duration agrees.
The Independent Children’s Lawyer submits that the child does have in any event the benefit of the distance education arrangements with tutors to have one-on-one teaching.
The Independent Children’s Lawyer agrees that the impact of travelling on the father’s relationship with the child is significant and the behaviour of the child as recounted by the father is clearly unacceptable. The court is inclined to agree with this submission.
However, further damage can be caused with the relationship of the child with the father and it is not appropriate that until some help can be got for this family that the situation should be made worse.
It is said that he already has the perception that the father is not supportive of his aspirations. That does not appear to be so. The father talked of the possibility of the child having his travel in Australia to Sport 1 available here and indeed made proposals for the child to go to participate in Sport 1 each week.
Still the child seems to have a perception that the father is not supportive and it is at this stage the child’s perceptions rather than the realities that are important.
There is notwithstanding the problems of the relationship between the child and the father evidence from the father that after he spent some time with the child his façade of aggression falls away and the relationship is one in which it is enjoyed by both of them.
It is important to build on that positive aspect of the relationship and to bring about a situation where the child would perceive that the father had stopped him participating in Sport 1 in the way in which he wishes to would be detrimental to that process.
As to the suggestion that the child could be coached in Australia, the reality of that is that the coach who has coached him thus far would not be available and there has been some considerable investment of both time and money in that coach’s coaching.
It is suggested that the coaches available at Australian Town 1 are not the same quality as that available elsewhere. It is suggested that the facilities available at Australian Town 1 are not up to the standard required and that the ability to practise Sport 1 is uncertain.
These deficits do not exist in either the United States or New Zealand it is said.
As to the proposal of the mother that the child forthwith go to the United States, it is said by the Independent Children’s Lawyer that that was to attend a Sport 1 camp which was somewhat a bonus for the child but not necessary in his pursuit of his achievement in Sport 1.
It seems that if the child went to New Zealand in July he could return for the interview with Dr Y and spend some time with the father prior to that interview taking place.
In addition, the child would have an advantage in the continuity in coaching and provision of training facilities.
The court will therefore make an order but effective to 5 October 2011 permitting the child to go to New Zealand and will list the matter for further mention on 6 October 2011 wherein the report of Dr Y and the wife’s application for overseas travel for the period in December and January might be considered.
Otherwise the court proposes to make orders in accordance with the Minute of Proposed Order put forward by the Independent Children’s Lawyer.
It is noted that the wife’s counsel has objected to the provision of Order 7 unless it is provided that the school counsellor is other than the counsellor previously engaged by the school because of L’s negative reaction to that counsellor. It is not intended to impose any such condition. It is not intended to put any limitation on whom the child is directed by the school to consult in the fulfilment of the school’s responsibility to the child.
The costs of all parties are reserved.
I therefore make the orders as set forth above.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 8 June 2011.

Associate:

Date: 8 June 2011

[2011] FamCA 441

8 June 2011

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Injunction

Expert Evidence

Remedies

Procedural Fairness