Norfolk and Mervin

[2011] FamCA 761

FAMILY COURT OF AUSTRALIA

NORFOLK & MERVIN [2011] FamCA 761

FAMILY LAW – CHILDREN – Proposed holiday overseas – whether an order should be made permitting the subject children to be taken overseas on vacation

Family Law Act 1975 (Cth)

APPLICANT: Ms Norfolk

RESPONDENT: Mr Mervin

INDEPENDENT CHILDREN’S LAWYER: Mr Damien Carter of Carter Farquar Lawyers

FILE NUMBER: BRC 7348 of 2007

DATE DELIVERED: 19 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 September 2011

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Mr R Hamwood

SOLICITOR FOR THE RESPONDENT: Biggs Fitzgerald Pike

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Damien Carter of Carter Farquar Lawyers

Orders

1. It is ordered that the Mother’s application to remove the children from Australia for the purposes of a holiday to City D, Country E, from 3 November 2011 until 9 November 2011 is dismissed.

2. It is ordered that pursuant to s 65L(1)(b) of the Family Law Act 1975 (Cth), a Family Consultant be present to explain to B, born … 1999, and C, born … 2001, the reasons why permission has been refused for the two children to travel to City D, Country E.

3. It is ordered until further order that Ms Norfolk, born … 1964, and her servants and agents are restrained from taking or sending or attempting to take or send the children B (a male), born …, and C (a male), born …, from Australia.

4. It is ordered until further order that the Marshal and all officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these orders.

5. It is ordered until further order that the Court requests that until further order the Australian Federal Police place the name(s) of the children, B (a male), born … 1999, and C (a male), born … 2001, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.

6. It is ordered until further order that immediately upon service with this Order, Ms Norfolk must deliver up the passports of B, born … 1999, and C, born … 2001, to Biggs Fitzgerald Pike Solicitors to be held pending further Order of this Honourable Court or the written agreement of the parties.

7. It is ordered until further order that each party’s costs of and incidental to the respective applications in a case be reserved to the trial judge.

IT IS NOTED that publication of this judgment under the pseudonym  Norfolk & Mervin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7348 of 2007

Ms Norfolk

Applicant

And

Mr Mervin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, there are substantive parenting proceedings between the parties in which the Mother seeks, by application filed 21 April 2011, to change Orders made in the Federal Magistrates Court some time ago, namely on 20 May 2008, and essentially seeks an Order in the substantive proceedings that the children’s time with the Father be supervised. The substantive proceedings are subject to directions in the case management system in the Court and, from a review of the file, it seems there will be further mention of the substantive proceedings in December of this year.

2. Having regard to the substance of the matters raised in the substantive proceedings, there is an Independent Children’s Lawyer appointed, and there has been recently filed an affidavit of a Family Consultant, Ms F, who prepared a report dated 30 August 2011 following interviews that were carried out by Ms F with the parties and relevant other persons during August 2011.

3. By application in a case filed 22 August 2011, the Mother seeks the Court’s permission to take the children the subject of the substantive proceedings, namely B, born in 1999, and C, born in 2001, on an overseas holiday to Country E for a seven night trip starting from 2 November 2011. The Father opposes that permission and the Independent Children’s Lawyer does not support the Mother’s application.

4. In essence, the basis for the Mother’s application, she says, is that it would allow her son, C, who I mention was born in 2001 and is thus approaching eleven years of age, to have the experience of a foreign culture and in particular, to interact with animals in City D, Country E, namely elephants, because the Mother, who is a special needs teacher, has formed the view that such interactions assist children with C’s particular problems, which I will mention further below.

5. The Mother has experience of taking her oldest son, G, who is now sixteen years of age as I understand it, on a trip to City D last year. Apparently the ability to interact with elephants by riding them, feeding them and interacting with baby elephants is particularly significant as a learning experience for children, it is said, with both G’s problems and as regards the subject child, C.

6. C has been diagnosed as having Trisomy 21 Down Syndrome, and the material before me sets out the translation of those problems in terms of some difficulties with C’s behaviour. I will not attempt to address all of the problems for C, but they include that he has minimal communication skills, he demonstrates from time to time disturbed behaviours, he has on a psychological assessment, high levels of anger and anxiety and some symptoms of post-traumatic stress disorder. The constellation of symptoms in C means that, from time to time, he can act in an impulsive way, in terms of what I will describe as running away, or at least not maintaining himself under the authority of any controlling figure; he has, and Ms F, in her Family Report, has addressed issues concerning C as to the limitations for him so far as his self-care, self-protection, and she notes in her report that the behaviours in C have been of an escalating nature.

7. Understandably, the Mother, in booking the trip in November in the course of the school term, sought to obtain the best price possible for the trip. She is on a carer’s pension, it is a short trip, and by taking the trip in November, she was able to secure fares at half the normal price. The Mother submits to me, based on information from the boys’ respective schools, that there is no real difficulty from an educational point of view, with the boys taking the trip at the time the Mother seeks to take it. With respect to C, there is evidence from his school that it may be a positive learning experience for C to take the trip, and with respect to B, there is evidence from his school that whilst he will be subject to assessments in the scheduled period of the trip, those assessments can be taken at another time so that that difficulty is not insurmountable.

8. In determining the issue before me, I must have regard to the best interests of both C and B, and in determining those best interests, have regard to the considerations set out in s 60CC of the Family Law Act 1975 (Cth). I am also mindful of the Full Court decision in Goode & Goode (2006) 206 FLR 212 where, at paragraph [82], is set out the considerations and the order of considerations that the Court should have in mind when determining an interim application such as the present.

9. In the abstract, a trip of such a short duration for these boys might be seen to be in their best interests. There might well be positive reasons for them to enjoy that experience. However, this application comes at a time when it is in the context of the litigation that I have described, and against the background that Ms F undertook careful interviews and assessments of the relevant parties and provided a detailed report. Ms F was apparently not informed by the Mother of her proposal for the trip for the boys, and despite the efforts of the Independent Children’s Lawyer in the recent past, the Court does not have the benefit of Ms F’s views one way or the other as to the benefits or otherwise of the proposed trip.

10. There is an issue between the parties as to whether or not the Father was informed of the trip. The Mother says that because the Father signed passports in 2009 for both boys, she didn’t appreciate that there was a particular need for permission, whilst the Father for his part says that he only learned of the proposed trip when he heard C speaking about it to his Mother at a changeover for contact. There is a high level of disputation between the parties, as evidenced by the file in these proceedings. As the Independent Children’s Lawyer points out, this application in a case comes somewhat late and, as far as I can see in the evidence before me, there is an absence of explanation as to why Ms F was not informed of the proposal with a view to her specifically commenting on it.

11. Whilst it would seem that the boys’ education is not a major concern, it is the case that the boys’ education was disrupted this year by what I understand to be the unilateral actions of the Mother in removing them from their respective schools and enrolling them in schools closer to her home, and in the event the boys were returned to their present schools. They had that disruption to their schooling and also, relevantly, the disruption in terms of the continuity of their relationship with their father, because between April and July 2011, as I understand it, they did not see him or did not see him much.

12. Whilst it may well be that the boys have been told about the forthcoming trip and that they may well be looking forward to it, and that is a factor I take into account; and whilst it may also be that the Mother is unable to obtain a refund of the money she has spent on the trip, those matters in and of themselves are not determinative if the overriding considerations I have to take into account are balanced the other way. In my view, the considerations are balanced the other way for a number of reasons. First, as I have earlier referred to, the Court does not have the benefit of a view of Ms F, who has undertaken a detailed report, and education is but one factor in terms of the children’s best interests. Whilst the Mother informs me from the Bar table that her older son G responded well to the trip to City D, and she expects C would do so as well, this would be something of an experiment if the trip were to occur, because the Mother will have for the first time both G, and C, and B, in her care in a foreign country, a foreign culture and a foreign language background.

13. The Mother informs me from the Bar table that whilst G has improved in terms of his behaviours, he is still, from time to time, prone to disturbed behaviours or difficult behaviours, and one can imagine that there would be potential problems for the children in terms of the Mother being in a foreign country (there is no evidence before me that the Mother speaks the language of that country) faced with the prospect of both G and C, perhaps at the same time, engaging in disturbed or difficult behaviours.

14. It seems to me that of particular importance is the feature that the Department of Foreign Affairs and Trade, which issues travel advisories, has issued a travel advisory, which is attached as Exhibit 4 to the Father’s affidavit, recommending against travel to Country E. That is a recommendation for adults as well as, obviously, children, and it seems to me that if in the end, whilst it might be said that there is a benefit ultimately to be had for C in travelling there, that is an issue that I think should be addressed at a trial at the conclusion of the resolution of all of the many issues between these parties, and when the Court is in a position to properly consider the interests of both C and B properly on evidence that has been tested, including evidence of an expert Family Report writer, and any relevant medical evidence.

15. Whilst it may well be that the boys may be disappointed about learning that the trip will not happen now, it seems to me that if that is undertaken in a sensitive and caring way, the boys might be properly informed that the trip may occur at a later time. With that in mind, what I propose to do is to include in my Orders an order pursuant to s 65L of the Family Law Act 1975 (Cth) which enables a Family Consultant to be engaged in informing the children about decisions of the Court. I therefore propose to make an Order, in dismissing the application, that I also make an Order under s 65L that would involve, hopefully Ms F, in an interview with both boys where she has the opportunity to inform the children in a sensitive and caring way as to the reasons that the Court has denied permission, at this stage, for the Mother to take them to City D. I stress that it should not be interpreted by anybody that this is a final decision for all time about the Mother’s inability to travel in the manner she wishes, but as I say, that should be considered by the Court at the stage of the final trial of the proceedings.

16. I therefore will make an Order dismissing the Mother’s application and I will make Orders in the usual terms as set out in the Father’s response in terms of the Airport Watch List and the like. In addition to those Orders, I will also make a s 65L Order as proposed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 September 2011.

Associate: 

Date:  22 September 2011