Roberts and Pedrana and Ors

[2012] FamCA 481

FAMILY COURT OF AUSTRALIA

ROBERTS & PEDRANA AND ORS [2012] FamCA 481

FAMILY LAW – CHILDREN - Interim orders after six day contested parenting dispute - International travel – Schooling - Parental responsibility issue - Wife should make decision because no prospect of consultation or agreement.

Family Law Act 1975 (Cth)

Gin and Hing [2010] FamCA 617
Line and Line (1997) FLC 92-729

APPLICANT: Ms Roberts

RESPONDENT: Mr N Pedrana

INTERVENOR: Mr V Pedrana & Ms C Pedrana

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1231 of 2011

DATE DELIVERED: 19 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12, 13, 14, 15, 18 & 19 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson

SOLICITOR FOR THE APPLICANT: Lilley Dawson

THE RESPONDENT: In Person

COUNSEL FOR THE INTERVENOR: Mr Edmunds

SOLICITOR FOR THE INTERVENOR: Westminster Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That all outstanding applications are adjourned part-heard for final hearing at 10.00am on 22 October 2012 as a two day matter.

2. That until further order, the wife have sole parental responsibility for decisions concerning the education of the child M.

3. That the child M born … August 2009 is permitted to travel internationally.

4. That paragraphs 1, 4 and 5 of the orders made on 2 March 2011 are forthwith discharged.

5. That the Court forthwith advise the Australian Federal Police of the discharge of the Airport Watch order and the injunction relating to travel of the said child.

6. That pursuant to s.65DA(2) and s.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.

7. That the Registrar return to the wife the passport of the said child forthwith.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roberts & Pedrana and Ors 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 MELBOURNE

FILE NUMBER: MLC 1231  of 2011

Ms Roberts

Applicant

And

Mr N Pedrana

Respondent

And

Mr V Pedrana & Ms C Pedrana
2nd and 3^rd Respondents

Iedependent Children’s Lawyer

REASONS FOR JUDGMENT

1. On the conclusion of the sixth day of the parenting dispute and the closure of all evidence, the wife made an oral application for two orders.  They were:

   (a)that she be permitted to make the decision about the enrolment and attendance at a kindergarten for M (“the child”) born in August 2009; and

   (b)that the child be permitted to travel internationally and specifically, to attend with the wife upon a holiday in Malaysia.

2. Both of these issues had been raised during the trial and the oral application had been foreshadowed.  The husband, who represented himself throughout the proceedings, opposed both orders.  His opposition may be encapsulated in the following statements:

   (a)in respect of the kindergarten, he would attend in the days following the hearing to “check out” the wife’s proposal and as such, until he had done so, no orders should be made; and

   (b)he strongly opposed the lifting of an existing injunctive order which precluded the wife travelling internationally with the child.  He opposed her going specifically to Malaysia.

3. At 6.00pm on 19 June 2012, I made orders granting the wife’s application in respect of both matters and indicated that I would give reasons at a later time.  These are those reasons.

4. Pursuant to s 69ZR of the Family Law Act 1975 (Cth) (“the Act”), the Court is empowered to make such finding of facts as it considers necessary or orders as may so arise, that will assist in the determination of a dispute between the parties.

5. It is important to understand that at the commencement of these proceedings, there was also an unresolved property dispute between the husband and the wife which also included the husband’s parents.  Very shortly prior to the commencement of the trial, the husband filed a bankruptcy petition and the trustee of his estate requested that the property proceedings be adjourned to enable them to make relevant inquiries.  For that reason, I bifurcated the trial and indicated that I would deal with the parenting issue.  It will be noted that the husband’s parents also had an extant application for parenting orders in their own right.

6. The parenting proceedings were contested over six consecutive days.  As I have indicated, at the conclusion of those days, these applications which had been foreshadowed were made.  Accordingly, I have heard all of the evidence of the parties.  Each party produced their respective witnesses and to the extent that their evidence was admissible by reference to relevance, that evidence was tested vigorously.  Although I am not in a position at this stage to make findings other than in respect of the discrete issues to which I have referred above, the only remaining issue to conclude the parenting matter is to hear submissions from all parties as to what orders should be made. 

7. It must also be said that the underlying argument in this case has been about the question of an unacceptable risk of harm to the child during his time with his father.  If there is no such risk, the case is straightforward.  The husband’s position is that he should share time with the child with the wife.  The wife’s position is that she has been the person primarily responsible for the care of the child and the husband’s time should be limited.  It is not appropriate at this stage that I make any determination of those issues save for the ones that are currently pressing.

8. The child will soon turn three years of age.  It is the wife’s proposal that he attend a non-traditional education school or kindergarten.  Through her solicitors, she requested an indication as to the husband’s view about the child’s attendance.  The husband’s view was that he agreed to the wife’s position but the issue should wait until the conclusion of the trial because he wanted to check out the non-traditional education school.  He thought he might very well agree that that was appropriate for the child.  The dilemma is that the parties have no trust in one another and their relationship is unlikely to change in the future.  The father’s proposal was that discussions about the child’s future could be arranged by email including the prospect of a mediation where they would sit around and endeavour to resolve problems.  On any view of the facts that I have heard, that process would be slow, cumbersome and potentially frustrating for both parties.  The wife was opposed to having anything to do with the husband and there are no mutual acquaintances.

9. It could not be in the best interests of the child that he lives in a state of flux in circumstances where the husband’s focus is on a negotiation which will not happen.

10. In relation to the Malaysia trip, the wife has repartnered.  She is currently pregnant to her partner.  Both the wife and her partner are healthcare discipline B professionals.  It was the wife’s position that she wanted to have a holiday in Malaysia and as I understand the evidence, she wishes to go reasonably soon.  When these proceedings began in the Federal Magistrates Court, orders were made placing the child on the Watch List and precluding both parents from taking him outside of the country.

11. The wife’s case in relation to the overseas travel was simply that she wanted to have a holiday and she would have the presence of her partner.  The husband’s position vacillated somewhat during the hearing but in essence, there were DFAT warnings about Malaysia, he had concerns about the health risks to the child in going to Malaysia, the wife was carrying a child and (presumably if born) would be placing its health at risk.  In addition, the new partner had family in Malaysia so that there was a drawcard for him to remain there.  The husband further asserted that there was a desperate shortage of healthcare discipline B jobs in Malaysia making the retention of the child in that country attractive.  Finally, he said there was the risk that the wife’s assets might be under attack from the bankruptcy trustee because she had somehow benefitted from the husband’s business operations during the marriage and those assets might be the subject of a clawback arrangement and if that was possible, it would be an incentive for the wife not to return to Australia.

12. The Independent Children’s Lawyer supported the wife’s position without qualification.

13. In relation to the parental responsibility issue, I will ultimately make findings that there is no prospect that these parties can negotiate any arrangement about the child.  He is not yet three years of age and embroiled in a dispute about which kindergarten he attends.  At this stage and in the immediate future until the final orders, the child will be living with his mother on a substantial time basis and the husband’s time with the child will be restricted to a limited amount of time under supervision at C Contact Centre.  That restriction was imposed by court order as long ago as the commencement of the proceedings and it has been fraught with difficulty ever since.  The question of whether that restriction is justified is a matter that I will deal with in the final reasons for judgment.  Suffice to say, there is no current basis for me to discharge existing orders relating to the husband’s time with the child.

14. Nothing I heard during the hearing indicated to me that the wife was anything other than a competent decision maker and was very much child focussed.  The husband’s equivocation as I have mentioned above caused me some concern about the prospect of ongoing disputes.  He had been made aware well before the hearing of the wife’s proposal about the kindergarten and his unresponsive attitude even as late as final submissions about these orders left me perplexed about the prospect of any decision being made by the parties together. 

15. Part VII of the Act provides that each of the parents of a child under the age of 18 years has parental responsibility for that child. Parental responsibility about decisions means all of the duties, powers and authority which by law, parents have in relation to a child. It therefore means that decisions about kindergarten and international travel normally fall into the province of parental responsibility.

16. Parental responsibility lies with the parties unless the Court orders otherwise.  In this case, I have no choice but to make decisions because the parties cannot do so. 

17. Section 64B(2) of the Act provides that a parenting order may deal with any aspect of parental responsibility not otherwise covered by that section. It is important in an international travel case that the Court consider the role of both parents in the lives of their children. That focuses the attention on whether or not there is a risk as indicated by the husband that the child would be removed from Australia permanently and therefore from his father’s life.

18. Fundamental to my decision is that s 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration.  As such, in considering the question of the decision-making process about kindergarten and also the international travel, the Court’s attention must focus on the child’s best interests as the paramount consideration. 

19. Section 60CC provides that a court must consider a number of matters in determining what is in the child’s best interests.  Those matters are more appropriately dealt with in the final reasons for judgment in the parenting dispute. 

20. This case is about the husband’s concern that there is a risk that the child will not be returned to Australia.  There is no evidence that Malaysia is a risky place in terms of health or political unrest.  The husband asserts that it has DFAT warnings.  They were not produced.  No-one else indicated any such concern.  There was certainly no evidence of any health risk either in respect of the child or for that matter the wife.  The gratuitous comment about the husband being concerned about the wife’s well-being as a pregnant woman has no merit.

21. In relation to the question of the risk of the wife’s failure to return to Australia with the child, the husband pointed to the wife’s failure to comply with orders for the presentation of the child’s passport.  That order which was made in 2011, seemed to arise out of a concern for the husband’s behaviour rather than the wife’s.  Notwithstanding what the husband complained about, there is no evidence before me of attempts to enforce the order nor is there any indication of regular and unresponsive answers to require the wife to complain.  There is certainly an indication that the husband was complaining to the Independent Children’s Lawyer about the wife’s non-compliance.  It would appear that the wife did comply.  That would not be a basis for me to exclude international travel. 

22. In Line and Line (1997) FLC 92-729, the factors relevant for consideration in an international travel case were said to be:

    (a)the existence or otherwise of continuing ties between the departing parent and Australia;

    (b)the existence and strength of possible motives not to return;

    (c)the existence and strength of possible motives to remain in the other nominated country; and

    (d)whether the country of travel is a signatory to the Hague Convention.

23. In respect to the first of those four considerations, the only connection asserted by the husband with Malaysia has something to do with the wife’s partner’s cultural background.  Mr D, the partner, was not cross-examined about anything that would suggest he is intending to live anywhere but in Australia.  He has tertiary qualifications and business activities here.  Equally importantly, the wife’s background, family, home and employment are all here in Australia.  I find there is a very strong continuing tie between the wife and Australia.  I am not entirely clear at this stage about her property entitlements but it is obvious that she has employment and importantly her family is in Australia.

24. Of the second of the four considerations, nothing I have heard would suggest any motive for the wife fleeing the jurisdiction.  The husband thought that it might have something to do with the wife running away from a bankruptcy situation but that does not make sense because any property that the wife had that might be subject to the bankruptcy could be clawed back without her presence and in any event, at this stage, only the husband is bankrupt.  There is not sufficient evidence before me at this stage to indicate that the wife has any reason to flee the jurisdiction to avoid the bankruptcy problems.

25. To the extent that it might be considered a basis to leave Australia because of the level of conflict between the parents over the child, all of the evidence points to the fact that in every situation where a supervision arrangement has broken down, the wife has agreed to an alternate arrangement including arrangements that were not included in any court orders.  Again, there does not seem to me to be any basis upon which I could find that the wife would be fleeing the jurisdiction.

26. The third of the four considerations relates to the wife’s possible motives for remaining in the nominated country.  The husband had every opportunity to cross-examine Mr D and did not put to him that he had ambitions to leave the country to protect the wife.  On that basis, I do not propose to consider the matter important just because the husband considers that Mr D has family in Malaysia.

27. Of the four considerations, the fourth relates to the Hague Convention.  Malaysia does not have that commitment but it certainly has a judicial system and the husband has not suggested in submission nor by presentation of any evidence that he would be denied access to a system which might refuse him a relationship with the child.

28. As I said in Gin and Hing [2010] FamCA 617:

    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.

29. In this case the evidence by the husband is virtually non-existent.  All of the husband’s submissions amount to a belief but he was unable to point to anything that gave credence to, or a foundation for, that belief.  On any view of the evidence over the six days I can ultimately find that the wife is a very competent parent.  The husband’s only reservation about her was that she was endeavouring to limit his time.  Even on that basis I am entitled to find that the wife is a good parent and she would not place the child at risk.  There is no basis therefore for me to find that there is an unacceptable risk that the wife will not return to Australia.  Indeed, I find that on the evidence, there is no such risk.

30. In respect of the first of the two matters concerning decision-making processes, it is clear that the child needs to be settled as quickly as possible and this trial will not be resumed nor finalised much before the end of October.  On that basis, it is in the child’s best interests that he attends a kindergarten and as I have earlier pointed out, I have no confidence that a consultative decision-making process can be undertaken by the parties.  That being so, as the wife has done everything that I find is reasonable to make inquiries about the appropriate centre and the husband has equivocated, there is every reason for me to find that it is in the child’s best interest that he be enrolled and attend at the non-traditional education school because that is the decision that the wife intends to make.  I am confident that the wife is making decisions in the child’s best interest.  Accordingly, she should have the sole responsibility at this stage for that decision-making process.  Orders have therefore been so made.

I certify that the preceding Thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 June 2012.

Associate: 

Date:  25 June 2012