RODA & RODA

[2014] FamCA 943

FAMILY COURT OF AUSTRALIA

RODA & RODA [2014] FamCA 943

FAMILY LAW – CHILDREN – best interests of the child – where the mother makes an application in a case – where final orders have been made – where the matter was heard on the basis of an initiating application – where the mother seeks orders that the child can go overseas for a winter sports course – where the father opposes the orders sought – where the father raises concerns as to the academic and financial impact of the move on the child – where the child’s wishes are considered – where the court makes the orders sought by the mother.

Family Law Act 1975 (Cth) s 60I

APPLICANT: Ms Roda

RESPONDENT: Mr Roda

FILE NUMBER: SYC 2084 of 2007

DATE DELIVERED: 2 May 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 2 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Cameron Gillingham Boyd

COUNSEL FOR THE RESPONDENT: Mr Gersbach

SOLICITOR FOR THE RESPONDENT: Taperell Rutledge Lawyers

Orders

1. That leave is granted to the Applicant Wife to file in court this day an affidavit of Ms Roda sworn 2 May 2014.

2. That upon the Applicant Wife filing an initiating application I intend to make orders in terms of paragraph 3 of her application in a case.

3. That the requirement of a Section 60I Certificate shall be dispensed with.

4. That leave is granted to the Applicant Wife to file in court this day a further further further further initiating application and I make Order 4 of that application, set out herein:

4.That the Applicant Wife be granted permission to send the child of the marriage, [T] born … 1998 to [Country U] from 21August 2014 to 19 June 2015.

1. That in the event any of the orders made on 23 October 2013 prevent T from travelling to Country U, pursuant to the above order, those orders shall hereby be suspended.

2. That by consent, orders are made in accordance with the document headed “Wife’s Short Minute of Orders and Directions” as amended, initialled by me and dated today, set out herein:

1.The Husband comply with order 4 of the procedural property orders dated 23 October 2013 “the October orders” in 14 days in so far as he has not already done so.

2.The Husband comply with order 5.2 of the October orders in 14 days and thereafter the parties comply with orders 5.3 and 5.4.

3.The Husband comply with order 7.2 of the October orders within 14 days and thereafter the parties comply with orders 7.3 and 7.4.

4.The parties comply with orders 8 and 9 of the October orders as varied by the deletion of the date “1 February 2014” in order 9 and replacing it with “16 May 2014”.

5.That each of the parties shall file and serve affidavits upon which they would seek to rely on or before 22 July 2014.

6.That the Wife’s interim application for transfer of the former matrimonial home to her be listed for hearing as a one hour matter at 10am on Tuesday 5 August 2014.

7.That the matter be stood over for further directions at 10am on Tuesday 5 August 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roda & Roda 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 SYDNEY

FILE NUMBER: SYC 2084 of 2007

Ms Roda

Applicant

And

Mr Roda

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is the hearing of an Application in a Case by 8 April 2014 by which the applicant mother seeks the court’s permission to send one of the children of the parties, T, overeseas to study at a winter sports academy from August this year to June next year. 

3. On 23 October 2013, in proceedings commenced by an Initiating Application, final parenting orders were made by consent.  Those orders provided that, amongst other things, T live with the mother and that the parents have equal shared parental responsibility. 

4. Counsel for the father takes the point that given that those final parenting orders were made there are now no proceedings in which an Application in a Case to be lodged and the court is without power to hear the application. 

5. This application was listed on an urgent basis, because the timeframe in which T needs to make arrangements to go overseas, if he is to go, is closing rapidly.  He is currently in year 10 at school.  His mother and the school appear, on the material I have read so far, to accept that it would not be desirable for him to go in either year 11 or year 12.  So, effectively, the matter has to be heard very shortly or he will not be able to go until after he leaves school.

6. The mother says that, without entering into the issue as to whether the submissions put on behalf of the father as to whether the court is functus or not are correct, the matter can be approached by treating the Application in a Case as if it were an Initiating Application.

7. In that way, the issue of the filing fee, which seems to be one of the matters troubling the father, would be resolved.  It would not resolve the issue of attempts made to resolve the matter before the proceedings were commenced.  To that end, the mother seeks an order that the requirement for a section 60I certificate be dispensed with.

8. There has been extensive correspondence between the parties and their lawyers about this proposed trip.  There has been correspondence between T and his father.  The issue of mediation in relation to this issue has never been proposed.  Further, both these matters were raised in court for the very first time and the applicant mother was not on notice of them.

9. What I propose to do is to give leave to the applicant to file an Initiating Application seeking the orders set out in the application in the case within 24 hours, and I will proceed on the basis that until that time I will treat the Application in the Case as if it were an Initiating Application so as to enable the matter to go on and avoid the necessity to the court to determine whether or not it is in fact functus.

10. The child T, who is presently 15, wishes to travel overseas to attend a winter sports academy in Country U.  He is supported in that endeavour by the mother, who has brought the present application seeking an order that she be permitted to send him to Country U for that purpose.  The application is opposed by the father. 

11. T was born in 1998.  He is currently 15.  It is proposed that he will travel overseas from 21 August 2014 to 19 June 2015, thus he will be 16 for most of the time he will spend away, if he is permitted to go.

12. T is the oldest of three children to the parties.  Pursuant to final parenting orders made on 23 October 2013, the three children live with their mother and the parties have equal shared parental responsibility for decisions as to the long-term care, welfare, and development of the children. 

13. Pursuant to the orders, and in the absence of any agreement to the contrary, the children were to spend time with their father from 6.00 pm on Friday to 6.00 pm on Sunday on half the weekends in each school term, and from 6.00 pm one school day to 9.00 am the following school day each week.  There was also provision for the school holiday time.

14. The evidence establishes that T is a good academic student.  The evidence established that he passed the necessary academic tests to be offered a place at X High School, a selective high school, which he presently attends.  As I said, he is currently in year 10 and will be in year 11 next year.  Shortly after the middle of next year, that is, shortly after he would return from his proposed trip overseas, he will commence the examinations getting ready for his higher school certificate.

15. The principal of X High School says that T is regarded by his teachers as a very capable, friendly and responsible student.  His school reports, which are annexed, show him generally getting good results in relation to his class.  She said that he works well with no negative incidents, detention or suspensions.  He is committed to his studies and his teachers commend him on his application and diligence.  He is described as a focussed student.

16. The principal says (in a letter dated April 2014 and being Annexure ‘A’ to the mother’s affidavit sworn 2 May 2014):

    [T’s] academic progress so far would indicate that he has the maturity and level of responsibility to settle back into the Australian curriculum without detrimental effects.

    When [T] does return from [overseas] the school would make a determination on his ability to complete the work required for year 11, taking in consideration the curriculum pattern studied in [Country U].

    I infer from that that the principal says that there is a possibility that should T go to Country U he may be required to repeat year 11.

17. T is an accomplished sportsman.  He has been a State representative in 2011, 2012, and 2013 in his age group for his chosen sport.  Yesterday he was advised that he has been selected for the State team for boys in the 16 to 18-year age bracket.  Apparently, he is one of the youngest boys in that team.

18. There was a dispute as to whether or not he could be described as an elite sportsman by his parents.  Clearly, he is an outstanding sportsman for his age in his chosen sport.  It is true, as the father points out, his chosen sport is not a major sport in Australia.  The evidence clearly establishes that T is passionate about his sport. 

19. The proposal is that he will attend the Z Sports Academy.  He has, for that purpose, been granted a part-scholarship of some slightly in excess of seventeen and a half thousand dollars by the academy for his attendance.  The balance of his expenses there are being funded by the mother and her relatives.

20. It emerges from the evidence that if T were to go to the academy he would be placed in an elite level team where, the evidence is, it is likely his skills will improve.  Two players from teams in which Timothy plays are already at academies in Country U and there will be some 15 other Australian students there as well.  The academy requirements are such that the entitlement to play sport is dependent upon proper behaviour and proper attention to academic requirements. 

21. In order to deal with this issue I must determine the course of action that is in the child’s best interests, and I must do so having regard to the matters that are set out in the Family Law Act 1975 (Cth) (“the Act”). There are two primary considerations that arise, one of which, relating to family violence, is not applicable. The other primary requirement is the need to maintain, as far as can be done, a meaningful relationship with both parents.

22. There is no doubt that T has a meaningful relationship with his mother and siblings, and there is no suggestion that that relationship will be damaged by a trip to Country U for a year although, of course, it will be, for that period of that year, a different kind of relationship because it will, necessarily, be a long-distance relationship.  That, of itself, does not preclude it from being a meaningful relationship.

23. The evidence of the mother is that, notwithstanding the orders that have been made, the father does not take up the opportunity for him to see the children, provided in those orders, regularly.  Indeed, she says that since the beginning of this year the children have spent only three occasions with the father:  three hours on 12 January; an hour and a half on 25 January and on 13 to 15 March the two younger children spent three nights with the father; T refused to go. 

24. The father said in his affidavit affirmed 1 May 2014, in response to allegations in an earlier affidavit, that the father did not take up all the time provided for him to spend time with the children:

    Although I acknowledge that Our Children have not spent time with me on every occasion provided for pursuant to the Final Parenting Orders, I dispute the reasons stated by [the mother].

    [As per original]

25. The father then refers to difficulties with his work roster – he works as a medical professional; he spent time in Melbourne assisting with his late father’s estate; the children being unwell; and on one occasion was late due to a work emergency and the mother could not deliver the children.  In summary, he said: 

    I endeavour to be available to spend time with Our Children as often as I can.  Occasionally they do not wish to come over if they are unwell I accept this is reasonable.  My work commitments occasionally prevent me from spending time with Our Children but this is relatively rare.

    [As per original]

26. The evidence, taken together, thus establishes that the children spend far less time with their father than the orders provide.  There is no evidence that the father is closely, or at all, involved in T’s sporting activities.  The evidence appears to be that it his mother who is responsible for taking him to training and games which take place between the Newcastle and Sydney areas at various times.

27. T, against the wishes of his mother, has written to his father on a number of occasions seeking to persuade his father to permit him to go on the trip.  On 28 January 2014 he said (Annexure ‘A’ to the wife’s affidavit sworn 16 April 2014): 

    This is very important to me Dad, this is something I really need to do.  I don’t want to get left behind.  I’m only asking for your permission and I am hoping you will give it to me to take the opportunity.

    I have looked at all of the relevant information regarding my academic needs, as well as my [sport], as I understand the importance of keeping them both optimal.

    I know you’re probably very busy at work at the moment but I hope you can find the time to get back to me as soon as possible.

28. On 29 January 2014, apparently not having received a reply from his father, he sent another email to his father saying (Annexure ‘B’ to the wife’s affidavit sworn 16 April 2014): 

    Mum told me that you are not happy to give me permission to do something that is very important to me.  I received this photo from … this morning, which shows along with the hard work, there is the opportunity to experience things like in the photograph.  I am very upset that you are reluctant to give your permission.  You really need to support me in this and not make it awkward, which could potentially cause bad feelings between us, that’s not what I want.

    [As per original]

29. Later that day the father sent T an email saying (Annexure ‘C’ to the wife’s affidavit sworn 16 April 2014):

    I just want to let you know that I’m trying to work out how this might work.  At this stage it is more complicated that you think it is, and it might not be possible.  This is not because I don’t support you.  I will continue to support you as I can with your [sport], schoolwork and everything else, as I do with your brother and sister. 

30. As can be seen, things have not gone as well as they could have, to the extent that in March T declined to spend time with his father.

31. It would be impossible to say, on the evidence, that T and his father have a close relationship where they see each other frequently.  Indeed, the fact that they are communicating by email says something of the nature of the relationship.

32. As I said in relation to the mother, the nature of the relationship must change if the child is in another country.  That, of itself, does not mean that the relationship would not be meaningful and of value.  That is a matter for the father and Timothy to maintain.  It is, however, not a case where it can be said that there is a really close relationship involving frequent contact that will be disrupted by the trip.  I do not see that making the orders would deprive Timothy from having a meaningful relationship with his father.  Indeed, the absence of a trip might have a deleterious effect on that.  A meaningful relationship is to be characterised by its nature, not by frequency, and such a relationship can be maintained for a year, even with a child being overseas.

33. There are another number of other factors that need to be taken into account.  First of all, it is the child’s wishes.  As has been seen, T is an intelligent person.  He seems to have achieved, at school, a good balance between his academic endeavours and his sport, which is not always easy for boys who are good at sport.

34. He is passionately in favour of this trip.  Whilst his views are not, of course, decisive, given his age, intelligence, and maturity, they need to be given considerable weight.  

35. It is obvious that this proposal, if granted, will mean that the child will spend less time with his parents, but the purpose of the time spent with parents is that that time be for their benefit.  If it were an essential requirement, children would never be able to be sent to boarding schools, for example. 

36. T will, if he goes overseas, be separated from his parents, family and friends.  He will be going initially for four months, returning for three weeks over the Christmas break, and then returning to Country U until he comes back in June.  The trip back will enable him to maintain contact with his siblings, the father, and the father’s new child.  There is no doubt that he will be able to communicate with all people by email, Skype, Facebook, and all those available communication means, if he wishes. 

37. It was submitted that there is a practical difficulty in the child spending time away from his mother, father and siblings.  Firstly, the expense seems to have been covered by the mother’s relatives and by the subsidy.  I do not see how Skype and electronic means of communication will give rise to any practical difficulty and expense.  The main practical difficulty and expense will be the return to Australia at Christmas, which seems to be the responsibility of the mother’s supporters. 

38. It is true that it will be more difficult for the parties to provide for T’s emotional needs where he is away from his family for an extended period of time.  There is evidence that indicates that the Z Sports Academy will give good pastoral care and, if the worst comes to the worst, T can return to Australia.  No doubt his siblings will miss him, and he will miss them.  That is something to be weighed in the balance. 

39. The father is critical of the mother for being overly supportive of the trip with T, particularly in advance of obtaining his consent. There is some cause in that, but that does not seem to me to be an issue that would give terribly much assistance in determining whether or not this trip is in T’s best interests. 

40. It is said by the father that he has addressed his mind to all of the issues, not just T’s wishes, and has genuinely and very carefully formed a view that it is not in T’s interests to go.  So much may be accepted.  It is then submitted that the order for equal shared parental responsibility means that the parents should decide whether T should go on the trip or not, and that as one of the persons with joint parental responsibility has decided he should not go on the trip, that should be the end of the matter.

41. It was submitted that it was not in T’s best interests for this Court to interfere in the parents’ decision, as the father has considered the issue very carefully and decided that it is not in T’s best interests to go and therefore the Court should not exercise its parental responsibility and must take this into account when determining what is in T’s best interests.

42. In the case of parenting issues, where the parents cannot decide, the obligation falls on the Court to determine those issues.  For example, if the parents are parents who have joint parental responsibility and cannot select a school for a child to go to, someone else has to and that is the Court.  The mere fact that there is joint parental responsibility does not preclude the Court from considering the issue.  What the Court has to consider is, what is, in its view, in T’s best interests.  In doing so, it is not rewarding or punishing the parents but simply deciding what is best for the child.

1. It is true that those interests are best served by the parents agreeing, but where they cannot agree, and one of them brings the matter before the Court, the Court must determine the issue.  And I do not see, on the evidence, that it is in best interests of T simply to leave the matter up to the parents;  that is to say, that the trip would not proceed.  Coming to that view, I take into account the fact that the emails demonstrate to me that the father was negative towards the trip from the outset, even before he had significant information about it. 

2. The father points out that the trip may not go well.  He could be overwhelmed by the differences in his sporting ability to those he might experience there;  that he is likely to be confronted by disappointments in the proposed program.  As a boarder in a foreign environment this could be unduly stressful.  It could be difficult for him to maintain communications and contacts with his friends and family.

3. These are indeed valid concerns and risk involved in the travel.  They are risks that are undertaken when any child is sent to a boarding school or overseas.  It might not work out well.  It might work out extremely well.  I do not know how it will work out.  The possibility, as opposed to the likelihood of it not going well is not, in my opinion, a determining factor.

4. The father also points out that he is not in a position to assist financially if there is a funding crisis, and that it would be devastating for T if his participation in the program needed to be curtailed for that reason.  That would be true but on the evidence it is more likely than not that the trip will be able to be managed from a financial point of view.

5. The father quite rightly raises the issue as to the effect on T’s academic future.  The reality is that he may not have time to prepare for his year 11 examinations in August 2015.  That may mean he may not do as well in those examinations as he would wish, and might have to repeat that year.  That risk has to be seen in the context of the opinion of the principal of his school.  Taking that into account, it is not unreasonable to expect that the trip overseas will not unduly and adversely affect T’s academic work.  At the worst, and this is a risk that he will have to undertake, he may have to repeat year 11 which may, indeed, from an academic point of view, be good for him, though it will no doubt cause him some difficulties with not being in the same year as his friends.  I am made more comfortable in that view by the favourable things said about T’s approach to schoolwork by his principal.

6. The father also said: 

   I have concerns as to how [T] will handle being away without direct parental supervision for a period of 10 months of his life and have to deal with new experiences and challenges.  I get the impression from [T] he is rather looking forward to the new experiences and challenges.  That, indeed, is the whole point of the trip.

7. It is not necessarily in the best interests of children to deprive them of new experiences and challenges.  Indeed, new experiences and overcoming the challenges of a different environment can have a markedly beneficial effect on a child. 

8. The concerns raised by the father are real concerns, and they have to be given weight.  There is, as I have said, a possibility that this might not work out well.  The evidence, however, establishes, to my satisfaction, that it is more likely than not to work out well.  I am satisfied that it is in the best interests of T to go on the trip. 

9. There are no practical difficulties in him going on the trip.  The expenses seem to be catered for.  It will mean a change in his living circumstances but, as I have said, that may well be for his benefit for a year.  It will mean the face-to-face contact with his siblings and his parents will be reduced significantly, but there is still a reasonably practical means of communication.  I am not satisfied that the practicalities involved with the trip are such that it should not take place.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 2 May 2014.

Associate: 

Date:  27 October 2014