RODA & RODA (NO.2)

[2015] FamCA 727

FAMILY COURT OF AUSTRALIA

RODA & RODA (NO.2) [2015] FamCA 727

FAMILY LAW – CHILDREN – Overseas travel – Where the applicant mother seeks permission for the child to travel to Country U in order to study abroad for a year on a sporting scholarship – Where the child is seventeen years old – Best interests of the child – Views of the child – Maintenance of personal relationships whilst the child is overseas – Orders made permitting the applicant mother to send the child overseas until June 2016.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65Y

APPLICANT: Ms Roda

RESPONDENT: Mr Roda

FILE NUMBER: SYC 2084 of 2007

DATE DELIVERED: 17 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 17 August 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cameron of Cameron Gillingham Boyd

FOR THE RESPONDENT: Mr Roda appeared on and for his own behalf

The Court Orders That:

1. The applicant mother be granted permission to send the child, T born … (“the child”) to Country U from 29 August 2015 to 30 June 2016.

2. All previous orders of the Court in relation to the child be suspended in relation to the period from 29 August 2015 until 30 June 2016.

The Court Notes That:

1. The applicant mother will be attending to the additional expenses associated with the child’s travel and study while he is in Country U.

2. While it is not mandated it would be desirable, having regard to siblings maintaining a relationship with other siblings, that if prior to travelling overseas the child, the child, had the opportunity of visiting his half-brother, P.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roda & Roda (No.2) 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

1. In this matter, the applicant mother has sought orders, pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), to enable the seventeen year old son of the parties (“T”) to travel to Country U between the dates of 29 August 2015 to 30 June 2016. The purpose of the trip is to utilise the benefit of a sports scholarship for the child to play ice hockey in Country U and also to study at the Z Sports Academy. If the orders are made permitting the child to travel it is proposed that he will be assisted with his academic studies at the Z Sports Academy and he will complete his Higher School Certificate by way of external study through Suburb AA High School. Suburb AA High operates an external year 11 and year 12 program.

2. These matters were the subject of a decision by Aldridge J in his judgment dated 2 May 2014.[1] In that decision, Aldridge J essentially conducted a detriment-benefit analysis and expressed the view that the child’s travel, at that time, should not be allowed to interfere with his studies and in particular completing his Higher School Certificate.  The child accordingly undertook the travel and returned to Australia in April of this year and recommenced studies at X High School, which is a selective high school. 

   [1] Roda & Roda [2014] FamCA 943.

3. Following his travel to Country U, the child, however, maintained a passion to return under the sports scholarship which, I understand, is worth about $17 500, and meets about half of his tuition fees.  The applicant mother has undertaken to meet the remainder of the cost of the travel.

4. This is a parenting matter and as such the Court is required to have regard to the best interests of the child under section 60CA of the Act. Section 60CC sets out a number of factors that the Court is required to consider in determining what is in the best interests of the child. Section 60CC(2)(a) relevantly provides that a primary consideration is “the benefit of the child having a meaningful relationship with both parents of the child”. In that respect, it must be acknowledged that if the child is overseas from 29 August 2015 until 30 June 2016 he will not be able to visit either parent. However, it does need to be acknowledged that the child has, regrettably, not had substantial contact with his father since March or April 2014.

5. Also, subsections 60CC(3)(d) and (e) require the Court to have regard to “the likely effect of any changes in the child’s circumstances”, including separation from either of his parents and the difficulty and expense of a child spending time with and communicating with a parent.  If the child is overseas, those matters are clearly relevant considerations.  Necessarily, he will not be in a position to visit his parents as frequently and communication will, in the main, be by electronic means.

6. Nonetheless, there are a variety of other considerations that the Court is required to consider in weighing up those matters referred to in section 60CC to which I have referred.  In particular, the solicitor for the applicant mother notes that the child has a strong view that he wishes to travel to Country U, which is a very relevant consideration under subsection 60CC(3)(a). It is also noted that the child is of an age and a level of maturity where the Court should have regard to the child’s views, pursuant to subsection 60CC(3)(g). 

7. On the evidence before the Court, the child is a very impressive young man and the Court should give considerable weight to his views. He seems to be a very mature young man who is highly organised and highly motivated.  Accordingly, considerable weight is given to those subparagraphs (a) and (g) of section 60CC(3). 

8. In addition, in terms of maintaining the relationships of the child it is necessary to have regard to the child’s ability to maintain a relationship not only with the parents but other significant people in the child’s life, including grandparents or other relatives (section 60CC(3)(b).

9. In that respect, the applicant mother has referred to the fact that, when overseas in 2014/2015, the child maintained frequent Skype contact with his mother, grandmother and siblings.  In terms of subparagraph (c), it is submitted that the mother has played a very significant role in the child’s care and academic and sporting development and I think it would be fair to say that the child’s father, the respondent, has also played a significant role, certainly up until March of last year. Clearly travel overseas is a significant change in the child’s circumstances, but to use the vernacular, “the proof of the pie is in the eating” and, during 2014 and 2015, the child was able to cope very well with that change.

10. Indeed, even though the academic standing of the Z Sports Academy may not be as high as the very high standing of X High School, the marks obtained by the child at the Academy were outstanding.

11. I accept, in that respect, the respondent father’s comments that, given T plays a sport which is not a native sport of Australia and the child would be competing with children who have been trained as soon as they could stand up, the child’s achievements may not yet have achieved the elite level. 

12. Whether those skills are eventually achieved or not is a small consideration.  Life experience in an overseas country may itself be of benefit.  The respondent father was of the view that the child would have achieved that benefit during the 2014 and 2015 period and any additional period in Country U would have marginal, if any additional, benefit for him.  That remains to be seen and only the child can determine what he makes of that opportunity.

13. I have referred to subparagraph (e), that is:

    The practical difficulty and expense of a child spending time with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

    Clearly, that is a factor. 

14. I also am required to have regard to subparagraph (i), which is:

    The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

15. If there is one comment that, in an indirect way, may be communicated to the child, I see that both of his parents have very sincere care and a desire to see what is best for him.  Clearly, the applicant mother thinks that is travelling to Country U to undertake studies there and to have the opportunity of developing his hockey skills.  Clearly, the respondent father has the view that the child’s options in life will be expanded if he has the opportunity to maximise the marks that he obtains in the Higher School Certificate.

16. Equally, the respondent father thinks it will be of the child’s benefit, which the Court endorses, if he is able to establish and develop a relationship with his two-year-old brother. 

17. There is no issue of family violence.  The child has come from a very supportive family.  Those issues simply are not relevant. 

18. In summary, to address the respondent father’s concern, they are that, from an academic point of view, the child will not do as well in Country U as he would do studying at X High School, which, as I have said, is a selective high school.  He referred to Aldridge J’s comments that the travel should not be allowed to impact upon the child undertaking the Higher School Certificate.  The respondent father believes that studying by correspondence may have a detrimental effect, or at least the effect that the child does not maximise the results that he would otherwise obtain.

19. In that respect, the respondent father said: “We cannot compare the standing of the [Z Sports Academy] with the academic standing of [X High School].”  

20. In that respect, the respondent father has referred to the fact that X High School ranks at about 39 out of 1000 in academic standing, or in other words, in the top few per cent.  No similar figures are available from the Z Sports Academy.  In terms of Suburb AA High School, where the child plans to study externally, it is ranked about 380and the year before was ranked about 500. 

21. Essentially, the respondent father’s main concern was a potentially less advantageous outcome for the child in his Higher School Certificate if he travels overseas.  The second is in respect of the child’s relations with friends and family. The respondent father would like the opportunity to engage with the child, but recognises the reality of a seventeen-year old boy’s views.  He would, however, like the child to establish a relationship with the child’s two-year old brother P. A factor that the Court is required to consider is the desirability of a child having a relationship with their siblings. While it is not directly relevant to my decision, it would be a good thing if the child is able to maintain that relationship.

22. The respondent father also raised his concern that the family’s resources may be skewed in favour of the child, at least for this period, to fund the balance of his tuition fees and living expenses. The respondent father also acknowledged that, in terms of options, the child may well wish to sit the Scholastic Aptitude Test, or the SAT as it is known, which would enable him to apply for admission to American colleges and universities.  The respondent father expressed the view that the child could do that in Australia. The respondent father also submitted that the child would, in any event, have the opportunity of being admitted to colleges in the United States after completion of his Higher School Certificate or to undertake postgraduate study.

23. By way of summary and conclusion - from the respondent father’s point of view, there would be some benefits in terms of strengthening the child’s hockey skills.  There may also be some benefits in the broader experiences that overseas travel brings.  But the respondent father argued that, for a relatively little gain in hockey skill, there could be a significant impact on his academic achievements and the future opportunities that achievement presents for the child.

24. Having weighed up all those factors, I am most influenced by subsections 60CC(3)(a) and (g). As I have said, the parents can be very proud that they have raised a fine young man.  The views being expressed by a seventeen-year old, in those circumstances, is something that the Court is required to have regard to.  I have had regard to the child’s strong views, and on that basis I will make the order sought.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 17 August 2015.

Associate: 

Date:  04.09.2015