Sherwood and Sherwood

[2013] FamCA 516

FAMILY COURT OF AUSTRALIA

SHERWOOD & SHERWOOD [2013] FamCA 516

FAMILY LAW – CHILDREN – Application by the mother for the parties’ son to be permitted to travel overseas to pursue a sporting career – Application that the parties’ son be removed from the airport watch list – Whether final orders should be made in respect of the parties’ son, who is near legal majority – What interim orders should be made in relation to the parties’ younger daughter pending a final hearing – Expedition given to the final hearing in respect of parties’ daughter

Family Law Act 1975 (Cth)

APPLICANT: Ms Sherwood

RESPONDENT: Mr Sherwood

INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

FILE NUMBER: PAC 1907 of 2009

DATE DELIVERED: 26 June 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 26 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Brien

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Maclarens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

Orders

1. That the child B be permitted to leave the Commonwealth of Australia and be entitled to travel to the United Kingdom for the purpose of participating in a training scheme and educational scheme conducted by C Sporting Club in conjunction with School A.

2. That the name of B, a male, born … April 1996, shall forthwith be removed from the Airport Watch List.

3. That I note that the Order previously made for the parties to have equal shared parental responsibility for the subject children remains in force.

4. That I note that the Orders in respect of the child D, being the Orders of 7 August 2006, shall continue to have force and effect.

5. That I note that the matter is awaiting allocation of a hearing date on the final issue of the mother’s application to relocate to England with the parties’ youngest child, D.

6. That once a hearing date is known, the matter be listed before a Registrar for the purpose of making final directions for the matter to proceed.

7. That it is noted that it would be desirable for B to inform the father directly of his education and sporting progress.

8. That in the event that the mother wishes to file a further application in a case or other interim application that that shall not be done without the leave of a Registrar firstly having been obtained, and that application to the Registrar for such leave may be made on an ex parte basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sherwood & Sherwood 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 PARRAMATTA

FILE NUMBER: PAC 1907 of 2009

Ms Sherwood

Applicant

And

Mr Sherwood

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. The aspect of the matter that I am dealing with today relates to the immediate future of the parties’ oldest child, B, who was born in April 1996.  The issue to be determined today is whether he ought be allowed to go to the United Kingdom, as I understand the mother’s current position, on his own to join a Sport E team, and an academic institution related to that team, in the hope that this will enhance his future as a Sport E player at an elite level.  That sounds to be relatively simple.  The background of this matter, however, causes me some concern. 

2. Briefly, the parties married in July 1994, and in April 1996, B was born.  His younger sister, D, was born in June 2000.  The parties separated in about September 2005.

3. On 7 August 2006, consent Orders were made, which conferred upon the parties equal shared parental responsibility, with the children to live with the mother and spend time with the father.  To my mind, that order for shared parental responsibility is of some importance.  One might have imagined that parties who had no doubt each sought to have equal shared parental responsibility might well have used that which was conferred upon them in an endeavour to resolve this matter between themselves.

4. My understanding of the matter then is that the mother, without giving notice to the father or the child’s school, took B and went to the United Kingdom or Europe.  Indeed, the first application in this current stanza is an application by the father, filed on 1 March 2012, dealing with the surrender of passports and placing both children on the airport watch list.  The mother responded by filing an application that she be permitted to relocate with the children to France for a period of two years.  She filed an Amended Application in which she sought to relocate with both children to England for a period of two years.  Thereafter, there followed a number of Applications in a Case and Amended Applications in a Case filed on behalf of the mother.  On 21 May 2012, the mother sought orders that the final hearing of the father’s Initiating Application be expedited, together with the intake and assessment meeting with the Family Consultant.

5. On 8 February 2013, a further Application in a Case was filed by her, seeking that she have expedition of the substantive proceedings and that the child B be removed from the airport watch list and be permitted to travel overseas for the purpose of participate in trialling for Sport E clubs in the United Kingdom.  As I understand it, leave was granted for the mother to take the child on the condition that an amount of money was deposited and D remained in Australia, in the father’s care. 

6. On 19 March 2013, she filed an Amended Application in a Case seeking that her final application in respect of international relocation be listed on an urgent basis.  The father filed a Response to that application in which he sought dismissal of the mother’s application.

7. The mother then filed a further Application in a Case to be heard on 20 June 2013 in which she again sought orders that B be removed from the airport watch list, that he be permitted to travel to the United Kingdom and that the final hearing of the matter be expedited.

8. An Amended Application in a Case was filed on 19 June 2013 seeking, in addition to those orders, an order that the father be restrained from contacting, by any means, Sport E clubs in the United Kingdom that B has trialled with, or may trial with, and seeking that the child remain enrolled in a distance high school.

9. The mother has pursued this matter with extraordinary diligence, but with great respect to her and those advising her, she seems to think the Court is at her disposal as to when matters will be heard and determined.  I find it disturbing that the first mention I see of the mother seeking to relocate, be it to France or England, was when she filed a Response to the father’s application.  As I say, these parties contended that they should have equal shared parental responsibility, but once they have it, seem to ignore it.

10. In this case, it would seem to me, and I say this aimed equally at both parties, that the exercise of equal shared parental responsibility, one might have thought, was something that went to the very heart of the parties’ current dispute.  One would have thought that where their son should go from this point onwards, he being now a young man of 17 years of age, with what appears to me to be clearly expressed views, the parents, exercising equal shared parental responsibility would have found this to be the very thing that they were required to sit down and talk about.

11. This may sound trite, but no one promised that parenting these children would be easy.  It seems to me, with very great respect to both parents, that the moment they reach an impasse, instead of endeavouring to resolve it for themselves, they call upon the Court.  So be it; that is their right, and the Court is here to deal with just that situation.

The parties’ documents

1. The mother relied upon, according to her practice direction document, three affidavits by herself, which were filed respectively on 7 February 2013, 6 June 2013 and 19 June 2013. 

2. The father, so far as I am aware, recently filed a single affidavit, and that is the affidavit sworn by him on 25 June 2013.

3. There have been a number of documents tendered to me, which have become exhibits in this matter.  Further, and I find of some real assistance to me, is the report of the Family Consultant Ms F, arising out of her interviews with the parties and the children, particularly the parties’ son, which occurred at a meeting on 28 June 2012, having interviewed the mother and father on 14 June 2012.

Discussion & Conclusion

1. Put simply, the case is this:- the mother says, as I now understand her application (which has shifted ground in the time the matter has been before me), that the parties’ son be allowed to travel to England by himself, with the mother remaining in Australia, to enable him to take up a position with C Sporting Club and be involved in a program, which is clearly, on the face of the documents, run and conducted in connection with that club.

2. The mother’s case is that this is a young man, nearly of legal majority, who has expressed a very clear wish that this should, indeed, occur.

3. The father’s case is that it should not.  He points out, if I might say so with some effect, that the mother’s proposals are, at best, somewhat undefined.  There is no real supporting evidence, he says, that would indicate to me that that which the mother says is to occur is, indeed as it were, set in stone and not just a proposal.

4. Certainly, I have before me as an exhibit, namely Exhibit A, material from School A which talks about the relationship that it has with the sporting club.  I have a letter annexed to an affidavit that indicates acceptance of the son into that program.  I have material that is second hand as to the accommodation that can be offered to the son in connection with the program.

5. As I have said, the father says that this is simply not good enough.  As I understand it, he says that I should not make any order, or series of orders, that would enable the parties’ son to travel to the United Kingdom.

6. When the parties were interviewed by Ms F, it is noted that B’s proposed time with G Sporting Club was very much in consideration.  She records that the father was considering whether or not this should occur.  The father did say that he was concerned about the impact on B’s education, and he made it clear that this was notwithstanding the mother’s talk of correspondence.

7. There had been difficulties, he reported, involving the child’s school because of his sporting activities, that is to say, the child was playing for a club, rather than his school.

8. I am concerned that the parties have allowed their dislike and distrust of each other to impact upon their own feelings towards the other to such an extent that the parties, as I said at the beginning of these reasons for Judgment, have not been able to cooperatively and sensibly, as required by the imposition upon them of equal shared parental responsibility, deal with this matter.

9. The father’s case, as I have said, is that the proposal by the mother on behalf of the son is simply not able to be tested and certainly not able to be established by independent evidence capable of establishing that which the mother asserts can happen is indeed something that has already been set in motion.  I agree that the material that the mother has provided is less than perfect in this respect.

10. It was put to me with real force by Mr Givney, counsel for the father, that B should remain where he is, continue at his current school and that this was by far the best situation for him.  To my mind, and notwithstanding that the position that has been arrived at may well have been arrived at in a manner that does the mother very little credit, the situation now is that I have a young man on the verge of his majority, as recognised by the law of this Commonwealth, who makes it very clear, and made it very clear when interviewed by Ms F, that his wish is to try out and become, if he can, an elite Sport E player.

11. I agree that there is no guarantee that because he attends a program and is trained within a particular Sport E club, that this is any guarantee that he will achieve the eminence that he would wish to achieve as a player.  However, it seems to me that if he is not given the opportunity, and particularly if he can see the refusal of that opportunity as the result of the actions of one or both of his parents, it bodes ill for this young man in the future.  If he is not given the opportunity, one does not know where the future will take him.

12. Many people who have not had the opportunity to take up occupations, be they sporting, be they academic, be they trade or be they professional, have regretted that lack of opportunity for the rest of their lives.  The inability to at least try for that profession, trade or so forth is something that is keenly felt.  It is something that, in my view, should not be denied this young man.  That is to say, I am of the view that the parties’ son ought be given the opportunity to make the most of what apparently are quite extensive talents in a particular field.  We can only wish him well and hope that his dreams and expectations are realised.  However, they may not be.  But, to my mind, he must be given the opportunity to try.

13. If the child were a year or so younger, my decision would be different.  I am satisfied that the mother’s actions in this matter have sought, at all times, to force a result to give her what she wants, which is clearly to leave Australia with both her children.

14. However, I must accept the reality of the situation, no matter how it has come about, so far as B is concerned.

15. Accordingly, I propose to order that the name of B be removed from the airport watch list, and I propose to order that B be permitted to leave the Commonwealth of Australia for the purpose of travelling to England and training, and attending to his academic requirements.  Once he is over there, I concede that there is very little that I can do.  Once he attains the age of 18 years in April next year, there is nothing I can do.

16. I will, however, recommend and ask that this be brought to B’s attention - that he keep in touch with his father, that he notify his father of what is happening, and that he particularly keep his father advised as to what is happening academically.  I record here that I have no faith whatsoever in the mother passing that information to the father were she to obtain it from B.

Matters regarding the parties’ daughter

1. That then leaves the remainder of the application.  It has been expedited.  I have made it as clear as I can that, notwithstanding that expedition, because of claims on the Court’s time, it is impossible that this matter will be heard before September 2013 when the mother in earlier parts of this application said she wanted to move with her daughter to England.  The matter will come on at the earliest opportunity.  The matter will come on when the parties say that they are ready to proceed and the Court has time.

2. In the meantime, I note that the mother has indicated that she will not travel to the United Kingdom with B, but will remain in Australia with her daughter.  I would understand, therefore, that the Orders so far as they relate to D, being the Orders of the 7 August 2006, would continue to have force and effect.

3. I am sure that if the mother indicated at some stage that she wished to leave the country, upon an agreement being reached, for the daughter to remain in and be cared for in Australia by the father, that there could be no opposition by the father to the mother travelling overseas.

4. The orders that I make therefore are as set out at the forefront of these reasons for Judgment. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 26 June 2013.

Associate:     

Date:              10 July 2013