T and P - [2007] FMCAfam 1008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & P

[2007] FMCAfam 1008

FAMILY LAW – Children – overseas travel.

FAMILY LAW – Costs.

Family Law Act 1975 ss.60B, 60CC, 61DA, 65DAA, 117

Applicant:

ATT

Respondent:

MJP

File number:

PAC 4883 of 2007

Judgment of:

Halligan FM

Hearing date:

21 September 2007

Date of last submission:

21 September 2007

Delivered at:

Parramatta

Delivered on:

21 September 2007

REPRESENTATION

Solicitors for the Applicant:

Applicant in Person

Solicitors for the Respondent:

Ms Barnes

ORDERS

The mother's application, filed 29 August 2007, is dismissed.
The father's costs application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 4883 of 2007

ATT

Applicant

And

MJP

Respondent

REASONS FOR JUDGMENT

This is the hearing of an application by the mother of a 13 year old child, H, for permission for the child to accompany her on a trip to London due to commence in seven days time. The application is opposed by the father.
It is agreed that this is a parenting order. Therefore the usual provisions of Pt.VII of the Family Law Act in relation to the making of parenting orders applies. That is, the child's best interests are the paramount consideration in determining whether the order should be made. In determining where the child's best interests lie, the Court must have regard to the primary matters identified in s.60CC(2) and the additional considerations identified in sub-s.(3) of that section. And in taking those matters into account, the Court must have regard to the objects and principles of Pt.VII as set out in s.60B of the Act. Further, by s.61DA, the Court is required to apply a rebuttable presumption when considering making the parenting order, that it is in a child's best interests for the parents to have equal shared parental responsibility of the child. There is already a parenting order in relation to this child and it is agreed that having been made before 1 July 2006, that is before the commencement of the shared parental responsibility amendments to the Family Law Act, that that order effectively operates now as an equal shared parental responsibility order.
Finally, and relevantly for present purposes, under s.65DAA where the Court intends to make an equal shared parental responsibility order, or where such an order is already in force, as is conceded to be the case here, the Court, whatever other orders the parties seek, must consider making an order that the child spend equal time with each parent. If it does not make that order, it must consider making an order that the child spend substantial and significant time with each parent.
The orders currently in force were made in the Family Court of Australia at Parramatta on 11 May 2005. They provide for the child to live with the mother, the parents to be jointly responsible for making long-term decisions in relation to the child, and for the child to have contact with the father very broadly during school terms, on special days and half of school holidays.
Further, in paragraph 8 there is a provision that neither party is to take the child out of the Commonwealth of Australia without the written agreement of the other or by order of the Court. Apparently quite recently, according to the mother's evidence – she was not challenged in this respect, as in fact the father was not challenged in his evidence either – an opportunity arose for the mother to travel to England. This was in connection with her work as a management consultant in the transport industry. She says the purpose of the trip is to review rail transport arrangements as part of her role as a management consultant, and she says that an airline had a good offer for half price for children under 19.
The mother says she therefore asked the child if she would like to go and the child said yes. The mother then said she would need the father's agreement. The mother therefore has immediately raised the prospect of the trip in this child's mind, even though she knows that she cannot take the child out of the country without either the father's agreement or an order of the Court. In my view this was clearly inappropriate, and clearly inappropriately involves the child in matters which are properly the province of the parents and if the parents cannot agree, it is the province of the Court.
I must say I do have some real concern that this portrays a rather lamentable misunderstanding by the mother of her position in relation to the child. She does not have the power to make this decision as she herself acknowledged to the child. The parents have responsibilities to this child, and one of those responsibilities is to ensure that the child is not exposed to emotional pressure, stress or harm, much less emotional abuse. To expose a child to parental conflict is a form of emotional abuse and it can have long-term adverse affects upon the child.
The father agreed twice so far this year to the child travelling overseas. He agreed to forego one of his block holiday contact days in January so the mother could take the child to Hawaii. In July he agreed to forego three of his block holiday contact days so the mother could take the child to Vietnam. It therefore might be argued, although this was not put on behalf of the mother, that because the father had agreed to these trips perhaps he would agree again. But it was most unwise for the mother, if in fact she did to make that assumption, to act as she did upon it, that is, by immediately raising the issue with the child.
I accept, amongst other things because it was not challenged in any way, the mother's evidence that the child, perhaps understandably, jumped at the prospect of another overseas trip this year, this time to England. And although it was not part of the mother's affidavit or application for the orders she sought, it appears from the material she provided to the father that she proposes to travel not only to England but to Continental Europe as well.
How this then gels with the mother's evidence that the trip was because she was going to England to review rail transport arrangements when in fact a sizeable period of the time will be spent, it seems, touring around Europe is not explained. Nor is there any explanation anywhere in the mother's evidence as to what the care arrangements for the child would be while the child is overseas with her and the mother is working.
The mother then raised this issue with the father and the father had some concerns about it. The mother proposes that she and the child would leave next Friday, 28 September. That is the last day of this State's school term. There is a suggestion at the Bar table that at least at Christmas time this child may not have observed the normal State school holidays because the child is going to other than a State school, but this was not covered anywhere in the evidence. I am left not knowing what the school holidays will be so far as this child is concerned, at least in relation to the commencement of the holidays.
The State school term, term four, commences on 15 October 2007. By inference from one of the emails the mother sent the father, it would seem that that is so for this child as well, although in that email she suggested to the father that that first Monday, 15 October, was a pupil free day. The mother, in her application, put that the trip was to London from 28 September to 14 October. Material provided by the mother to the father in fact suggests that whilst the flight out of Sydney leaves at 12.50 on 28 September, the last leg of the return flight departs at 9.05 pm on 14 October with an arrival time in Sydney of 6.25 am. This must therefore be on the morning of 15 October. Again, it would seem that the mother's material is not reliable in that respect.
The father, as I say, has some concerns about the child having time to overcome probable jet lag. The mother, from her email, seems to suggest that the pupil free day will be sufficient. She does not, in the emails, seem to recognise that it may not be and therefore it would seem that come what may, her intention is that this child will go to school on the 16th irrespective of whether the child is still feeling significant effects of jet lag. Certainly, I take account of the unchallenged evidence that the child’s IQ level would suggest that she would have absolutely no difficulty at all in catching up a few days of missed school, but that does not seem to be the mother's plan.
As I understand it, the father did not directly challenge, all other things being equal, the prospective benefit for the child of overseas travel. Rather the father seems to be objecting to the order on the basis, firstly, that the child has already had two overseas trips this year and therefore this one would hardly seem to be the unique opportunity that the mother suggested it is, that the travel arrangements the mother proposes would seem in some respects to be inappropriate or potentially so, particularly in relation to the child's return to school almost immediately after return to Australia after a very long international flight, and probably more importantly, the effect of such a trip upon his time with the child.
He suggests in his evidence, as I say, that he surrendered one of his block days in January and three of his block days in July this year so that the child could have overseas trips. He apparently, with the mother's agreement, made those days up on weekends. In this instance, however, he would be losing the entirety of his block time during a school holiday period. The mother suggests that that time be made up in the coming Christmas school holidays. The father's unchallenged evidence is that he in fact is due to spend time with the child from 6 to 31 January and otherwise during the child's school holidays has work commitments.
Of course it is not unusual for parents to have block holiday time and be working when the child is with them. That is the reality of the community norm of four weeks annual leave for those in full time employment. The fact that in this particular case the father may be able to arrange more time than that certainly cannot be ignored. The significance, as I understand it, that the father raises is that he effectively will not be able to make up with the child that which would be lost in this school holiday period if the trip occurs, at least not for some time, certainly not before the holidays at the end of term 1, 2008. There is no clear evidence as to whether it is a reasonable prospect he could arrange his working commitments to do that then or not. All I have is evidence that he clearly cannot do it in January, or more correctly, the December/January school holidays next occurring.
The difficulty then is what is in the child's best interests. In fact in this case, the question may come down to what appears to be less likely to adversely affect the interests of the child. As I have already commented, whichever decision the Court makes there is potentially a downside and perhaps a significant one for the child.
If the Court grants permission for the child to go, the child will lose valuable time with the father that cannot, in the foreseeable future, be made up. If the Court makes an order that the child cannot go, because the child's expectations have already been built up by the mother, the child will understandably feel disappointed and may blame her father for the loss of an opportunity she would otherwise wish to have. Certainly I note that in the emails that passed between the parties when they got to an impasse, the mother suggested that the father should speak directly with the child about agreeing or disagreeing with the trip. Again, I am concerned that that could be construed as emotional pressure, dare I say blackmail, on the father to have him agree by inappropriately proposing that the child be involved in decisions which are rightly the parents’ to make.
Turning then to the specific considerations under s.60CC. The first is the benefit to the child of having a meaningful relationship with both of the child's parents. Ultimately I take the view that this consideration is neutral. Clearly, making an order as the mother seeks will deny this child a valuable opportunity to continue a relationship with the father. I am not suggesting for one minute that it would destroy that relationship or substantially adversely affect it, but it clearly impedes what is otherwise intended by these orders to be the means by which that relationship is to continue.
On the other hand, as I have already acknowledged, to refuse the order that the mother seeks, because of the mother's own actions, may have the effect of placing some strain on the relationship between father and daughter. As I say, based upon the evidence, I am not well-placed to be able to make a qualitative assessment or comparison as between those two competing considerations and I therefore must treat them as neutral.
The second of the primary considerations does not appear relevant in this case.
The first of the additional considerations is any views expressed by the child, and any factors relevant to the weight that should be given to the child's view. In circumstances about which I have already indicated some disquiet, the child has been involved, as I say inappropriately, and the child has expressed the view which seems to be in favour of the trip. The child is 13, appears to be extremely bright, and in the circumstances I am satisfied reasonable weight should be given to those views.
The nature of the relationship with the child with each of the parents is a matter which, on the evidence, I cannot qualitatively assess. There is nothing to indicate it is other than appropriate.
The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship with the child and the other parent is a matter which arises in this case. It is a matter to which sub-s.(4) and (4A) of s.60CC are directly relevant. Under

sub-s. (4) and (4A) the Court is required to consider the extent to which each of the parents have fulfilled, or failed to fulfil, their responsibilities as a parent, and in particular, the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and communicate with the child, and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the child, spending time with the child and communicating with the child and has fulfilled, or failed to fulfil, the parents' obligation to maintain the child. In particular the Court must have regard to events that have occurred and circumstances that have existed since separation.
The mother certainly has sought to make some sort of allegation the father may have been, in her view, less than punctilious, in seeking to discharge his financial obligations to the child. There is no evidence of that, and I do not make any finding to that effect. On the other hand, the matter that I have already abhorred, of the mother inappropriately involving the child and attempting to use the child to pressure the father to agree to what she wanted to do, in my view is an adverse factor to the mother in that, in my view, it has not facilitated in a positive way the father's participation in making this particular decision in relation to the child's overseas travel, which relates to a major long-term issue.
The next relevant consideration is the likely effect of any changes in the child's circumstances. The relevant matter here is the matter that I have already dealt with under the first of the primary considerations – the potential effect of my either granting or refusing the application and I need say no more about it.
Paragraph (3)(e) in my view is irrelevant. Sub-s.(f), the capacity of the parents to provide for the needs of the child, including emotional and intellectual needs, again does not seem to be a matter significantly raised on the evidence in this case subject to this.
I have already noticed the absence of any evidence by the mother as to care arrangements that she would put in place, or propose to put in place, for the care of this child while she is in fact working during this trip. There is not even any clear evidence as to what her work commitments may entail and how much of the trip she would in fact be working. It is a matter of concern where the Court is asked to approve the trip by reference to the child's welfare over the father's objection, and it is an argument against approving the trip.
There are no issues of aboriginality or family violence or family violence orders raised in this matter. Paragraph (3)(i), the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents is again a matter to which sub-s.(4) and (4A) of s.60CC relate. There is no separate matter, other than the one that I have already dealt with under paragraph (3)(c), the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and I can say no more about that.
It would seem, therefore, that the major argument in favour of the trip is the fact that the child, according to the mother's evidence, wants to undertake it. The factors that are against the trip would seem to be the way in which the mother has not properly facilitated, and in fact has sought to subvert the father's full and free participation in making a decision in relation to this trip, rather the mother appeared to involve the child to get her own way, and in relation to the same consideration, the attitude to the child and the responsibilities of parenthood, and the lack of evidence about care arrangements for the child when the mother is working. Otherwise the matters would seem to be neutral or irrelevant.
Doing the best I can on what ultimately is quite limited evidence, I am not satisfied that this is a trip that the child should take. I cannot be satisfied that there are proper care arrangements in place for the child whilst the mother is working. I do have some concerns as to the mother's care proposals or schooling proposals upon the child's return, bearing in mind the child may need more than less than one day to recover from potential jet lag and I am concerned also about the loss of the time that the father was meant to have for the entirety of his share of the coming school holidays in circumstances where the unchallenged evidence is that it could not be made up in similar manner for some considerable period of time.
I am satisfied that these factors outweigh the fact that the child wishes to undertake the trip.
Application has now been made for the father's costs of these proceedings, the mother having failed in her application. The father's primary application is for solicitor/client costs in an unspecified amount, based upon a suggested costs agreement which was not produced to the Court. No reasons have been given why the mother should meet what are said to be solicitor/client or otherwise, I infer, indemnity costs, therefore that application must fail.
In the alternative, party/party costs are sought in accordance with the Federal Magistrates' Court scale. In support of the order it is put that the mother's first request for agreement from the father in relation to overseas travel was made in early August. The father promptly conveyed his objections to that with the mother. The parties subsequently were unable to agree but the father kept attempting to negotiate with the mother right up to quite a late date and ultimately had to retain solicitors to represent him. It was also put it was an urgent application in which the mother was wholly unsuccessful and the father wholly successful.

The mother objects to the costs order being made and ultimately I did not call on her to make any submissions because I am not satisfied on the submissions on behalf of the father that any order should be made.
The starting position in proceedings under the Family Law Act is that each party bears his or her own costs. S.117 of the Family Law Act governs the situation. The party seeking a costs order bears the onus of demonstrating reasons why an order should be made. The relevant considerations in that exercise are identified in sub-s.(2A) of the Family Law Act.
Of the matters there identified, the only ones apparently relied upon in this particular case would seem to be the mother's lack of success and the father's success, and the facts that the application, or more correctly, the first proposal for the overseas trip was made relatively recently, and that the matter was brought to Court on an urgent basis. It is unclear whether these latter points are suggested to come under the rubric of conduct or other relevant circumstance.
The fact is that this is a parenting matter. It is certainly not the case that the Court will not make a costs order in a parenting matter. However, the nature of the proceedings is relevant to the exercise of discretion. It is put, of course, that absent agreement the matter was then brought to Court. And of course, absent agreement, the only course to be followed by the mother was to either give up or bring the matter to Court. I therefore do not see that in any way relevant. Nor was it put to me that there was any particular aspect of the circumstances in which the mother was unsuccessful that ought to attract a costs order.
It is almost invariably the case in a parenting matter that one party can be said to be wholly unsuccessful. Sometimes both of parties may be so described. That does not warrant a costs order on its own. More needs to be demonstrated. Similarly the fact that this matter came to Court on relatively short notice is not a matter which in my view ought to excite the Court's attention by way of a costs order, and ultimately I can see no good reason to make a costs order in this particular case, having regard to the matters that were raised and the provisions of s.117.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 22 November 2007