Ventura and Agius

[2007] FamCA 692

FAMILY COURT OF AUSTRALIA

VENTURA & AGIUS [2007] FamCA 692

FAMILY LAW - CHILDREN - With whom a child spends time - Parents living in different countries - Child to spend holiday time with father overseas - Interim orders

Family Law Act 1975 (Cth)

APPLICANT: MR VENTURA

RESPONDENT: MS AGIUS

FILE NUMBER: MLC 6313 of 2007

DATE DELIVERED: 5 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 5 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TULLOCH

SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT: MS HOLLAND

SOLICITOR FOR THE RESPONDENT: KENNEDY GUY

Orders

1. That for the purposes of paragraph 4 of the orders made on 15 September 1999:

   1.1    The wife do all such acts and things as may be necessary to have the child A born in August 1997 (“the child”) fly from Melbourne to Malta on an Emirates flight departing Melbourne on 24 July 2007 and the wife shall accompany the child on the said flight;

   1.2    the husband do all such acts and things as may be necessary to have the child fly from Malta to Melbourne on an Emirates flight departing Malta on 22 August 2007 and the husband shall accompany the child on the said flight

2. That the husband pay for the costs of the wife’s return airfare from Melbourne to Malta and the costs of the wife’s accommodation in Malta, in a hotel of no less than three star standard by Australian standards to be selected by the husband, until the next available flight to Melbourne (but no less than one night).

3. By 4.00pm on Tuesday 17 July 2007, the husband shall cause his solicitors to write to the wife’s solicitors setting out all flight details and the name of the hotel referred to in paragraph 2 herein.

4. That upon the child’s arrival in Malta, the wife hand over to the husband the child’s Australian passport and upon the child’s arrival in Melbourne the husband hand over to the wife the child’s Australian passport.

5. That within four days of the husband and the child arriving in Melbourne on or around 24 August 2007, the parties and the child attend upon Mr P or, if he is unavailable, another psychologist or counsellor to be agreed upon between the parties’ solicitors for the purposes of ascertaining the child’s maturity to travel as an unaccompanied minor, the costs of the report to be borne, by the husband, in the first instance.

6. That the husband be at liberty to arrange for the child to travel as an unaccompanied minor from Melbourne to Sydney and return during her time with the husband in January 2008 pursuant to paragraph 4.2.1 of the orders made on 15 September 1999, subject to the recommendations of the family report writer.

7. That the parties each forthwith investigate with the child the program for unaccompanied minors offered by Emirates Airlines or any other airline on which the child may be flying.

8. 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.

9. That all extant applications be placed in the Trial Notice List.

10. Each party have liberty to apply including but not limited to an application for priority if this matter cannot be resolved on a final basis by 1 February 2008.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

2. Dismiss all interim applications.

3. That pursuant to Section 68L(2) the Family Law Act 1975 the child, A, born in August 1997 separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

4. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

5. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

6. That the Independent Children’s Lawyer have liberty to apply on short notice about these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6313  of 2007

MR VENTURA

Applicant

And

MS AGIUS

Respondent

REASONS FOR JUDGMENT

1. This matter was heard in a busy Judicial Duty List.

2. In essence, the issue was whether or not the child born in August 1997 who is therefore almost 10 years of age, should fly for a holiday period with her father in Malta.

3. The background of the proceedings is very important.

4. The husband is aged 41 and the wife 38.  They were married in 1994 in Australia but lived thereafter for some time in Malta where the child was born.  Around the time of separation, the wife came to Australia and the husband followed and it was here that the relationship came to a permanent end.

5. On 15 September 1999 the parties were before the Court represented by counsel of considerable experience and consented to a raft of orders in relation to the child which were very detailed.

6. Two significant paragraphs of that order must be looked at in the context that at that time, the child was just two years of age.

7. Paragraph 4.1 of the orders provided that the child was to have time with her father in Malta for four consecutive weeks in each calendar year.

8. The second important issue is that for the purposes of that time in Malta, the mother was required to accompany the child until she was six years of age and thereafter the parties had to reach agreement about the travel.  The agreement was obviously dependent upon the age of the child and her level of maturity and if they were unable to agree, a court was to determine what arrangements were to follow.

9. Counsel for the husband said that until now agreement had been reached although the use of the word “agreement” tends to belie what each party has said in their respective affidavits.  Needless to say, the contact periods in Malta occurred one way or the other.

10. Notwithstanding that three years have passed beyond the sixth birthday of the child, the husband has paid for the wife to accompany the child in Malta and in fact provided her with accommodation during the period of time that she was there.

11. The wife’s position is that she says that agreement can no longer be reached and there are now substantive issues required to be determined for the future of the child.  The wife’s material was filed with my leave on 5 July 2007 notwithstanding that the documents appear to have been served almost a month before.  The significance of that is that notwithstanding the dissatisfaction that the wife has with these substantive orders, the parties were back in court as a result of an application by the husband.  Having regard to the request to file documents this day, in a busy Duty List, I determined that only the issue associated with the forthcoming trip to Malta along with directions as to where this case was to travel were to be determined.

12. Counsel for the husband told me that there were a number of issues that the wife had raised in her material and to which she wanted to respond.  The three main issues however that I was able to have both parties concentrate on for the purposes of my decision this day were:

    (a)      the question of the child’s wish about not wanting to go to Malta;’

    (b)the fact that the trip to Malta will not be in school holidays and therefore it is disruptive; and,

    (c)it is a costly exercise for the wife outside of the fact that the husband was willing to pay airfares and accommodation.

13. In fairness, there were other issues raised by the wife including the fact that she has persistently argued that she is fearful that the child will be retained by the husband in Malta and not returned.  The difficulty with giving that argument much credence is the fact that this trip has occurred annually and Malta is a signatory to the Hague Convention.  There has never been a suggestion of overholding by the father.

14. I made it very clear that I intended to make an order that the child go to Malta this year but that a number of issues about the future had to be determined within a foreseeable time so that this problem does not occur again and I propose to address those in these reasons.

15. One of the most important issues is the question of whether the child flies unaccompanied.  Before addressing the international issue, it should also be noted that the child has had time with her father in Australia usually during the Australian summer and as I understand the background, that is usually in Sydney.  The husband’s proposal is that for the trip at the end of 2007, the child flies unaccompanied to Sydney which will be a bit of a test run to see how she would travel for an international flight.  I do not accept that the two flights can be compared.  The Sydney flight is a little over one hour whereas the trip to Malta is somewhere around 26 hours with a variety of stopovers.  However, having regard to the fact that the parties agreed that a psychological assessment needed to be undertaken particularly in relation to the capacity of the child to travel, I indicated that I was inclined to make an order that the child fly to Sydney unaccompanied obviously after the psychological assessment had been done and subject to any direction by the psychologist that it would not be in her interest to so travel.  I propose to make an order along those lines but I wish to make it clear that in the event that the psychologist of some experience appointed by the parties determines that this child would not cope with such a flight to Sydney, it is not to occur.  The husband under those circumstances will have to travel with the child.

16. Another issue of some relevance in these proceedings is that there is an economic imbalance between the parties.  The husband is obviously much stronger financially and I accept, although the evidence is limited, that the wife does not have much by way of income and resources.  That becomes also relevant to the question of the wife staying in Malta for any period of time pursuant to these orders.

17. Returning then to the forthcoming international travel issue, there can be no suggestion that the child does not understand what the flight is about nor does she have any uncertainties about where she is going or who she will be with.

18. I have read all of the material of each party but as I have indicated, I am dealing with a discrete issue because the other matters can wait until some time in the future.

19. As I mentioned earlier, counsel for the husband said that until now agreement had been reached about various things.  However paragraph 10 of his own affidavit says that despite the orders made in 1999, he has encountered considerable resistance from the wife whenever he was trying to make arrangements about his time with the child.  He went further and said in paragraph 11 of his affidavit that the child was not permitted by her mother to fly unaccompanied as a result of which he had been obliged to collect and return her to Melbourne.  In respect of this issue, he was referring to the Australian trips during the Australian summer and autumn.

20. In respect of the most recent dilemma, the husband deposes to the fact that on 14 May 2007 he spoke to the wife by telephone and she was adamant that the child would not be travelling to Malta in 2007 and nor would she.  According to the husband, the wife said that that was because the child had decided that she would not so fly without her mother.  Apparently, the wife urged the husband to “listen” to what the child had to say.  There can be little doubt that the statement that the husband deposes to made by the child that she did not want to come unless her mother went as well was made.  The husband says that he heard the mother prompting the child.

21. In reply to that, counsel for the mother made it very clear that the mother acknowledged that the child was devoted to her father but that she was now very anxious because she had always lived with and travelled with her mother.  She said that her client’s position was that the child’s wishes were critical.

22. Much of the mother’s affidavit is directed to the child’s expression of her opinion.  Part of the dilemma that I have is that the child is not yet 10 years of age and I have no evidence as to her level of maturity or understanding.  It is quite clear however that the mother does not want the child to travel to Malta.

23. Having regard to the lateness of the application by the mother and the history of travel, I see no reason to make a variation based upon that material.

24. The second issue raised by the mother was the fact that for the child to go overseas would be disruptive of her schooling.  Attached to the mother’s affidavit is the child’s school report.  The child is in Fourth Year at school.  Her Semester 1 report speaks of her capacity for learning and achievement and for what it is worth, the standard shows that the child is reaching the appropriate levels.  If there is any question about the child’s educational progress, it might be that she needs to be encouraged to continue reading every night and to form a routine for that reading as well as the parent’s conducting little spelling tests each night.  Counsel for the husband says that those issues are not a problem and the father can undertake that task.

25. To give some comfort to ensure that that will occur, I have noted that the father has consistently had the time with the child over the years since 1999 so there can be little argument about his dedication to the task.  In terms of his capacity, it is hard to see a problem because he works as an analyst for a bank and holds a Masters Degree.

26. Counsel for the mother acknowledged that the school report makes the child look stable.  It is the mother’s evidence that I am relying on here.  Counsel put that the child is an emotional child, very sensitive to her mother and not an independent thinker.  Even if I felt that that was the only issue of concern, it can be ameliorated by the fact that the mother can travel with the child this time and the parties need to seriously contemplate what is to happen in the future with the assistance of professionals as well as the airlines to see what can be offered by way of unaccompanied flights for the child in the future.

27. It is also interesting that it is the mother who has filed the school report and yet there is no evidence from any independent school principal or teacher to indicate that an international travel for the child would be adverse to her educational interests.  Particularly having regard to the submission of counsel that the child is an emotional and dependent child, I would have thought that evidence of that nature would be of some assistance.

28. Accordingly, on the discrete issue, the question of the disruption of the child’s schooling is not something that I propose to give much weight. 

29. The third issue raised by the mother of some substance is the fact of the economic disparity between the parties.  Notwithstanding the fact that the father not only proposed and in the past has paid the airfares, the mother rightly complains about the fact that she has to lose work time and hence money waiting around Malta in what must be difficult circumstances for her.  I suggested that as I was treating this particular trip as a discrete period, I could see no reason why the wife should not travel to Malta with the child and then come back after a period of time in a reasonable hotel.  Ms Tulloch for the father indicated that although she did not have instructions on that issue, she could see no reason why that order ought not be made and the father would not agree to it.  I made it very clear that the accommodation was to be of reasonable standard and such that the wife had time to recover her self bearing in mind that she had flown with the child for a period of some 24 hours.  The orders I propose to make will reflect that. 

30. The parties had some argument between themselves about what was the appropriate standard of accommodation for the mother and I have made it very clear in my orders that it is to be a standard at least equivalent of the three star Australian hotel standard.  As I have made it also clear to the parties, should there be some game-playing as a result of my orders on this occasion, I am sure that a future hearing will take into account that the spirit of my orders was not fulfilled.

31. The wife in her affidavit sets out many of the historical issues including making reference to past matters associated with travel in and around Malta which created problems.  She made reference to the fact that she had difficulty getting the child out of Malta once she was there.  That problem is now solved by an order that the father fly back to Australia with the child and although the mother expresses concern about whether or not he will do that, I have no evidence that would justify any such concern.  Furthermore, counsel for the father has indicated that upon returning the child to Australia, the parties can attend upon a clinical psychologist agreed between themselves as well as make independent inquiries (if they cannot do it together) of the respective airlines with the child so that the child understands what unaccompanied travel means.  It is in the light of that, I propose also to make orders about the forthcoming summer holidays so that if the psychologist believes that the child is mature enough and ready to travel unaccompanied on a one hour flight to Sydney, it should occur as a precursor to a more serious flight internationally in the future.

32. Notwithstanding the fact that this dispute was about the question of international travel, passport and economics, the underlying philosophical basis upon which I can make any decision is that it has to be in the best interests of the child.

33. This is a parenting order.  Accordingly, I am obliged to follow the pathway set out in Part VII of the Family Law Act1975 (Cth) (“the Act”).

34. Although I am obliged to contemplate the question of the presumption of equal shared parental responsibility, in this interim hearing, that issue was not canvassed and neither party considered it of any significance.

35. Accordingly, I am determining the matter on the basis of the evidence provided to me which I accept is untested and using the relevant provisions of s 60CC of the Act.

36. Section 60CC is divided into primary considerations and additional consideration.

37. In respect of the primary considerations, I have no evidence to suggest that the child is at risk of physical or psychological harm of the nature described in the sub-section.  The more fundamental issue is the right of the child to have the benefit of having a meaningful relationship with both parents.  The child clearly has the benefit of the close relationship with her mother as her counsel has persistently argued.  There is a very strong dependence between mother and child. 

38. All of the evidence however put to me in relation to the husband’s case is that there has always been and continues to be a close and loving relationship between he and the child.  That does not seem to be challenged at all.  I do not have any evidence of how the child will benefit from a relationship with her father if she does not see him in the way that she traditionally has since the age of two.  Accordingly, it seems to me that the best interests of the child are continued by the four week period with her father proceeding.

39. In relation to the additional considerations set out in the section, as I have hopefully made clear above, the mother strongly argues that this is about the child’s wishes.  I am obliged to take into account her views but I am only to take those into account as part of the overall consideration of what is in her best interests.  In addition, it is a question of what weight I should give to the relevance of those views.  I have some reservation about contemplating the views at all having regard to the fact that the husband asserts that the mother has been with the child when the subject of the international travel has been contemplated.  That is clearly not ideal.  I was told after all submission were made that the mother had attended Court with the child who was sitting outside of the courtroom.  Whilst I appreciate that this hearing took place in school holidays, that was not ideal.

1. In my view, without having some expert independent evaluation of the child s view, I do not think that I should give much weight to the views (expressed by the mother) of a nine year old coming on ten year old child.

2. In respect of the nature of the relationship with the child and each parent, there is no suggestion of a problem.

3. The next issue relates to the willingness and ability of each parent to facilitate the relationship that the other parent has with the child.  I have not seen or heard any evidence which would suggest that the husband is destructive of the relationship between the child and her mother.  I have some reservations about what the mother is asserting to be the case and particularly about her willingness to facilitate the ongoing relationship between father and daughter.  That comes to some extent because of the fact that counsel for the father said that the past contact visits in Malta had always taken place but it is only upon reading the father’s affidavit that one concludes that it has not been all plain sailing.  However, by virtue of the orders I propose to make at least for the ensuing six months, there will be an opportunity for each party to establish just what each will do to ensure the ongoing relationship with the other.  I appreciate very much that the mother may be unhappy with the orders that I have made today and that will complicate things because of the fact that she is being ordered to fly to Malta.  I have warned her and I do so by these reasons that she needs to put aside her own feelings about the father and encourage the ongoing relationship with the child in a positive way.

4. I am obliged to consider the likely effect of any changes in the child’s circumstances in relation to the separation from a parent.  The only separation from the mother in this case will be during the holiday period and that seems to be consistently each year and there is no complaint that I have heard that the child in the past has felt that the period of time was too long.  To deny the opportunity for the child to spend some time with her father in the country in which she was born, may ultimately be destructive of the primary consideration of her having a meaningful relationship.  The likely change therefore in the consistent holiday to Malta in my view is not in the child’s best interests.

5. I do not find that there is any practical difficulty or expense associated with the child spending time with the father for the reasons I have articulated.

6. As for the capacity of each of the parents to provide for the child’s emotional and intellectual needs, my concern as expressed above about what each parent is saying to the child is very important here.  It is critical that the parents encourage the child to allow them to work out the arrangements with the assistance of professionals failing which, the Court will decide the issue but not embroil the child in that argument.  Whether that is actually happening is hard for me to determine on the material and I have already warned that it should not.

7. I have made comment about the maturity and lifestyle of the child and in particular her background of being something of an international traveller from a very tender age.  I do not see any reason in the material in the circumstances to alter that at this stage. 

8. There are no issues of aboriginality nor of family violence in this case that I consider relevant to the issue before me. 

9. I am also obliged to take into account the attitude of the parents to the responsibility of parenthood.  It seems to me that whilst I have some hesitation about what the mother is suggesting, I have already indicated my concerns and that issue will no doubt become more obvious as the months after the holiday period unfold.

10. Accordingly, it seems to me that it is in the best interests of the child based on those factors that she should spend time as she has traditionally done with her father. 

11. Section 60CC(4) also requires a court to examine the issues associated with the parties taking opportunities to spend time and having responsibilities for children as well as parents facilitating those opportunities and responsibilities. Those are matters about which I can make no finding at this stage because I have dealt with the matter on submissions and on the papers but I have made it sufficiently clear that that is a matter that a future hearing will carefully examine.

12. Accordingly, it is my view that it is in the best interests of the child to make the orders that I propose. 

13. I also raised with the parties whether or not there ought to be an Independent Children’s Lawyer appointed.  Whilst there was some reluctance about all of that, because of the infancy of the proceedings, it seems to me with the international distance involved and the potential for argument between the parties about what should or should not happen and who the parties should see for assistance, an Independent Children’s Lawyer will provide some impetus for the parties to focus on what is needed for the child.  Accordingly, I propose to make an order.  No doubt when the Independent Children’s Lawyer reads these reasons for judgment, the concern that I have will be obvious.  I expect that the parties by my orders will attend a psychologist at the expense of the husband initially for the purposes of endeavouring to work out not only what it the child’s capacity to travel unaccompanied but in the event that there is a problem, how it can be overcome.

14. The Independent Children’s Lawyer might also be of some assistance to the parties in respect of introducing the child to the concept of unaccompanied flying.

15. I see no reason in the circumstances to keep the interim applications alive which may mean that the parties have to wait in the list but having regard to the fact that there may be a problem in respect of the forthcoming holidays in Australia as well as the potential international travel in 2008, I propose to make an order that the parties have liberty to apply including to make an application for priority if the matter is unresolved so that it can be at least determined early in 2008.

16. I will also give the Independent Children’s Lawyer the liberty to apply on short notice if he or she after receiving advice from a psychologist feels that court intervention is necessary in respect of any of the future travel for the child.

17. I have proposed that my reasons would be transcribed and made available to the parties.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  11 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VENTURA & AGIUS