Zestva and Zestva

[2012] FamCA 203

FAMILY COURT OF AUSTRALIA

ZESTVA & ZESTVA [2012] FamCA 203

FAMILY LAW - CHILDREN - Overseas travel – where the father wants to take the child to China to visit the paternal grandparents during the Easter holidays – whether the father should be obliged to obtain comprehensive travel and health insurance for the child for the trip

APPLICANT: Mr Zestva

RESPONDENT: Ms Zestva

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4552 of 2010

DATE DELIVERED: 16 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 March 2012

REPRESENTATION

ADVOCATE FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Greenaway

SOLICITOR FOR THE RESPONDENT: Dom Velcic & Co

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Alex

Orders

IT IS ORDERED

1. That provided the father gives notice to the mother of his intention to do so by 26 March 2012, the father be permitted to travel outside the Commonwealth of Australia to Shanghai with the child M born … January 2002, between 6 April 2012 and 22 April 2012.

2. That provided the father gives one months notice to the mother he may, in the alternate, be permitted to travel outside the Commonwealth of Australia to Shanghai with the child M between 30 June 2012 and 15 July 2012.

3. That the mother be permitted to travel outside the Commonwealth of Australia to Japan with the child M upon the giving of one months notice to the father either between 22 September 2012 and 7 October 2012 or for a three week period in the Christmas holidays 2012 to 2013.

4. That each parent not less than 10 days before leaving the country with the child M provide to the other an itinerary which includes documentary confirmation of both forward and return flights and the address and contact details of the accommodation in which the child M will be staying.

5. That each parent whilst outside the Commonwealth of Australia with the child M shall:

   a.Be the principle carer for the child M and at all times shall remain with the said child overnight;

   b.Ensure that the other parent is provided with the number of a mobile phone or a landline and make the child M available to speak to the parent in Australia at all reasonable times;

   c.Forthwith notify the other in the event that the child M suffers any illness or accident which requires medical treatment and shall provide the details of the same including the names and contact telephone numbers of any treating medical professional.

6. That each party will do all things and sign all documents required of them to ensure that a passport is issued in the name of the child M and the mother shall forthwith provide the child M’s birth certificate to the father for that purpose and that in the event that the mother is unable to locate the child M’s original birth certificate she is to notify the father within 24 hours and sign any document which may be required to obtain a birth certificate for the child M.

7. That the father upon return to Australia after any travel pursuant to these orders shall forthwith return the passport to the mother.

8. That liberty be granted to the parties to restore the matter before the Honourable Justice Rees by arrangement with Her Honour’s Associate if there is any difficultly with the implementation of these orders.

9. That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zestva & Zestva has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4552 of 2010

Mr Zestva

Applicant

And

Ms Zestva

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are brought by the father, Mr Zestva, in relation to the child, M, born in January 2002. The mother of the child is Ms Zestva, who is the respondent to the proceedings. There are between the parties, at the present time, ongoing proceedings in relation to the final parenting arrangements for M and those have not yet been determined. An independent children’s lawyer has been appointed for M and a family report has been prepared in March of 2012. By an application in a case filed on 9 March 2012, the father seeks an order that he be permitted to travel with M to Shanghai. In the affidavit in support of that application, the father gives evidence that his parents, M’s paternal grandparents, are aged over 85 years and they live in Shanghai in China. He says that they have not seen their grandson, M, for about four years, and that his mother is very ill and is really worried that she may not see her grandson. The father says that he is his parents’ only son and that M is their only grandson.

2. The mother has filed a response and a minute of orders in which she sets out, to her credit, her agreement to the proposition in principal that the father and M be permitted to travel to China. Indeed at paragraph 3 of the mother’s affidavit, filed in support of her response and sworn on 15 March 2012, she says “I agree with [M] travelling to China and I believe that [M] should see his grandparents this Easter”.

3. Mr Greenaway, of counsel for the mother, confirmed that the mother supported and agreed with the proposal that M should travel to China but that her principle concern in relation to the arrangements that they would make arose out of her wish that the Court would make an order that M should be fully and comprehensively insured as to travel and health insurance.

4. To the credit to both of the mother and the father, neither of them, in their application or in their affidavit, raises any concern that the other will not return the child and neither of them seeks any order for security for the return of the child.

5. The independent children’s lawyer, however, raised concerns about the proposals of both of the parties, that envisaged M being taken out of school, and I share those concerns. The mother’s primary concern is that the father should not be permitted to travel unless he purchases “full and comprehensive travel insurance for the child”. In her affidavit sworn on 15 March 2012, the mother raises no concerns about the child’s health, so I must assume that her concerns are not caused by any current medical condition which M suffers. The father, in cross-examination, gave evidence that during the time the parties lived together, they travelled with M. He said they travelled all the time and never took out insurance.

6. There is no evidence before me as to the cost of travel insurance but, in any event, such evidence would not have been relevant because the father said that he could not afford insurance and would, in any event, make a choice as a consumer not to buy such a product. Travel insurance is certainly an option available to travellers. It is not, however, a condition of travel and I am not prepared to impose on the father an additional expense, to which he objects, as a matter of principle. Both of the parties agreed that the journey is in M’s best interest. The effect, however, of the mother’s insistence on travel insurance and the father’s entrenched opposition to it is that if I make an order, as sought by the mother, M will not have opportunity to visit his grandparents.

7. Both of the parties agree that there is a benefit to M in the visit. I am not satisfied that the issue of travel insurance, although I accept that it is a matter of concern to the mother, is such as to outweigh, for M, the benefits to him agreed to by both of his parents of spending time in his father’s country of origin with his paternal family. The Easter holidays commence on 6 April and end 22 April. The father has not put any arrangements in place for the proposed journey and cannot be certain that he can do so. The mother, very reasonably, says that she needs notice from the father as to whether or not he intends to take the trip. I propose to allow the father ten days in which to make his arrangements and notify the mother of those arrangements. The father’s evidence was that if he is not able to put arrangements in place by Easter, then he would propose that the trip should take place in the next school holidays, between 30 June and 15 July 2012.

8. The mother seeks orders similarly to those sought by the father in relation to her proposed travel with M to Japan. The father does not oppose the mother’s proposal and I propose to allow her to take M to Japan either in the September/October school holidays between 22 September and 7 October or in the Christmas school holidays for a period of three weeks.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 March 2012.

Associate: 

Date:  16 March 2012