Zubkin and Zubkin (No 2)

[2011] FamCA 1020

FAMILY COURT OF AUSTRALIA

ZUBKIN & ZUBKIN (NO 2) [2011] FamCA 1020

FAMILY LAW – CHILDREN – Whether the mother should be permitted to take the children out of the country on holiday

Family Law Act 1975 (Cth)

APPLICANT: Ms Zubkin

RESPONDENT: Mr Zubkin

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1798 of 2009

DATE DELIVERED: 20 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 20 December 2011

REPRESENTATION

ADVOCATE FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Escobar

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Connor

Orders

1. The mother’s application filed 12 December 2011 is dismissed.

2. I reserve each party’s costs of attendance today, including the costs of the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Zubkin & Zubkin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 1798 of 2009

Ms Zubkin

Applicant

And

Mr Zubkin

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed by the mother on 12 December 2011.  By that application, she seeks to be able to remove the children, P and Z, twins born in 2002, from Australia for the purposes of holidaying in Europe between 28 December 2011 and 1 February 2012.  The father opposes that application. 

2. The mother’s application is supported by an affidavit which sets out the circumstances in which she is proposing to take the children on the trip with her.  The primary purpose of the trip is to see her mother, who is said to be gravely ill and her life expectancy is quite short.  In her affidavit, the mother told me:

   My mother is terminally ill and suffering from motor neurone disease and Parkinson’s disease.  The children have not seen their grandmother since April 2010, when she moved back to permanently live in [City W].  My mother was living in Australia in alternate, six month periods until 2010.  The children have a very close relationship with her.  I intend on visiting my mother between 5 January 2012 and 25 January 2012.

3. In her submissions before the Court today, the mother told me that, in fact, her mother was here until June 2010 and, further, that if the children are not permitted to travel with her, then she will not herself travel to see her mother. 

4. It is common ground that the mother in these proceedings has two other children. Ms Zubkin tells the Court that those two children were able to visit their maternal grandmother in about June or July this year for the purpose of saying goodbye to her. That is to say, the expectancy in the family was that she will not live much longer. 

5. In the submissions made on behalf of the mother, she raised concerns about the orders that were made in this Court as recently as 4 November.  She claimed that the orders were not being complied with, in that the father continued to consume alcohol in the presence of the children and/or whilst they are in his care.

6. It appears that she relies on some information given to her by the children to support that application.  She informed the Court that she has recently moved to Suburb E, and she has enrolled the children at F School in Suburb G.  Upon questioning and hearing further from Ms Zubkin, I am of the opinion that she did not consult with the father in respect of

   a)The moving of the children’s residence; and

   b)The enrolling the children in school. 

7. The moving of the residence is something that came about as a matter of necessity arising from the sale of the former matrimonial home. Quite clearly, she had to move; however, in these circumstances, she is not only moving herself, she is also moving the children’s residence. As such, she is obliged, as a co-parent of the children and a person having co-responsibility for their welfare, to consult with the other parent.

8. The mother tells me that the children have travelled out of Australia in 2004 and 2006, at a time when both the parties left Australia for the purpose of travelling overseas.  Again, in 2009, the mother took the children on a trip out of the country, this time with the consent and order of the Federal Magistrates Court.  It is her submission that the trip will be for the benefit of the children.  It will be educational, it will give them an opportunity to see their grandmother and, from the mother’s point of view, more importantly perhaps, it will give the grandmother an opportunity to see the children in her dying days. 

9. The mother has put before the Court that if the children are not permitted to leave Australia to travel with her, then she would not travel herself.  She told me that she will not go because, “I believe there will be a lot of movement to do something with the children in my absence”.

10. She has great concerns with the way the proceedings are occurring at the moment, that the orders made in recent times are not being complied with, and her allegation is that the father continues to consume alcohol.  There are also problems, she said, with the drop off and pick-ups due to the fact that the father was working, and they are effected by his mother, who uses public transport. 

11. In support of her submission that she will return, she has put that she has secure accommodation here, now recently obtained, at Suburb E.  Her life is here.  Her business is based in Australia.  She has four children here in Australia.  She does not agree with the suggestion of the father that she could easily move her business to Europe. 

12. The Independent Children’s Lawyer opposes the application.  She has not had an opportunity to speak directly to the children about this trip but reasonably assumes that the children would wish to go on the trip with their mother to exciting destinations, as outlined by the mother, and to catch up with various members of the family and perhaps to see their grandmother for the last time.

13. The Independent Children’s Lawyer says that the mother has exhibited a real antipathy towards the father and has made a number of allegations against him, including that he has possibly sexually abused one of the children.  She referred to the evidence of the interrogation conducted by the mother of the children, which she tape-recorded.  That tape recording has been the subject of real concern raised by the family consultant in evidence given in this case in this court. 

14. The mother’s disregard for the role of the father in the children’s life is said to be evidenced by the most recent of her unilateral decisions to enrol the children in a school without any consultation with the father.  Further, it appears that the solicitors who have, until recently, acted for her were not instructed to notify the father of the mother’s proposals and to seek his input.  The mother understood they had done so. 

15. It is submitted that the trip away will be for between four and five weeks.  This comes very quickly on the heels of recent variation of the orders providing for the children to spend time with their father after a period of about 10 months when there was no contact at all between the father and the children. 

16. It is submitted, on behalf of the Independent Children’s Lawyer, that the Court should proceed with caution and not permit the trip at this time.  The Court may well be able to take a different view after the final hearing in the matter and all of the issues between the parties have had an opportunity to be aired and tested. 

17. On behalf of the father, it is submitted that the mother should not be permitted to take the children out of the country because she may not return them and in that regard, her promise to return them should not be believed as she is not a witness of truth.

18. Secondly, any order made allowing the mother to remove the children from Australia will immediately interfere with recent orders made on 4 November providing for the children to spend half their school holidays with their father.  It is submitted that the mother’s position in relation to the time the children spend with their father varies with the wind and the applications which she has before the Court. 

19. The father’s legal representative outlined a number of affidavits and applications which the mother has put before the Court as recently as 4 November 2011 in support of various orders she was seeking in proceedings in this Court.  One included that the father have no contact with the children. 

20. She has provided, it is submitted, inconsistent and contradictory evidence in relation to her income.  Recently, in relation to property proceedings, she indicated that she had the capacity to raise a loan against the property, being the former matrimonial home, of $1.4 million.  If that was true, then it indicates a financial position vastly superior to that represented by the mother at this time and, therefore, the father says, that would add greater concern to the mother’s capacity to stay out of the country and not bother returning. 

21. On 14 October this year, the mother made an application to review orders which had been made on 21 September this year providing for the children to spend time with their father.  In the affidavit that supported the application, the mother said she would travel to City W from 11 November to 30 August next year.  She was proposing to care for her mother.  The affidavit was sworn two days after orders were made for the children to spend time with their father after a lengthy period of time of no contact at all.  In the affidavit, again, which supported the application of 14 October 2011, the mother claimed that the children were afraid of their father.

22. The father’s solicitor refers to the evidence the family consultant has given in this case, which makes it clear, from objective observation, that the children display no fear of their father.  On 2 November 2011, the mother sought orders which required all of the father’s time with the children to be supervised.  In the affidavit supporting that application, she made allegations of sexual abuse by the father upon P.  In that affidavit, she refers to the tapes which she recorded of interviews between herself and the children. 

23. The mother, it is submitted, has displayed inappropriate parental control of the children by permitting them to watch television shows such as “Sex in the City”.  It is submitted that allowing the children to be exposed to that type of material may well be abusive in itself.  In paragraph 35 of her affidavit, the mother says the children are progressing well. 

24. The submission of the father’s legal representative referred to the evidence tendered from Suburb H School.  Those reports are glowing in terms of the progress of the children and their scholastic achievements.  However, in the light of that, one must rhetorically ask, if the children are doing well at that school, why would you consider it to be in their best interest to move them to a new school?  No explanation was provided in that regard.  The mother has moved her residence, and she has taken steps to enrol the children in a school which I have identified earlier.

25. It is submitted on behalf of the father that the mother is not serious about wanting to take the children overseas for the purposes of seeing their grandmother and allowing the mother to participate in the care of that grandmother. One viewing of the proposed itinerary shows that she is proposing to spend less than a third of the time while she is away with her mother.  The balance of the time will be spent in Europe.  The father refers the Court to the evidence of the family consultant. 

26. It is submitted that the summary of the evidence must be that it is in the children’s best interests not to be separated from their father at this early time in the renewal of their relationship, and at the same time, exposing the children to the undiluted influence of their mother, which is said to be toxic to their father.

27. It is submitted that in view of the fact that it may be possible for there to be a final hearing in this matter towards the middle of next year it would be premature to allow the removal of the children from Australia at this time. 

28. In considering an application of this nature the Court is required to have some regard to section 60CC(3), and to the other relevant sections under part VII of the Family Law Act.  The Court is required to make orders which are in the best interests of the children.  And the paramount consideration in determining any application before the court is the best interests of the children.

29. The children have been assessed to have a good relationship with their father, notwithstanding at the time of the assessment there had been some 10 months of no contact at all between the children and their father.  The children had been exposed during that time to intensive interview by their mother and a searching for evidence to support a concern she had that at least one of the children had been sexually abused, and in general terms, that the children had been exposed to inappropriate parenting in the care of their father.  That effort on the part of the mother appeared to come to an end on or about 4 November 2011, when orders were made for the children to spend extensive periods of time with their father.

30. An assessment by the family consultant at the time recommended that there be extensive periods of time for the children with their father.  There were also concerns raised by the family consultant at that time about the mother’s interaction with the children.  The family consultant was concerned that that interaction may give rise to some degree of alienating the children from their father. 

31. The evidence before the Court at the moment is indicative of the mother seeing herself as the only parent who has a right to make any decisions in relation to the children.  Given her recent involvement with the court in the making of the orders on 4 November 2011 it is surprising, to say the least, that she would consider

    a)Moving the children’s residence; and

    b)Enrolling them in a school, without any consultation with the father, particularly in light of what appears to be a glowing report from the Suburb H School in relation to both children’s attendance at that school.

32. The Independent Children’s Lawyer suggests that if the children were asked, they would probably tell her that they would like to go on the holiday overseas with their mother.  I accept that would be the case.  And I also accept, as a basic principle, that children do benefit from exciting overseas trips in many different ways.  The concern for the Court at this time is what impact it might have on the children of spending a month to five weeks with their mother in circumstances where she clearly still evidences conflict between herself and the father and a very poor opinion of the father.

33. Today she has made a number of allegations about him including, as I have said, that he continues to breach the court orders by consuming alcohol while the children are in his care.  There was no objective evidence to support the allegation.  The mother relies, for that allegation, apparently on words the children have said to her; however, given the history of her interrogation of the children about possible sexual abuse, the Court could not rely on that report from the mother as being accurate.

34. The mother represented to the Court that the father had been notified of her change of residence and the proposal to enrol the children in school through her solicitors.  In order to verify that, the mother’s former solicitor was contacted by telephone.  The solicitor advised the Court she held no such instructions and did not so advise the father’s legal representative.  Such statements before a court are misleading.  Whether intended to be so or otherwise I am not capable at this stage of determining.  But it does certainly add weight to the submission made on behalf of the father that the mother is an unreliable person, so far as telling the truth is concerned.

35. All of those matters, in my view, warrant the Court refusing the mother’s application at this time.  It may well be that an entirely different conclusion to such an application will be reached after there has been a final hearing in this matter, when all the evidence in relation to the mother’s parenting and the father’s parenting has been able to be tested.  It is indeed regrettable that the children will miss out on the trip, and I do have concerns about how this will be portrayed to them by the mother.  However, at the end of the day, the children’s relationships with each of their parents, and in particular in this case with their father, in circumstances where this year they have spent 10 months continuously without any contact with him at all, is by far the most important aspect of this case.

36. It is because of the concern I have for that relationship, which is in the fledgling stages of its renewal, that it may be damaged by a four or five week interruption, together with the fact that the orders made last month providing for the father to spend one half of the school holidays, which have now commenced, which are to be placed on hold if the mother is permitted to remove the children from Australia 

37. For all those reasons, I would refuse the application of the mother filed on 12 December 2011.

ORDERS DELIVERED

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench J delivered on 20 December 2011.

Associate: 

Date:  20 December 2011