Case: Court not prepared to gamble to allow overseas trip

In Ruzicka and Middleton, the Federal Magistrates Court was faced with an application by the mother, opposed by the father, to allow her to take their year 9 daughter to Vienna to visit the maternal extended family for 27 days during the school term.

Ultimately the court held that it was not prepared to gamble as to the impact on the child’s education when the mother had not put evidence before the court as to the impact, if any, on the child’s schooling of being away for that time.

The court said:

In permitting the child to go, the child will have the opportunity of accompanying her maternal grandmother to visit members of her extended maternal family in Central Europe, members of the extended family which the child did meet six years ago. The child is 14. I find it difficult to believe that the child would have no recollection of those family members that she might have met at that time. How strong it is, the evidence does not enable me to determine. The evidence does not indicate whether, and to what extent the child may have maintained any communication with those relatives since, but even if the child had not previously met those family members, I am satisfied that there is a potential benefit for this child of knowing her full family constellation, and the trip would enable the child to further that knowledge. That, prima facie, would be a benefit to the child.

On the other hand, the child undertaking this trip would mean the child being away from school for the 27 day period of the trip. As I have already indicated, the mother gives no evidence to indicate that she has properly turned her mind to and addressed the academic needs of the child who is, as I say, in year nine, almost approaching the mid point of her secondary education. It cannot be assumed of course that at this stage of the child’s education, absences of this duration would be of no longer term consequence in the child’s academic performance, a matter itself which the mother has omitted to touch upon in her evidence.

Thus, the mother has not provided the Court with evidence which was open to her at all times to provide, had she chosen to do so, for the Court to properly balance and assess the benefits of the trip against the disadvantages of the trip, at least so far as the child’s education is concerned. There is an appropriate inference to be drawn against a person who fails to adduce evidence that one might expect would otherwise be called or to call an available witness that one might otherwise expect to see called, and that is that the evidence not called would not have assisted that party’s case, and I draw that inference against the mother. That is not to say that the evidence, if called, would be against the mother’s case, but in this particular matter it does leave the Court in the difficult position of not having the evidence it should have to assess the extent of the academic impact upon the child of undertaking the trip.