Feldman and Feldman - [2012] FMCAfam 694

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FELDMAN & FELDMAN

[2012] FMCAfam 694

FAMILY LAW – Children – mother and children live in Canada – whether children will spend time with the father in the Canadian summer school holidays – whether the time spent should occur in Canada or Australia.

Family Law Act 1975

Applicant:

MR FELDMAN

Respondent:

MS FELDMAN

File Number:

ADC 6372 of 2007

Judgment of:

Kelly FM

Hearing date:

19 June 2012

Date of Last Submission:

19 June 2012

Delivered at:

Adelaide

Delivered on:

19 June 2012

REPRESENTATION

Counsel for the Applicant:

Ms H Black

Solicitors for the Applicant:

Alderman Redman Lawyers

Counsel for the Respondent:

Ms P Kari

Solicitors for the Respondent:

Donlan Lawyers

ORDERS

The children [X] born [in] 2002 and [Y] born [in] 2004 spend time with the father for a period of three (3) weeks during the Canadian summer school holidays to conclude no later than 24 August 2012 and commence on a date to be agreed between the parties taking into account the children’s school camps or other activities already arranged for the holiday period.
The mother or her solicitors notify the father of those activities and provide written documentation relating to same by Friday 22 June 2012 AND in the event she fails to do so then the father is at liberty to book the travel arrangements on dates to be nominated by him in July 2012.
The children’s travel between Canada and Australia take place on an accompanied basis with the mother escorting the children.
The father meet the costs of the children’s and mother’s return airfares between Canada and Adelaide.
During the children’s time in Australia, the father shall return the children to the mother’s care each sixth day at 5.00pm until 5.00pm the following day with the children to be returned to the mother’s care no later than 5.00pm on the day prior to their return flights to Canada.
In the event no final resolution has been reached, that the parties be in a position to clarify the outstanding issues and competing proposals and addressing the final resolution by evidence/cross examination or otherwise including proposed witnesses and length of trial.
The matter is adjourned to 13 September 2012 at 2.30pm for further consideration.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 6372 of 2007

MR FELDMAN

Applicant

And

MS FELDMAN

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally at the conclusion of an interim argument. They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.

These two young children, [X] and [Y], now live in Canada with their mother. Their father has remained living in Australia. We are here dealing with the ongoing arrangements necessary to ensure the children are able to maintain a proper and meaningful relationship with both of their parents, given the distance involved.
It is clear that there have been significant difficulties around these issues. Even with the assistance provided by mediation and by their legal representatives, the parties have been unable to resolve these matters. It is not necessarily the case that either party is being particularly difficult or uncooperative. It may simply be that each party has a different perspective about what arrangements will best suit the children and will be in the children’s best interests. The mother, for example, has focussed on the desirability of the children spending time with their father in Canada as well as Australia, so that they can share their Canadian life with him and to provide the father with some insight into their day to day life there.
The parties disagree about the quality of the children’s relationship with their father and whether they enjoy spending time with him. The father says he has a good relationship with the children and they enjoy their time with him. He does not see any need for the children to return to their mother’s care every few days, as the mother seeks. However he is prepared to concede such an arrangement, in an effort to keep the situation working smoothly and minimise any distress or anxiety for the children while they are spending time with him.
The cost of travel between Canada and Australia has obviously been a significant issue in the past. I have previously indicated my view that the father should meet the costs for any travel in July/August 2012, due to the relatively late formal notice of his proposals in that regard. I consider the mother has a legitimate complaint on this point. Given that the parties were exchanging correspondence earlier in the year, it is difficult to understand why the father did not include his precise proposal for the July 2012 school holidays within that correspondence.
Be that as it may, my obligation is to put in place orders and arrangements that I consider to be in the best interests of the children. Clearly it is going to be in the children’s best interests to spend regular time with their father, whether in Australia or Canada. There is no dispute that face to face time together is the best way to support and enable an ongoing meaningful relationship between a parent and child. Skype is a better “long distance” option than was previously available to families before the advent of the Internet, but it is still not the same as shared meals, hugs at bed time and so on.
I am of the view that the children should have the capacity to spend time with their father in Australia during the forthcoming Canadian school holiday period.
The mother complains that the visits should alternate between Canada and Australia each year and the children have already travelled to Australia this year. The mother has previously proposed that the children’s time with their father should alternate between Australia and Canada. She further proposes that the children should alternate spending Christmas and any mid year visit with their father in Australia. Such a proposal means there may well be some occasions when the children travel to Australia more frequently than once every twelve months, as is happening here.
Strictly speaking, the children’s last period of time with their father as ordered by Lindsay FM actually commenced in December 2011. It may be that the father does not put the same focus on having Christmas with the children in Australia – certainly his application does not address that specifically. It may be that he would ultimately prefer to enjoy a longer block of time with the children in Australia when the children have their mid year long school break. These are all issues for further consideration.
I note the concerns raised by the mother about the recent telephone communication or Skype communication that took place between the children and the father. She says the children clearly indicated to him that they do not want to visit him during the July/August school break. The children may well have said this, but some of their apparent resistance may be because they will miss out on particular activities in Canada. There is no doubt that children may feel aggrieved and distressed about such matters, but frankly, I do not consider that planned activities should override the importance of the children’s relationship with their father.
Having said that, it may be that the children’s time with their father in Australia can be structured around their other activities in Canada, given the length of the Canadian school holidays. The father would prefer dates that would overlap with his mother’s availability as well. I note the mother agrees that the children enjoy a good relationship with their paternal grandmother. If her availability can be factored in as well, that is all to the good, but is not the determining factor, given that she may be visiting the children in Canada later this year.
The father says that his business commitments make it very difficult for him to travel to Canada during the children’s long mid year break. I am not sure the father can realistically maintain this position forever and he may need to put in place other arrangements for his business, so that the children spend time with him in Canada as well, but that is an issue for another day.
I appreciate these arrangements are inconvenient to the mother for a range of reasons, including the impact on her own business and income. However, she is not at risk of losing her position as a salaried employee. While I have sympathy for her in terms of the impact of these arrangements I will deal with that in terms of the length of time for the children to spend with their father during this school holiday period and the cost of travel.
I will order that the children spend time with the father for a period of three weeks during the Canadian summer school holidays to conclude no later than 24 August 2012 and to commence on a date to be agreed between the parties, taking into account the children’s school camps or other activities already arranged for the holiday period.
I will further order that the mother or her solicitors notify the father of those activities by the end of this week and provide written documentation in relation to same, including any school notices regarding school camps. In the event she fails to do so then the father is at liberty to proceed to book the travel arrangements on a date to be nominated by him in July 2012. In my view, this information could already have been provided by the mother, in light of the father’s application and he should have as much time as possible to make the bookings now.
I am satisfied that the children still need to be accompanied by an adult, given their ages and the length of the journey. Again, the late notice of this formal application leads me to conclude that the father should meet the cost of return airfares for the children and the mother.
I will order that during the children’s time in Australia the father shall return the children to the mother’s care each sixth day from 5.00 pm until 5.00 pm on the next day, with the children to be returned to the mother’s care no later than 5.00 pm on the day prior to their return flights to Canada, noting the father’s is prepared to concede such an arrangement for this holiday period.
Regarding a possible family assessment, I am reluctant to burden these children with interviews for a family assessment when this visit is only the second opportunity for them to spend time with their father in the last 18 months. I would prefer to see how this visit progresses. It may be that the dispute is not one that requires an assessment at all, at the end of the day. It may be that the parties simply need the Court’s direction about when and where the children will be spending time with their father and who is to pay the associated costs.
If the mother continues to raise concerns about the quality of the children’s relationship with their father, then a family assessment will be required but I am not going to make that order today.
Nor do I intend dealing with child support issues today. This matter was listed on an urgent basis purely and simply on the issue of travel during the forthcoming Canadian school holiday period.
While I appreciate every court hearing is a further expense to the parties, I will bring this matter back to consider how the children’s time with the father proceeded and then address the future management of this matter in terms of the children’s time with their father here and/or Canada, passport issues, child support issues and so on.
I have not specified whether handovers and flights should occur in Sydney. I would hope that despite the current difficulties the parties are able to engage in some sensible negotiations and adopt the most convenient arrangement in that regard.
I am not going to direct the parties attend for further dispute resolution with a family consultant, given that there have been extensive negotiations already. I will repeat paragraph 2 of the orders of 13 March 2012 such that the parties should be in a position on the next occasion to clarify the outstanding issues and make submissions in relation to the hearing, expert or other witnesses, the need for a family assessment, and so on.
I now make orders as published at the commencement of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Kelly FM

Date: 12 July 2012