FULTON & ROUSSEAU

[2010] FamCA 1264

FAMILY COURT OF AUSTRALIA

FULTON & ROUSSEAU [2010] FamCA 1264

FAMILY LAW - CHILDREN - Time child should spend with father during the long European school holidays between June and August each year - Amount of time child should be absent from Australia whilst spending time with mother overseas - Ability of each parent to be able to remove child from Australia for the purposes of having a short holiday overseas with the child  each year.

Family Law Act 1975 (Cth)

APPLICANT: Mr Filmer

RESPONDENT: Ms Roth

FILE NUMBER: SYC 4896 of 2008

DATE DELIVERED: 11 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 11 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Huntsman

SOLICITOR FOR THE RESPONDENT: Mr Cummings

Orders

1. In the June to August school holidays when M is not travelling overseas with the mother she is to spend time with the father as follows:

   (a)In 2011:

   (i)Two times five day blocks with not less than seven days between the blocks;

   (ii)Alternate weekends from Friday at 5pm to Sunday at 5pm; and

   (iii)In each second week from 5pm Wednesday to 9am Thursday.

   The alternate weekend time is not to be connected to the five day blocks.

   (b)In 2012:

   (i)Two times seven day blocks with not less than seven days between the blocks;

   (ii)Each alternate weekend from Friday 5pm to Monday 9am.

   (iii)Each Wednesday from 5pm until 9am Thursday.

   The alternate weekend is not to be connected to the seven day blocks.

   (c)In 2013 and thereafter, unless the parties agree otherwise, every second week of the holiday period.

2. The mother is permitted to remove M from Australia for the purpose of holidaying in North America for a period of not more than four weeks continuous time in 2011 and 2012 and for a period of not more than six weeks in 2013 and ever year thereafter.

3. That upon the mother returning to Australia with M from such overseas travel the mother is to ensure that M sees her father for an overnight visit not more than three days after the return and thereafter she is to have make up time with the father in the first two weekends after her return from overseas holiday with the mother.

4. The father is permitted to remove M from Australia for the purpose of overseas holiday in North America for four weeks in the years 2011 and 2012 and for six weeks in any year thereafter.

5. During the time M is overseas with a parent, that parent is to ensure that M has frequent contact with the other parent by telephone or Skype, if that be available.

6. Each parent is to do all things necessary to ensure M has a valid passport at all times.

7. All other orders relating to the time M is to spend with each parent are to be suspended during any time M is overseas with a parent.

8. Each parent is to give the other parent three months prior notice of intention to take M to North America as provided for in these orders.

9. Each parent may remove M from Australia during any period of school holidays, for the purpose of holidaying; during such time as M is scheduled to be with that parent during that school holiday period.

10. Each parent is to give the other parent eight weeks notice of an intention to take M outside Australia for the purpose of such a holiday. 

11. That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders

12. All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

NOTATIONS:

(A)The Court notes that the mother has indicated that she will probably travel with M to Canada in the June to August school holiday period in most years. She may elect in about every third year to travel at Christmas time rather than in the June to August school holiday period. The court notes that the father has indicated that when he travels to Canada with M, it will probably be in the September to October school holidays. He anticipates travelling about every third year with his first trip planned for 2011.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 4896 of 2008

Mr Filmer

Applicant

And

Ms Roth

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between the parents, Mr Filmer, the father, born in 1974, currently 36 years of age;  he is employed as an accountant;  and the mother, Ms Roth, born in 1974, 35 years of age;  she is a self-employed health professional, working part time.  The mother lives at C.  The father lives at D.  They have one child, M Filmer-Roth, born in February 2007, and she is 3 years of age. The parties’ relationship commenced in about August 2002 and separation occurred in about May 2008.  Shortly following the birth of the child, the mother was diagnosed with cancer and underwent a number of operations and procedures. 

2. She is currently in remission, however, there is a family history which she has to live with, and that is her mother died from cancer shortly before the child was born.  The parties attended before me for a First Day LAT in April 2010.  A family report was prepared and released in June 2010, and then on 7 September 2010, I made consent orders which are very detailed and which provide for the child to predominantly live with her mother, and spend time with her father in a graduating process over the next few years.  Both parents are supportive of the child being bilingual and she is to attend a French school commencing with her formal education later next year. Until that time she will attend a pre-school associated with the French School. 

3. Having agreed to the vast majority of formerly contested issues relating to the child’s care, there remain a few matters which needed to be determined.  The parties were unable to agree on these matters.  They are not extensive but can be broadly categorised under three headings:

   a)The time the child should spend with her father during the long French school vacation between June and August each year;

   b)The duration of time that the child should be absent from Australia whilst spending time with her mother in North America;

   c)The ability of each of the parents to be able to remove the child from Australia for the purposes of having a short holiday overseas with her. 

Mother’s Proposal for time with the child during School Holiday Time

1. The mother’s proposal was contained in a minute which I will mark as Exhibit A. She seeks a gradual progression of the time that the child would spend with her father during the June to August school holidays, commencing in 2011 and in 2016 reaching a point where the child would spend half of the school holiday period with her father.  The progression sees the child with her father for two five-day blocks in the 2011 holidays.  Those blocks are to be spread between the first half and the second half of the school holidays.  Two three-day blocks are to be taken on week days.  One such block in the first half of the holidays, the other block in the second half of the holidays.  And the father is to give the mother 30 days notice of the dates during which he intends to exercise time with the child. In 2012, that progresses to two six-day blocks.  Two three-day blocks in 2013 progresses to two seven-day blocks and one three-day block.  In 2014, the time progress to fourteen nights in the first half of those holidays and in 2015 the time progresses to fourteen nights in the second half of the holidays. Finally, in 2016 the mother proposes that the child spend half of the school holidays with her father.

Father’s Proposal for time with the child during School Holiday Time

1. The father’s proposal is contained in a minute which I will mark as Exhibit B.  He seeks to spend time with the child in the first two weeks of the New South Wales July school holidays, and, otherwise as if the orders of 7 September 2010, relating to the time he spends with her during school term time, were to continue.

2. Other aspects of the time that he seeks with the child, during this period, are related to travel to Canada.  The determination of this dispute is not easy, which is trite to say; no doubt if it was, the parties would not be asking me to determine it because there are a number of factors which really are associated with the mother’s health, her isolation from Canada, and the trauma which she has suffered as a result of cancer operations which she has undertaken.  The family report describes a good and close relationship between the child and each of her parents. I particularly noted that when the family consultant observed the parents with the child, she had arrived with her mother and had basically been seeking to stay in very close proximity with her mother until she saw her father arrive, at which time she became excited and sought his attention and presence. 

3. It is a marvellous accolade to the parents that in the height of conflict, they have been able to create an environment which allowed the child to react in the way in which it is reported.  However, there was a sting in the tail, not for the parents but a word of caution to them, which the family consultant felt that the child had perhaps cut herself off from the parental conflict and was, to some extent, in a state of denial.  Consequently, there was a recommendation that the parents attend upon Unifam, and I am pleased to hear today that the parents are pursing that avenue.  Taking all those matters in account, I consider that the progress of time which the child should spend with her father during the June to August school holidays, whilst the child is in Australia, should be a little faster than the mother was seeking but, nonetheless commensurate with what I consider she would be comfortable with. 

4. I propose the child spend two five-day blocks with her father in 2011, with not less than seven days between those blocks.  In addition to that, she has alternate weekends from Friday, 5 pm to 5 pm on Sunday; and then each second Wednesday from 5 pm, overnight, until 9 am Thursday.  The alternate weekend time is not to be connected to the five-day blocks.  In 2012 I consider that can progress to two lots of seven-day blocks, again with not less than seven days between the blocks.  Each alternate weekend, Friday, 5pm, through to Monday, 9 am.  Each Wednesday, 5.00 until 9.00 on Thursday.  The alternate weekends not to be connected to the five-day blocks.  In 2013, and thereafter, unless the parties agree otherwise, the child should be with her father every second week of the holidays.

5. In reaching that decision, I have had regard to the timetable which the parties have put in place for the child to spend with her father during school term time.  I do not consider the order I am proposing to make will cause her anxiety.  I am also comforted, in making these orders, by the degree of sensitivity which I have observed in each of the mother and father today. I am satisfied that neither of the parents would allow the child to become distressed as a result of not having contact with the other parent. Should that occur I am confident they will act appropriately and in her best interest.  I now turn to the travel to Canada.

Travel to Canada

1. The parameters here are that the mother proposes she should be able to take the child to Canada for up to six weeks in any one year.  By way of evidence and submission, she says this would be predominantly during the long school break in June/August, and perhaps every third year it may be at Christmas time rather than in the middle of the year.  The father is opposed to a six week absence from face to face contact with him, and presses for a four week period as a maximum. 

2. The mother’s argument in support of six weeks is that it is a long way to go, it is expensive to travel, she has effectively abandoned her desire to return to live in Canada for the sake of the child being able to have frequent and appropriate time with her father. The mother says she is isolated in Australia, her family is in Canada, the impact of air travel is such that effective relationship time is lost in the early part of any holiday period in Canada as the mother and the child recover from jet lag and therefore the mother submits that six weeks is an acceptable and appropriate time.

3. She considers that a six week absence from the father is not going to adversely impact on the child’s relationship with the father, the nature of it, or in any other respect. Whilst holidaying in North America, the mother will provide for frequent contact between the father and the child, including Skype contact.  Additionally, in support of the time she would spend in North America, the mother says she would not necessarily be in one place all the time, that it may involve travel to see other relatives in the United States of America, as well as in Canada.  The father’s argument is that six weeks is too long a period of time, given the child’s age, for her to spend with no face to face contact with him.

4. The father concedes as the child gets older then a longer period of time is appropriate.  However, as I understand his submissions and his evidence, he would think that somewhere around about the age of 10 would be the earliest at which the child might spend six weeks away from him.  For my part, I consider the following matters as very important:

   a)The nature of contact between a parent and a child via Skype, whilst good, does not compare with the benefits that flow between a parent and child from face to face time.

   b)The child’s wellbeing and welfare is intricately connected with the wellbeing and welfare of each of her parents.  At this time that connection is probably stronger with her mother than her father. 

5. A decision which impacts adversely on either parent is likely to have repercussions for the child.  I consider that, as the child gets older, the impact of travel duration difficulties, commonly called jet lag, are likely to lessen.  I consider that, in the scheme of things, a four week time, as opposed to a six weeks time in Canada, will enable the mother to renew her acquaintances with close family and friends and, of course, to introduce the child to those family and friends.  The other important aspect for the mother of spending time in Canada is to immerse the child into an entirely French speaking environment and thus improve her French. I consider a 4 week block at this age would allow such immersion

6. The parents seem to me to be doing as much as can reasonably be expected to be done in order to allow the enhancement of the child’s French education and connection.  Attending the French school will immerse her in a French speaking environment very significantly.  An additional period of four weeks a year in a totally French environment is no doubt something of a significant advantage, but I fail to see that an additional two weeks is going to make an important difference one way or the other.  I would consider that in 2013, and thereafter, the additional two years development of the child will make a significant difference to her being able to tolerate additional time away from a parent and I would consider that in the year 2013, and thereafter, she will be able to tolerate a six week trip to Canada, or North America. I propose to so order.

7. Upon her return to Australia, after spending time with her mother overseas, the child should see her father, have face to face time with him – perhaps not longer than three days after return –  and that each party proposes that the first two weekends, after her return. I note each party agreed she should spend time with her father in the nature of make-up time.  What is good for the goose is good for the gander.  The father’s ability to take the child to Canada should likewise be limited to four weeks in the years 2011 and 2012, and six weeks in any years thereafter.  During any time which the child is overseas with a parent, that parent is to be responsible for ensuring that the child has frequent contact with the absent parent by phone and/or Skype, if that is available.

8. The parties agree the child’s passport should be kept as a valid passport, and I propose to make an order in relation to that. Each parent should be able to remove the child from Australia, for the purposes of a holiday overseas of a shorter nature, perhaps during the other school holiday periods that the parents are sharing, and, in such circumstances, three months prior notice should be given to the other parent of intention to so remove.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 11 October 2010.

Associate: 

Date:  10 March 2011