R and R
[2003] FMCAfam 42
•3 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & R | [2003] FMCA fam 42 |
| CHILDREN – Interim arrangements for care pending final hearing – mother wishing to travel overseas for holiday – matters to be considered. Kuebler & Kuebler (1978) FLC 90-434 |
| Applicant: | C F R |
| Respondent: | J M R |
| File No: | DNM2208 of 2002 |
| Delivered on: | 3 February 2003 |
| Delivered at: | Alice Springs |
| Hearing Date: | 3 February 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| The Applicant in person: | Mr C R |
| The Respondent in person: | Ms J R |
ORDERS
The child of the marriage, E J R, born 31 October 1998 live with the mother.
The father have contact with the child as follows:
(a)From after pre-school on Friday until 4 p.m. the following Saturday;
(b)From after pre-school on Tuesday until the commencement of pre-school the following Wednesday;
(c)At any other times as agreed between the parties.
That the mother be permitted to travel outside the Commonwealth of Australia between 9 February 2003 and 26 March 2003, notwithstanding the permission of the father has not been first obtained on the following conditions:
(a)That she provide the husband with an itinerary setting out details of all flights that will be undertaken by the said child, such details to include the flight numbers and the times of departure and of arrival of each flight;
(b)That she provide details to the husband of all addresses at which the child will be staying during such travel together with the dates between which the child will be staying at such addresses and telephone numbers on which the child maybe contacted at such addresses;
(c)That the husband have contact to the child during the period he is away from Alice Springs on three occasions each week by telephone with the mother to instigate the telephone call to the father at a telephone number to be provided to her by the husband.
That the orders for contact in order (2) be suspended whilst the mother is absent from Alice Springs pursuant to order (3) hereof and during pre-school holidays.
That in the event that the mother fails to return the said child to Alice Springs by 23 March 2003 the respondent father has leave to apply to the Court to seek assignment to him of an interest in the mother's real property in either Alice Springs or Tennant Creek equal to an amount of $10,000.
That the father have contact to the said child for half of the Easter break and for one week in the mid year pre-school holiday.
FEDERAL MAGISTRATES |
DNM2208 of 2002
| C F R |
Applicant
And
| J M R |
Respondent
REASONS FOR JUDGMENT
This morning I have an application that is brought by C F R. The respondent to the application is J M R. They are the parents of one child, E J R, who was born on 31 October 1998. At the moment E is four years and three months old. These reasons are ex tempore reasons and provided at the request of Mr R.
I am going to refer to Mr R as the father in these reasons and to Ms R as the mother.
The father is the applicant in the proceedings. He filed an application in this Court on 26 November of last year. He seeks both interim and final orders in respect of arrangements for E's care. He seeks the same orders on both an interim and a final basis. Essentially what he says is appropriate for E is that he should spend four nights each week with his mother and the remaining three nights with him. He also seeks some orders in respect of holidays with E. He wants to have six weeks holiday with E per year, which is subject to certain conditions.
In support of his application filed on 26 November, he filed an affidavit to which I will return in a moment. The application was given a return date of 6 January, however on that date the matter did not proceed as the father was away from Alice Springs and was, in fact, on holiday, as I understand it, in Tasmania with E. For that reason the matter was adjourned until today.
In the meantime, the mother has filed a response to the application. She did that on 28 January 2003. On both an interim and final basis she seeks that E should live with her for six nights each week and that the father should have contact with E one weekend night and day per week and for two other evenings during the week from after daycare or after school until 7.00pm that evening. She also proposes that the father have six weeks of holiday contact with E each year and that she have up to 10 weeks of holiday per year.
It is in the context of holiday contact or in respect of the issue of E travelling that I have to make a decision as a matter of urgency today.
The mother wishes to be able to take E with her from 9 February 2003 until 26 March 2003 to the United States. In another application that was filed this morning by fax the father opposes that application. He has put forward a number of other proposals but essentially he says that it is not appropriate for E to leave Australia until December of 2003. He proposes that in the meantime the mother have a holiday with E somewhere in Australia of three weeks duration.
I think at this juncture it is important that I point out to the parties the nature of these interim proceedings. In many ways they are unsatisfactory. They are unsatisfactory for the parties and they are unsatisfactory for the Court. Both the father and the mother are in Alice Springs. I am in Darwin. We are communicating on the telephone. I cannot see either of the parties and obviously they cannot see me. There is something unnatural about an important matter such as this one being decided on the telephone.
I appreciate that it is alienating for all concerned, however due to the urgency of the mother's application there is no other way in which the matter can be dealt with. It has to be dealt with on the telephone.
The other thing is that the proceedings are interim proceedings. I have not seen either of the parties in the witness box and, most importantly, I have not seen either of them being tested by the other in respect of what they say in their affidavit material. There has been no cross-examination. Where there are matters of dispute between the parties, it is difficult for me to resolve the matters that are in dispute between them because I have not seen either of the parties in the witness box and therefore I cannot make any real assessment of what sort of people they are, and where there is a dispute between them, whether one of them is telling the truth or not.
Perhaps of the greatest importance in a case such as this one, I have not got any independent expert assessment of E and the nature of his relationship with either his mother or his father. It is usual in cases concerning children for reports to be prepared, which detail the observations of a suitably qualified person, such as a psychologist, who has an opportunity to see the parties with the child concerned and make some assessment of the nature of the relationship between each of the child's parents and the child and also make some assessment of the parenting strengths and weaknesses of both the mother or the father.
That report and the cross-examination and the testing of all the evidence in this matter, must await the final hearing of the matter and, at this stage, I am going to fix the matter for final hearing in August of this year.
The parties will appreciate that the task I have to do today is to construct some orders that will hold matters until there can be a final hearing, which will be about seven months away. In determining what orders I should make until August, I have to bear in mind that E's best interests are my paramount concern.
In deciding what is likely to be in E's best interests, ordinarily, I should make orders which ensure that arrangements for his care are as stable as possible. Ordinarily such stability is provided for the child concerned by continuing existing care arrangement, unless there is a very strong or compelling reason to do with the child’s safety or welfare that makes it appropriate for the Court to depart from that existing arrangement.
Having read the affidavits that each of the parties prepared, it is very clear to me that both of them love E very much and have E's best interests very much to the forefront of their respective hearts.
I have absolutely no doubt about that.
It seems to me that since they separated and I should point out that they were married in June of 1996 and separated in October of 2000, which is now some two years ago, they have endeavoured to arrange matters for E's care without the intervention of any persons apart from themselves, although there has been, it seems, extensive mediation between them.
As a result, there have been no previous orders in respect of E's care, as to date the parties have been able to agree, between themselves, as to how E should be cared for. I am dealing with two people who are concerned parents. It also seems to me that each of them has had a substantial input into E's care.
The father has been acting on his own behalf and has prepared his own material in support of his position. He has been very frank, I think, in respect of difficulties that he has had in the past. These difficulties include severe alcohol and drug problems that have rendered him incapable of caring for E in the past. However, it is his position that for the last period of time, he has been having contact with E overnight on three occasions per week.
The mother does not disagree with that, however it is her position that she agreed to such frequent contact only in the context of E being a child who was young and because of his age, it was of benefit to E to have frequent periods of contact with his father, so that he could develop a strong relationship with his father. It is now her position that due to tensions between the parties, there is a possibility that E will be drawn into the growing dispute between his parents and that this maybe emotionally harmful for him in both the short and the long run.
She also thinks that at the present time there are very great differences in the way the parties approach the task of parenting and that, as a result, there is an inconsistency between the parenting and home environments of the parties, and that because of that considerable difference, it is better than E lives predominantly with one of his parents rather than the other. She believes that a shared care arrangement for E is not appropriate at this stage. She argues that the father’s proposal amounts to a shared care arrangement, which is not currently working under the existing arrangements.
She has also raised concerns about the father's use of alcohol and other drugs, both illicit and prescription drugs, which she says are a cause for concern at the moment. As I say the father does not resile from the fact that he has suffered from alcoholism in the past but he asserts that he is now recovered.
They are the broader issues. I also have to determine whether it is appropriate and likely to be in E's best interests to travel overseas to the United States from Sunday of next week.
It is clear and there is no argument between the parties, that the mother has important family connections in the United States. She is a person who was born in the United States and her parents, E's maternal grandparents, also live in the United States. The mother wants to be able to take E with her on holidays for six weeks. The main purpose of this holiday is for E to see his maternal grandparents and also to visit Disney Land and have a holiday.
The father opposes this trip. Essentially, what he says is that it is not in E's best interests for him to travel away from his home in Alice Springs. He says that at the present time, due to the conflict between the parties, E is not emotionally robust enough to travel. In addition, the father has great fears that the good relationship between him and E, will be disrupted if E goes away from Alice Springs for six weeks. He is frightened that he will lose contact with E and E will suffer some emotional detriment as a result. He also has concerns about the current unstable world situation due to fears of conflict between the United States and Iraq and potentially other countries, and particularly the possibility of terrorist attacks in the United States. Also, he is fearful that, because of the mother's strong connections with the United States, there is the real possibility that she will not return to Alice Springs, as she has said she will.
It is of course of concern to me that I have to decide this application only days before the proposed travel. As I have already indicated, the mother filed her material in respect of this matter only a few days ago. However, it is her position that she was compelled to do this, because prior to this time, she thought she had the verbal permission of the father to travel. As such she did not think her proposed trip was an issue.
In this context, it is of importance that I indicate that E is a child who has travelled on several occasions between Australia and the United States. The father concedes this. It is not the case that this will be a new experience for E and it is not the case that the father has not, in the past, consented to E travelling outside of Australia. I accept what I am told by the mother that E has travelled on five occasions to the United States and this includes one occasion when he travelled without his mother. It is also of importance that I indicate that E's maternal grandparents have travelled to this country on at least one occasion.
It is the mother's case that the last time E travelled outside of Australia to the United States was in August of 2002. On that occasion it was a three-week trip. It is clear to me that E is familiar with overseas travel in general and to the United States in particular. His last trip with his mother to the United States was comparatively recent.
In her submissions to me, the mother indicated that E is anxious to go on this trip and wants to see his maternal grandparents. Given the number of times he has travelled to the United States, and the one occasion his maternal grandparents have visited him in this country, it seems to me that I can accept that, notwithstanding the great distance between Alice Springs and the United States, E enjoys a reasonably close relationship with his maternal grandparents. I also accept that E talks with his maternal grandparents on the telephone on a reasonably frequent basis.
In summary, this is not an untested type of travel for E and it is also clear to me that, in the past, E has been away from his father for reasonably lengthy periods of time. I also bear in mind E's age of four years and three months and it seems to me that, although these are interim proceedings, I can reach the conclusion that it is unlikely that E's sense of having a father and having a relationship with his father, is on balance, likely to be broken during a period of time of six weeks when it is proposed that E is away from Alice Springs.
As I say, I have to decide this matter in the context of the Family Law Act. The overriding principle is that I should not make any orders unless I think they are in E's best interests. However, I also have to bear in mind that children have a right to have contact on a regular basis with both their parents and with other people who are significant to their care, welfare and development. In this context I regard the relationship that E has with his maternal grandparents as being significant to his care, welfare and development.
From time to time the Full Court of the Family Court has considered what sort of matters should be taken into account in determining whether one parent should be entitled to take a child outside of Australia and what conditions, if any, should apply to such travel. In Kuebler & Kuebler (1978) FLC 90-434, the Full Court of the Family Court considered that the considerations that should be given to applications of this kind are as follows:
(a)The length of the proposed stay out of the jurisdiction;
(b)The bona fides of the application;
(c)The effect on the child of any deprivation of contact;
(d)Any threat to the welfare of the child by the circumstances of the proposed environment;
(e)The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
In this case the mother wishes to go for a period of six weeks. She has been out of Australia with E for previous visits of between three and six weeks. Given E's age at the present time of four years and three months, I do not believe that it is likely that this will be particularly disruptive to E. However, in this regard, I note that E is due to start pre-school. I accept that starting pre-school is an important milestone in any child's life, however I also accept what the mother told me, that is, that she has discussed the trip with E's pre-school teacher and that the teacher is of the view that the mother can sensitively manage with her, E’s reintegration into pre-school when he returns.
I think it is also important that the trip has not been sprung out of the blue on the father and that there has been some previous discussion about it. I accept that there has been previous discussion about it between the parties. The mother has brought tickets for the travel and that being so, I do not think that she would have bought the tickets, if she was acting completely unilaterally of the father.
I also have to consider the bona fides of mother's application. I think in this context it is important that I bear in mind that there have been previous periods of travel to the United States and that the mother has a very valid and good reason for wanting to travel there. That is to see her parents and for E to see his maternal grandparents. These do not seem to me to be spurious reasons. In the past the mother has travelled to the United States with E and has always returned as scheduled.
I have already dealt with I think are the likely consequences for E of any deprivation of contact with his father. I appreciate that I have not heard the father give evidence in the witness box and I have to deal with the matter on an ad hoc basis, balancing the inconvenience to the mother of preventing the trip, against any potential for harm for E of the trip itself. I accept E's best interests are my most important concern. There are benefits to E of such a trip. He will see his grandparents, he will have a holiday, he will go to Disney Land. He is looking forward to the trip. He will not see his father for six weeks. However, this does not seem to me to be a case where E's relationship with his father will be unduly jeopardised. The period does not seem to me to be long enough to have the potential to cause serious disruption to the relationship.
True it is that there is a great deal of conflict between the parties at the present time. I do not think taking E away from that is necessarily going to do him any great harm. I also have to think of any threats to the welfare of the child posed by the environment in which he will be travelling. I do not have a crystal ball about world events, nor do either of the parties. I accept that the world is in a state of flux at the present time. However, I do not think balancing all the factors that are present in this case, that it would be appropriate to keep E in Alice Springs because of uncertainty about the world situation. Without wishing to appear trite and obvious, many hundreds of thousands of people currently travel the globe by air every day of the week. I appreciate that as a loving and concerned parent, the father is concerned about E and has some fears, but I think those fears have to be placed in perspective.
Finally, I have to be satisfied about whether the mother will return to this country. She owns two pieces of real estate in the Northern Territory. She has employment in the Northern Territory. I accept she has return tickets to Australia. The various states of the United States are each signatories to the Hague Convention, which deals with relations and obligations between the various signatories to it concerning children who are abducted and taken overseas. In the event that the mother does not return to Australia, the father will be able to have access to the services of the Attorney-General's Department to commence proceedings in the United States for the child to be returned. However, I do not believe, given the number of times the mother has travelled to the United States and returned that the risk of her not returning is a great one. However, I propose making some orders that will enable the father to seek execution against the mother's real property, in the event that she does not honour her promise to return to Australia by 23 March.
On balance, I think it will be in E's best interests to have the trip that the mother seeks. Chiefly, it will enable E to have contact with his maternal grandparents and I accept that E knows about the trip and will be disappointed if it does not take place.
I believe that there can be contact between E and his father whilst E is outside of Australia. The father has thought about video cameras. The time for such cameras to be installed is short. It seems to me that E is used, even at his tender age, to travelling overseas and keeping in contact with his father and, indeed with his mother, by telephone. As a result I am going to make an order that whilst the mother is outside of the jurisdiction with E there be contact on at least three occasions each week and by other means and at other times as the parties may agree from time to time.
The father is entitled to know exactly where E will be and to be provided with an itinerary and details of flights and also with copies of the return air tickets, and I am going to make orders to that effect.
I also have to consider what are the appropriate arrangements for E when he returns to Alice Springs in March. It is clear to me that both parties are concerned parents. They are in dispute as to what is likely to be in E's best interests in both the short and the long term. It seems to be that an arrangement has come about whereby E has had reasonably frequent overnight contact with his father. It is the mother's position that that is unsettling for E and should be scaled back.
As I have indicated to the parties, I am not in the position at this stage to determine precisely what is likely to be in E's best regards in this respect in the long run. I am dealing with arrangements in the short term. There is a great deal of dispute between the parties as to what is likely to be in E’s best interests in both the short and long term. The mother’s position is that the current arrangement is unsettling for him. She is critical of what she perceives as the father’s emotional instability and potential for drug abuse. The father’s position is that the parties should have a shared care arrangement for E and that, for her own ulterior motives, the mother is wishing to reduce his contact to E. I am not in a position today to definitively resolve these issues. I think it important that a report should be commissioned at this stage to address the degree of attachment of E to both his parents and whether a joint care arrangement is feasible and likely to be in E’s best interests.
As I have said I am going to fix this matter for hearing in August. The report will be ready for this final hearing. In the meantime I think it would not be appropriate to unduly scale back the father’s current level of overnight contact. In my view there is no definitive evidence that this arrangement is causing E any emotional harm. Although the mother asserts that the arrangement has been foisted upon her by the father, it seems that the arrangement whereby E has regular overnight contact with his father is comparatively long standing. I believe that it is likely to be in E’s best interest that he continue to have regular overnight contact with his father.
The parties are in dispute about whether there should be a shared care arrangement. Shared care arrangements usually work where the parties have an easy relationship with each other, have a similar ethos in respect of parenting matters and live in reasonable proximity to one another. Usually parents who are likely to be able to agree on a joint parenting arrangement do not have to come to Court to seek orders to that effect. Shared parenting arrangements have an ethos that is based on trust and empathy. At this stage, I do not think there is a great deal of trust or empathy between the parties in these proceedings. Sadly this is not the case, although I hope, with time, they maybe able to share more easily responsibility for making decisions about E.
The father has said he thinks that a great deal of the tension will go out of this matter if there are specific orders in respect of arrangement for the care of E and by that, I think, he means that there should be specific times at which he has contact to E.
There is a deal of uncertainty about the proposals of each of the parties in terms of the specific times for contact. The father says that there should just be contact three nights per week. E will be going to pre-school soon and in the past I understand the father has had contact on Monday, Wednesday and Saturday nights. The mother's position is that it should be contact on one weekend night and day per week and on two other evenings during the week, from after pre-school until about 7.00pm. She does not specify the exact evenings concerned.
There seems to have been a certain amount of tension between the parties as to where E should be exchanged for contact. I think it is important that E be insulated from the dispute between his parents as much as possible. This is a factor that militates against the frequent number of change-overs that both the mother’s and father’s proposals entail. I also should bear in mind that I am only making orders for the next few months or so, although I appreciate that that is likely to be a time that is of great significance to the parties themselves. I often tell people to concentrate on the quality of their relationship with their children, rather than quantity. I think at this stage that E is likely to benefit from living predominantly more with one parent than the other.
As a result I have reached the view that the arrangement that is most likely to provide stability for E pending final hearing is one where he continues to have regular mid week and weekend contact with his father, such contact to include overnight contact but at all other times that he should live with his mother. This arrangement will ensure E maintains his bond with both his parents.
The report that I am going to order will address the attachment of E with his parents and whether the regime I am going to order today is unduly disruptive. It is regrettable, in many ways, that it falls to me to make these decisions about E. As I said at the outset, I accept that both his parents are loving parents and are very concerned about him. It is clear, I think, that each acknowledges that E has a significant relationship with the other parent. I do not get the impression that one parent wants to severe the relationship between E and his other parent. It is rather they have a different view as to what is likely to be in E's best interest. That is often the case.
I am going to after these orders have been made, refer the parties back to further mediation. Although the matter will be fixed for further adjudication in August, it is still open to the parties to reach agreement as to what is likely to be in E's best interests between themselves.
I think it would also be prudent for each of the parties to seek legal advice in respect of this matter, although that is a matter that is entirely up to them.
I am going to fix the matter for final hearing on 14 and 15 August 2003 at Alice Springs. I am going to direct that each party file all affidavits of evidence on which they propose to rely and serve the other party with those affidavits by 4 p.m. on 17 July 2003.
I am going to direct that a family report be prepared in this matter, which report is to be released to the parties on or before 30 June 2003 and that the matter be listed for further mention at 10.30 on 7 July 2003. I am going to refer the parties to further mediation on a date to be advised to each of them. Otherwise the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 20 February 2003
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