T and T
[2001] FMCAfam 224
•26 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & T | [2001] FMCAfam 224 |
| FAMILY LAW – Children – Interim contact – Mother living in Armenia – Mother ordered to bring child to Australia for the purpose of interim contact – Family Law Act 1975 (Cth) s65D. |
| Applicant: | A T |
| Respondent: | R T |
| File No: | ZP3101 of 2001 |
| Delivered on: | 26 October 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 22 October 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant | Mr R Benjamin |
| Solicitors for the Applicant: | Watts McCray, Lawyers Level 15, 370 Pitt Street SYDNEY NSW 2000 DX 11517 SYDNEY DOWNTOWN |
| Solicitor Advocate for the Respondent: | Mr S Cuddy |
| Solicitors for the Respondent: | Stewart Cuddy & Mockler Lawyers |
ORDERS PENDING FURTHER ORDER
That the child K A T born 5 March 2000 (“the child”) have interim contact with the husband as follows:
(a)Two days in each week from 9.00am until 5.00pm, which days are agreed by the parties.
(b)In the event that the parties are unable to agree, contact shall take place on Wednesdays and Saturdays.
(c)At such additional times as the parties may agree.
That such contact commence 2 March 2002.
That subject to Order 4 of these orders the Wife do all things necessary to return the child to Sydney in the Commonwealth of Australia no later than 28 February 2002.
That the contact ordered pursuant to these orders is conditional upon the following:
(a)That the husband provide to the wife air tickets for travel by the wife and child from Armenia to Australia which airline tickets are to be made available to the wife's solicitors no later than four weeks prior to her planned arrival in Australia.
(b)That no later than two weeks prior to her planned arrival in Australia, the husband’s solicitors provide to the wife’s solicitors written confirmation that upon her arrival in Australia the wife will have available to her each of the following:
(i)A two bedroom home unit furnished for the exclusive use by the wife and child;
(ii)Which unit is to be provided to the wife without cost to her; and
(iii)Is situated within five kilometres of the former matrimonial home at Hornsby Heights.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP3101 of 2001
| A T |
Applicant
And
| R T |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings relate to interim contact orders to K A T born
5 March 2000 (“the child”).
The application
A T (“the husband”) filed an application for final orders on
11 September 2001. At the first court hearing he was given leave to make an oral application for interim parenting orders. The orders sought by him were:
(a)That the child K A T born 5 March 2000 (“the child”) have contact with the husband each Saturday and Wednesday from 9.00am to 5.00pm.
(b)That such contact take place in the Sydney metropolitan area and that the wife deliver the child to the home of the husband and collect the child from the home of the husband.
(c)Such contact to commence Saturday 22 December 2001 and until further order.
(d)Consequential orders that:
(i)The husband provide to the wife air tickets from Armenia to Australia for both the wife and the child.
(ii)That the husband provide for the wife, upon her arrival in Sydney, a two bedroom home unit furnished for the sue of the wife and the child pending further order, such unit to be either rented or purchased or borrowed and situated within five kilometres of the home at Hornsby Heights.
(iii)The wife return to Australia with the child on or before 21 December 2001.[1]
[1] Exhibit A
In essence, he proposes that the mother bring the child with her when she travels to Australia for the purposes of the final hearing scheduled for 11 and 12 March 2002. Thus contact could take place whilst the child is in Australia. In the event the husband is successful in his application for residence, those orders could be given effect to with less disruption to the child than were she to remain in Armenia. In the event mother succeeds in her residence application and returns with the child to Armenia, the child will have had an opportunity for contact she may not otherwise have.
The mother opposes the application for interim orders. She sought an order that the interim application be dismissed.
The evidence
The husband relied on his affidavit sworn 10 September 2001 and filed 11 September 2001.
The mother relied on her affidavit sworn 17 October 2001 and filed
22 October 2001.
Relevant facts
The husband was born on 9 October 1966 in Australia. The wife was born on 5 October 1970 in Armenia. They married on 18 March 1993. The parties separated on 8 September 2000. On 22 October 2001 a decree nisi dissolving their marriage was ordered.
There is one child of their marriage K A T born 5 March 2000. The mother and child live in Armenia and have done so since separation.
The wife first came to Australia as a tourist in August 1992. She left Australia in September 1992 when she and the husband travelled together to Armenia so that the husband could meet her family. One month later the husband returned to Australia and made arrangements for the wife to return to Australia under a fiancee sponsorship visa. She returned to Australia on 20 February 1993. They participated in a civil wedding in March 1993 and a church wedding in December 1993. Between those times the parties lived with the husband’s parents.
The parties lived with the husband’s parents for about three years. They then moved into their own home at Hornsby Heights. After K was born the wife remained at home to care for the child. The husband took a period of recreation leave and then returned to his work as a director in his husband’s printing business. He worked at least between 8.00am and 6.00pm, Monday to Friday. The parties disagree about the time he spent at work in the evenings, a matter I cannot adjudicate at this time.
The mother became homesick and the parties planned a trip to Armenia that would enable the wife to see her family and for the child to be christened. Airline tickets issued that provided for the parties and child to travel to Armenia on 8 August 2000. The husband was to return on 8 September 2000 and the wife and child to return to Australia on 31 October 2000. After they had left Australia the wife advised the husband that she planned to stay longer in Armenia. For the first time she intimated that their marriage may be at an end. The wife declined to return to Australia and the husband left without either the wife or the child.
The wife and child have remained in Armenia. The husband has not seen the child since he returned to Australia in September 2000.
The husband’s current circumstances
The husband is in good health and is a director in a family printing business. He has a close relationship with his family, sharing an Armenian heritage. He lives in the former matrimonial home at Hornsby Heights. His working hours are flexible and if contact were ordered I am satisfied he would be able to make arrangements to ensure that he cared for the child during contact.
The wife’s current circumstances
The wife lives with her parents and brother at Yerevan. Yerevan is the capital of Armenia. The wife is employed as an executive assistant, working 40 hours per week. Her place of employment is close to her home, only five kilometres away. While she is at work the wife’s parents care for the child. The wife and child are in good health. Since separation the wife has received approximately $US1,910 by way of child support from the husband. The wife proposes, on a final basis, that contact take place between the child and the husband in Armenia whilst the child is young. Relevantly she proposes contact to take place between 9.00am and 5.00pm.
The relevant law
Interim parenting proceedings do not determine the long term rights and obligations of the parties and their children. Accordingly, the Court should not ordinarily be drawn into matters of contentious matters of fact, or matters relating to the substantive merits of each party’s case.
The principles that determine the adjudication of interim parenting matters are reflected in a long line of authority; most recently stated in Cowling and Cowling[2]. The Full Court of the Family Court there identified a five-element process for the determination of interim proceedings for residence and contact.
[2] (1998) FLC 92-801
Firstly, the overriding principle is that the best interests of the child are the paramount consideration.
Next, given the circumscribed nature of interim proceedings, the orders made should maintain and promote stability in the child’s life pending the final determination.
Next, where it is clear that the child is living in a well settled environment, the child’s stability will usually be promoted by continuing these current arrangements. If the evidence establishes there are strong or overriding reasons relevant to the child’s welfare whereby in that environment the child will be at risk, then the court should not make an order that leaves the child in a situation of serious risk. In deciding whether a child is living in a settled environment, the court should examine and assess,
(a)the wishes, age and level of maturity of the child;
(b)the current and proposed arrangements for the day to day care of the child;
(c)the period during which the child has lived in the environment;
(d)whether the child has any siblings and where they reside;
(e)the nature of the relationship between the child, each parent, any other significant adult and his or her siblings; and
(f)the educational needs of the child.
Next, the weight given to the importance of the current living arrangements is to be determined by reference to the interests of the particular child. In deciding what weight should be given to the current status quo, the court may examine the circumstances by which the current status quo has been attained, the duration of the current arrangements and delay. This list is not exhaustive.
The court will undertake a limited evaluation of the matters set out in Section 68F(2) of the Family Law Act in circumstances where the evidence does not establish that the child is living in a settled environment. Cowling and Cowling (supra).
Conclusion
From the child’s perspective she is living in a well settled environment. She lives with her mother and has done all of her life. The husband does not assert, that prior to her departure from Australia the wife's care of the child was such that the child’s welfare was then or is now at risk . Nor indeed, pending a final hearing, does he challenge the child’s continued residence with the wife. Rather, the issue goes to the contact the child should have with the husband prior to the final hearing.
It has been eleven months since the child saw the husband. The child was six months when they last met. That length of time apart may well have materially influenced the quality of the child’s relationship with the husband. During the first six months of their lives, children form attachments to their primary carers. Those attachments are enduring, but are unlikely to survive in a meaningful way unless reinforced by contact on a reasonable basis.
If the wife is successful in her primary application for parenting orders she will have residence of the child and with the child shall return to Armenia. The husband’s life is in Australia. There is no evidence that indicates that he proposes to relocate to Armenia. There is no evidence that he would be able to travel to Armenia in the reasonably proximate future, even beyond the completion of the final hearing, to exercise contact. Thus, the orders sought by the husband give the child the opportunity for contact with him that may not be available to the child and husband for months or even longer beyond the trial dates. The longer the period of time that passes between the child seeing the husband and the resumption of some contact the greater stress their relationship, from at least the child’s perspective, will be under.
Making an order for contact coincidental with the wife’s trip to Australia, will disrupt the child’s current routine. Thus, she will be separated for some weeks from her maternal grandparents and will undertake a long trip by aeroplane to Australia. Because she will be travelling with her mother the effects of disrupting her daily routine will be significantly reduced and the strain of the travel competently managed. This disruption is outweighed in any event by the benefits of having contact with her father and his family.
Upon her arrival in Australia, the husband proposes that the child will continue to live with her mother and exercise daily contact to him twice a week. The wife agrees that this form of contact between 9.00am and 5.00pm is an appropriate duration for contact. I infer from this that she concedes that the child still has a relationship with the husband and an understanding of who he is. The mother will have four months to prepare the child for seeing her father, preparation that can promote the quality of contact that the child and father could enjoy. Simultaneously, the child will be able to enjoy time with her paternal relatives and re-establish those important relationships.
The proposals the husband makes for the wife and child during their stay in Australia are demonstrably adequate in the short term. The wife and child will have proper accommodation which accommodation is furnished and will meet the child’s needs. The orders do not make provision for financial support that would enable the wife to meet other day to day living expenses. Ordering her to bring the child back to Australia earlier than she had otherwise planned to travel herself may place her under significant financial pressure. The evidence does not demonstrate that she can meet her own and the child's additional living expenses from December 2001 until the hearing in March 2002. Nor can I be satisfied that ordering the wife to bring the child to Australia earlier than a few weeks prior to the hearing will not jeopardise her employment in Armenia. Thus I am satisfied that any order that the wife bring the child to Australia should be structured around her planned arrival for the hearing.
Provided the wife travels with the child the husband agrees that he will pay the wife and child’s airfare. He will be ordered to do so. In the event that the wife fails to comply with these orders and nonetheless utilises the ticket provided for her by the husband, the monies expended by him may be a factor that could be taken into account pursuant to section 75(2)(o) in the financial proceedings.
Mr Cuddy, on behalf of the wife, argued strongly against the making of an order for interim contact. I have given careful consideration to the submissions made on her behalf. However, I am comfortably satisfied that it is in this child’s best interests that she accompany her mother to Australia for the purposes of contact with the husband. Having the contact in Australia will not interfere with the wife’s capacity to participate in the final hearing. If needs be, the husband or members of his family could care for the child while she is conferring with her legal representatives.
For these reasons I make the orders identified at the commencement of these reasons.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of RYAN FM
Associate:
Date: 26 October 2001
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