WSV and TPV
[2004] FMCAfam 773
•3 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WSV & TPV | [2004] FMCAfam 773 |
| FAMILY LAW – Children – contact – where father resides in Alaska – frequency and duration of contact in Alaska – block contact ordered after child starts school. |
Family Law Act 1975 (Cth), ss.60, 65, 68
B and B Family Law Reform Act (1997) FLC 92-755
| Applicant: | WSV |
| Respondent: | TPV |
| File No: | PAM114 of 2004 |
| Delivered on: | 3 November 2004 |
| Delivered at: | Parramatta |
| Hearing Dates: | 27 & 28 October 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Heazlewood |
| Solicitors for the Applicant: | Heazlewoods Bushby International |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
After 1 January 2007 the husband shall have contact to the child, born in 2001, in the United States of America as follows:
(a)During the June/July school holidays 2007 from 9.00 am Saturday until 5.00 pm on the day ten days later. Contact is suspended from 4.00pm the fourth day after the child is placed into the fathers care until 4.00 pm the following day.
(b)During the June/July school holidays 2008 and each June/July holidays thereafter from 9.00 am Saturday until 5.00 pm on the day ten days later. On each occasion the child is to have no less than seven consecutive days in the husband’s care in Anchorage.
(c)In 2007 and alternate years thereafter from 9.00 am on the first Monday after the end of the fourth school term until 5.00 pm on the third Monday thereafter.
(d)In 2008 and alternate years thereafter from 9.00 am on the first Saturday after Christmas Day until 5.00 pm on the third Saturday three weeks later.
Travel time shall comprise part of the contact time referred to in Order 1.
The wife shall accompany the child to Anchorage in the United States of America at the commencement of the June/July 2007 contact and collect her from the husband in Anchorage at the conclusion of contact.
The wife may elect to accompany the child on any flights the child is required to undertake for the purpose of contact pursuant to these orders provided that she shall notify the husband in writing or by email no less than eight weeks before the first day of the relevant contact period.
In respect of the contact referred to in Order 3 above and any further contact visit in respect of which the husband accepts the wife’s election to accompany the child then:
(a)The husband shall notify the wife at least four weeks before the start of contact that he accepts her election to accompany the child.
(b)The husband shall provide the wife with return airline tickets for herself and the child to travel to Anchorage.
(c)The husband shall provide accommodation to the wife in either Anchorage or Big Lake during the period the child is exercising contact.
(d)If during contact period the husband considers it is in the child’s best interests to suspend contact then he may return her to the wife and in which case contact shall be suspended from time to time of such return until 9.00 am the following day.
If the husband elects to accompany the child himself on the contact flights then he shall bear the cost of all travelling and accommodation. At the start of contact the wife shall give him a current valid passport (including any relevant visa’s) in the child’s name. At the end of contact the husband shall give the child’s passport to the wife.
In respect of any flight for the purpose of contact where the wife accompanies the child, the wife shall not alter the flight details without the husband’s consent.
No later than the end of February 2005 the wife shall ensure that the child commences preschool at a preschool selected by her. The child shall attend preschool no less than one day each week during school term during 2005 and 2006. School term is as gazetted by the New South Wales Department of Education for 2005 and 2006.
Order 8 is conditional upon the husband paying the child’s fees relating to her attendance at preschool. For the purpose of this order the husband shall deposit with his solicitors the sum of $6,000 no later than 31 December 2004 which money shall be applied for the preschool fees in 2005. He shall deposit an additional $6,000 with his solicitors no later than 31 December 2005 which shall be applied to the preschool fees payable during 2006.
The husband shall irrevocably instruct his solicitors to hold the monies ordered in the Order 9 against the payment of preschool fees payable by the wife pursuant to these orders and to pay those fees on his behalf once an invoice is raised by the preschool.
These orders operate in conjunction with the consent orders made
27 October 2004.The composite effect of these orders is that the husband is entitled to three periods of block contact each year. If the husband exercises contact in the United States twice in any calender year, he is entitled to have contact in Australia on one additional occasion in the same calender year.
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 Annexure A and these particulars are included in these orders.
Subject to any application that may be made as to costs, all applications are dismissed.
Any application for costs must be made within twenty-eight days of today’s date.
FEDERAL MAGISTRATES |
PAM114 of 2004
| WSV |
Applicant
And
| TPV |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
Introduction
This is an application for parenting orders that relate to the parties' only child (the child). The child who was born in 2001 lives with her mother in Australia. WSV (the father) lives in Alaska. Since separation contact has generally occurred in Australia. The father seeks orders that will continue contact in Australia and make provision for contact in Alaska.
The child is a loved and loving child. Both parties have a great deal to offer their daughter. With both of her parent’s involvement in her life the child’s future is assured.
Whilst the parties agree on many matters concerning their daughter, they disagree about contact in the USA. Importantly, they agree that eventually she should have regular holiday contact in the USA. Their disagreement centres upon the mother's resistance to a fixed contact arrangement which the father says should start in 2007. The child starts school in 2007 by which time the father says she will be ready to have contact in Alaska. Simply put, the mother submits fixing arrangements for overseas travel three years' hence is premature. Because the child is only three years old and she does not have regular contact with her father, the mother says that any decision as to overseas contact should wait until more is known about the child's capacity to separate from her.
A secondary, closely linked issue concerns when the child should start preschool. The father says the child should start preschool one day a week commencing February 2005. Because she is an only child, he believes preschool is necessary so that she can learn to separate from her mother. Essentially, he submits the skills acquired at preschool will equip the child for contact and maximise the chances contact, in Australia and America will work. The mother enjoys full-time parenting and proposes that the child starts preschool one day a week when she is four years old. It is common ground that educationally attendance at preschool before school is recommended. The father’s issue is not focussed on the child's educational needs per se, rather upon developing her social skills so that she may find it easier to relate to adults and children with whom she does not have daily contact.
Current orders
On the first day of this hearing the parties reached agreement in relation to an array of issues, including regular contact in Australia.
I incorporate these orders into my reasons. Essentially, these orders provide that the child will have face to face contact with her father two or three times each year in Australia. During 2006 the child will start seven days of continuous block contact.
Chronology
The applicant father was born in the United States in 1965.
TPV (the mother) was born in Australia in 1972.
The parties met in Alaska and commenced cohabitation in January 2000. They married on 5 January 2001. In mid-2001 the mother briefly returned to Australia. She returned to Anchorage before again coming to Australia in preparation for the child’s birth.
The child was born in 2001.
The father joined the mother in Australia prior to the child's birth and was present when she was born. Not long after the child's birth the father returned to Anchorage. The parties had originally planned that the mother and child would return at the same time. However, the mother did not feel ready to return to Anchorage and so the father went home alone.
In March 2002 accompanied by the maternal grandmother, the mother and the child travelled to Anchorage. The mother and the child remained living with the father for about six weeks. Sadly, it became clear that the marriage had failed. When the mother and child returned to Australia in April 2002, both parties agreed that their marriage was over.
In July or August 2002 the parties met in Hawaii. They spent a week together attempting to save their marriage. They were unsuccessful and, at the end of the week, the mother and child returned to Australia while the father returned to Anchorage.
The parties remained in close contact and, in February 2003, the father arrived in Australia for contact. The mother had pre‑arranged a trip to Kiama and, notwithstanding the father’ arrival, she went to Kiama. Thus, the father was only able to have contact on four of the twelve days he was in Australia. In this instance, the mother's usually sound judgment in terms of prioritising the child’s needs failed her.
In May 2003 the mother and child travelled to California where they met up with the father. This coincided with a large family reunion. After the reunion the parties travelled to Las Vegas to visit the paternal grandfather. They stayed with the paternal grandfather for eight days.
In October 2003 the father came to Australia for 12 days. During this trip, he stayed at the mother's home and was able to spend all day every day with the child. The mother was present throughout the entire contact period.
On 22 March 2004 the decree nisi became absolute.
The father arrived in Australia on 12 April 2004 to have prearranged contact. He brought his new partner, S, with him. The first the mother knew that the father planned to include S in contact was after he arrived in Australia. Contact occurred on 13, 14, 15, 16, 17 and 18 April 2004. Contact took place for different periods of time during the day. At no time was the father allowed to have extended unsupervised contact. The mother insisted on being present not because of any perceived risk to the child but because she believes that the child needs to be with her all of the time.
Disappointed by his inability to have more extensive contact, on 23 April 2004 the father filed this contact application. He returned to Australia shortly prior to this hearing, during which time he has had contact with the child, both in the supervised setting of the family report process and on other occasions arranged between the parties' solicitors. This later contact has not been unsupervised.
The Family Report
As part of the preparation for trial, pursuant to s.62G(2) I ordered a family report. Ms Pitts, child and family counsellor attached to the Family Court, prepared the report[1]. I have been greatly assisted by it. Ms Pitts' recommended[2]:
“It is recommended that visits by the child to the US be postponed until after her fifth birthday. Very young children find the lengthy physical restrictions placed on them by long distance air travel are hard to tolerate, and it is difficult to explain to a very young child the need for such restriction. However, while TVP’s concern about air travel with the child is understandable, it seemed probable that she may also want to avoid travel to the US because of her concern that this would give WSV more control over the conditions of contact visits, particularly overnight contact visits. By postponing visits until after the child’s fifth birthday, TVP can be sure of the child’s ability to tell her father what she wants to do, and the child would probably be more ready to spend some time overnight on visits with her father.”
[1] Exhibit A
[2] Paragraph 38
The family reporter agreed during cross-examination that the first US contact visit should take place during the June/July 2007 Australian school holidays. She considers the father's proposal that this contact occasion continue for two weeks is too long. Not because she is concerned about the father's capacity to take care of the child but because this will be the first time US contact without the mother's participation. Ms Pitts said that the court would need to take into account that this would be the first time that the child would have a prolonged period in her father's home since she was a baby. I agree that this is a highly relevant consideration.
Even with considerable preparation by both parents, it is unlikely that the child will feel immediately comfortable in Anchorage and her father's home. She will be disoriented and tired after the journey from Sydney to Anchorage. The father emphasised that the trip is taken in two parts. The first leg is Sydney to Hawaii and then Hawaii to Anchorage. It is about nine hours flying time to Hawaii and four and a half hours to Anchorage. Thus he said the child would be travelling no more than about 14 hours. However, the trip also involves check in, transit time and often other unforseen delays. I prefer the mother's evidence that the entire trip is likely to take about 20 hours door to door.
The family reporter says that on the first occasion of contact in the USA there should be a break a few days into the contact during which time the child will return to her mother. The mother will accompany the child to Anchorage and plans to stay with her sister. Thus there is an easy opportunity for contact to stop for an overnight break about four nights after contact starts. Provided a break is included, the family reporter’s recommendations and opinion supports the father's proposal for contact. I accept the family reporter’s belief that there is every reason to believe that contact will succeed. I give her opinion considerable weight.
The father's circumstances
The father is one of three children. He was born in California and later moved with his family to Anchorage. His sister and her two children also live in Anchorage. The father’s brother JV and his family reside in Florida and the paternal grandfather lives in Las Vegas.
The father's employment history is outlined at paragraph 13 of his affidavit. For about nine years he worked for a company in Alaska selling construction equipment. After a period as a sales manager he started working for himself in real estate. Having bought, renovated and sold homes, he moved into the building industry. He now has a successful business building homes. The father employs a full time crew and also subcontractors. I accept his evidence that as the proprietor of an apparently successful business, he is able to control his work schedule. He will have contact at least twice a year in Australia. During any periods of contact in Alaska, he is able to take time from work so that he can be with his daughter. The father is highly motivated to have a good relationship with his daughter. I have no doubt that he will do all within his power, including arranging his work schedule in order to exercise all contact that is made available.
The father has lived with his partner S for fifteen months. S is 29 years old. They will marry in February 2005. Unfortunately, S recently suffered a miscarriage. However, they remain optimistic and hope to have children within the next couple of years. S runs her own company and is able to organise work so that she can participate in contact in Australia and Alaska. She has travelled to Australia for the last two contact visits and is strongly committed to establishing a happy relationship with the child. Because the mother insisted, S enrolled in a parenting course. Even though she thought it was unnecessary, she says that if doing so helped put the mother's mind at ease she agreed. The mother’s demand was unreasonable. S’s acquiescence shows that she will do whatever it takes to ensure contact succeeds.
For reasons that are unclear to me S has been the target of unfair criticism by the mother and her mother. They have been aggressive and unpleasant to her for no better reason than S is the father's new partner. These parties had separated long before the father met S. The parties' marriage having failed, it seems odd that S, who is a reasonable person, should be targeted merely because she is the father's new partner. The mother and her mother need to reconsider their attitude towards S. Because S is important to the father, she is important to the child. The mother’s present approach is unworthy of her.
The mother’s circumstances
The mother resides in Australia and will continue to do so. She has not worked since the child's birth. The mother enjoys being a full-time parent and is committed to remaining at home until the child is ready for school. When the child starts school she plans to return to work on a casual basis. The mother previously enjoyed a career in accounts administration and is confident that she will be able to work school hours, approximately 9 am to 3 pm. This will enable her to take the child to school in the morning and collect her in the afternoon and, relevantly, to be available during school holidays.
The mother is willing to travel to the United States on at least the first few contact occasions. She will remain in Anchorage or wherever contact is taking place whilst the child is with her father. As most of the contact will take place in Alaska, probably at Big Lake, the mother will be able to spend time with her sister who lives in Anchorage. Anchorage is about one hour's drive from Big Lake.
In February 2004 the mother made inquiries about the child starting preschool. One possibility is a preschool where the mother's nieces and nephews attended. The mother is hopeful that the child will be able to attend there. This appears likely.
The mother has a large and supportive family. She is one of seven children; six of whom reside in Australia. Her brothers and sisters all have children and the child has regular contact with her cousins. Photographs[3] show that the child is surrounded by a loving maternal family. Under her mother's aegis she has regular contact with children of all ages.
[3] Exhibit B
Relevant law
Contact orders are parenting orders. The applicable law is well settled. Proceedings of this type are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings.
It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Determining the child’s best interests
Neither party contends that the child has any wishes that I would take into account. She does not have the maturity or life experience to be able to understand the competing nuances of her parents' proposals.
I agree.
The critical factor in this matter is the child's relationships. The mother is the child’s primary care giver. The child has lived with her mother all of her life and for only a few weeks with her father. The mother knows the child better than anyone else. From her mother the child derives her sense of stability and security. The child is a happy, well‑adjusted child. This reflects positively on the mother's capacity as a parent and her commitment to her daughter. The mother agrees that the child has difficulty separating from her. The extent of which became apparent during the family report process. During the first observation on 21 October 2004 having separated from the mother, the child gradually worked herself up into a state of hysteria. The family reporter describes the situation as follows:
“A few minutes later her father was taken to the child care room to collect her to take her to the observation room. The child seemed to accept her father at first, demonstrating her ability to draw. However, when an attempt was made to encourage her to leave the child care room to go to the observation room, despite encouragement she angrily refused to walk to the other room. WSV had to pick her up and carry her.
WSV tried to tempt her with a lolly, but the child stood in the observation room, refusing to be distracted and persistently responding, “No!” to all his suggestions. He attempted to emphasise with her by suggesting that she was sad because her mother was not there. This caused the child to give a loud wail and to dive under the table and repeatedly tell him to “go away”.
The child was comforted quickly with the arrival of her mother in the observation room. She came out from under the table and seemed quite happy to play with her mother in the sand and drawing on the whiteboard. She practiced developing her language skills by mimicking what her mother said.
WSV [was] invited to return to the observation room, as the child seemed to be playing happily. However, she continued to refuse to engage him and stayed near her mother. When I suggested to TVP that she hand the child to her father, the child clung to her mother and became quite hysterical.”
Because the first observation session had been so difficult, the family reporter arranged a second observation session, for 25 October 2004. On this occasion she adopted a different strategy aimed specifically at assisting the child to separate from the mother. Ms Pitts organised a swift changeover and although the child was momentarily tearful, she quickly settled and was quite comfortable in her father's care. The session is described in the following terms:
“The child threw herself on the floor and cried quietly on and off for about fifteen to twenty minutes. WSV and S were instructed to play with the toys and to leave it to the child to join if she wished. It was noted that during the periods when the child was not crying she was watching the adults play. She became increasingly interested in the activities in the room, particularly when S was blowing bubbles herself. Now that she was settled, I went to the foyer to reassure the mother that she was playing happily. TVP advised me that she was on the telephone with her solicitor.
When I returned to the observation room, the child was still blowing bubbles and her father was “vacuuming up the bubbles on the carpet with a toy. This caused the child to happily blow more bubbles for him to vacuum up. She talked to her father and S about the bubbles and was encouraged to blow more.
TVP was invited to the room adjacent to the observation room where she could watch the child playing happily with the adults through a one way screen. She complained that I had included S from the beginning of the observation, instead of just bringing her in for a short time at the end. I explained to TVP that during the observation on 21/10/2004, I had attempted to follow that plan, but it had not worked. For that reason, I had decided to handle things differently for this second observation. TVP then claimed that if WSV had been by himself I would have observed that he was not capable of interacting with the child. TVP left for the waiting room.”
On this occasion the process was managed far better by the adults, particularly the changeover. As a consequence, the child settled quickly and was observed by the family reporter playing happily with her father and S.
I have already recounted the history of contact between the child and her father. Presently their relationship is tenuous. The child understands who her father is. She knows that he is “daddy” and that he is a special person in her life. However, she has not yet had the opportunity to develop a strong attachment to him. The future of their relationship depends to a very considerable extent on the parties' capacity to promote it and the opportunities for the child and father to spend time together.
I am very impressed by both parents’ in terms of their commitment to their daughter and of their parenting capacity. Although the father does not have hands-on experience as a parent, he impressed me with his understanding of the child's emotional and psychological needs. His approach to contact has been patient and he has cooperated with the mother's somewhat cautious approach. He has done so because he has tried to build the mother’s trust, hopeful that she might relax and feel confident that he and the child could have time together. His patience will stand him in good stead with some of the challenges that lie ahead, not only for him but also for the child. Whether learned or intuitive the father impressed me as a person with real parenting capacity who is well able to respond appropriately should the child become distressed. I have no doubt that he will provide her with an enriching and exciting time during contact. She will sleep when she needs sleep and receive all the other things a child needs from its parent. In both observation sessions I was impressed, at the manner in which he handled a difficult situation during the first session, and how well he settled the child into happy play during the second session.
It can be said that the observation sessions in the family report process are somewhat artificial. People with limited parenting skills can participate without being fully tested, thus providing artificially positive results in terms of their parenting capacity. This did not happen in this case. The observations made by the family reporter of the father are consistent with my observations of him. I am satisfied that is usually a competent parent.
I make the same findings concerning S.
The father’s parenting capacity will be reinforced through regular contact. The father has committed to contact on block periods at least twice a year in Australia. If he can manage it, and he expects to, he will make three trips to Australia annually. The more contact he has the better equipped he will be to actively parent. More importantly, the better opportunity the child has to learn to separate from her mother and spend time with her father.
One of the challenges all parents face is building their children's independence. When children live in a nuclear family, parents usually divide parenting responsibilities. Thus, children, although most have a clearly defined primary carer, learn in the home to be cared for by other trusted adults. Where children grow up in a family which includes other children, they learn to share and relate to a wider group of people. The child is denied these opportunities. She is an only child growing up in a home which comprises her and one parent. As a consequence, she has only had a limited opportunity to learn to share, separate from her mother and to trust adults and children other than when accompanied by her mother. The mother’s counsel emphasised that in the photographs the child is seen with other children and adults. However, in every photograph the mother is also present. Thus while the child is learning to relate to cousins and other maternal relatives, it seems likely her opportunities to relate to people without her mother have been very few.
The mother says that when the child is four she will be ready to start to develop her independence but that this should not be required of mother or child before. The submission was made that it would be a sad day if courts forced children into preschool when parents were opposed to it and available to care for their child. I concur. But what must be understood is that because the child's father lives in Alaska and the mother lives in Australia, there are challenges that the child and her parents face that most do not. The child needs to be prepared to have longer periods of time with her father with large gaps in between. She cannot have free and easy weekend contact with her father. Accordingly, the child's capacity to separate from her mother needs to be planned and enhanced. The father's proposal that the child start preschool one day a week in February 2005 will gradually develop her independence. It is an essential part of building this child's relationship with her father that she has the capacity to separate from her mother without distress or trauma. If the first few occasions that the child has time away from her mother is during contact, there is a real possibility that this will make contact more difficult. First separations are always difficult. If separation from the mother starts sooner, the child is less likely to feel a nexus between separation from her mother and contact with her father. Contact in both the short term and long term is likely to work far better if these first steps via separation from her primary care giver are taken before long periods of contact with her father. This is a very weighty consideration.
The timing of contact in the United States is a critical issue. When the child starts school she will acquire more sophisticated language and social skills. She will have a reasonable understanding of time and distance. Supplemented by preschool by the time June/July 2007 is reached, the child will have the maturity and capacity to comprehend the essential features of a journey to Alaska. Importantly she will understand that she is visiting her father in Alaska for a limited time, at the end of which she will return to Australia. Thus by 2007 the child will be ready for contact in the United States. Her mother will accompany her on the first journey which will make the trip less daunting. This reflects positively on the mother’s commitment for contact in the US.
Thereafter, contact with take place twice a year in the United States. The father has offered and will be ordered to meet all of the costs associated with contact. If the mother wishes to travel with the child, her fares and accommodation costs in Alaska will be paid for by the father. She must give him no less than eight weeks' notice of whether she plans to travel with the child or whether she expects him to travel to Australia and collect her. If the mother does not wish to travel, the father will need to make the journey twice: collecting the child from Australia at the beginning of contact and returning her to Australia at the end.
The father gave a most engaging description of Alaska during Christmas. It is a children's wonderland: with snow, skidoos and a completely different geography and climate to that which the child will enjoy in Australia. Although in some respects it is a harsh climate, this child will be exposed to an entirely different way of life during the few weeks of the Christmas school holidays. She can only be enriched by the exposure to her American family and culture.
Conclusion
For all of these reasons I am satisfied that I should made orders for contact in the United States commencing 2007.
I have considered very carefully the mother's approach that the court would wait until contact has taken place in Australia on a continuing basis before forming a view about whether further contact is appropriate. However, apart from the reasons I have already given for my satisfaction that contact will work from the child's point of view, I also feel the parties need a calendar that they can use to prepare the child for contact in the United States and by reference to which they can plan their own commitments.
As well as contact orders there are a suite of machinery orders that support contact. For example, arrangements for passport delivery and calculating the duration of contact. The father agreed that he will pay a share of the child’s pre-school expenses; his agreement is reflected in the orders.
For all of these reasons I make the orders identified at the start of these reasons. They are in the child's best interests.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S Mashman
Date: 18 April 2005
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