Bahram & Zita
[2024] FedCFamC1F 162
•13 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bahram & Zita [2024] FedCFamC1F 162
File number: SYC 7901 of 2019 Judgment of: BRASCH J Date of judgment: 13 March 2024 Catchwords: FAMILY LAW – PARENTING – Where parents agreed on numerous parenting orders – Where mother lives overseas and wishes for the children to spend some time with her there – Where father opposes any overseas travel until the children are 18 years – Whether children ought spend three or four weeks with the mother at the end of Term 4 Legislation: Family Law Act1975 (Cth) Pt VII, ss 60CA, 60CC, 64B, 65AA, 65D, 106A, 117
Hague Convention on the Civil Aspects of International Child Abduction
United Nations Convention on the Rights of the Child
Cases cited: Bondelmonte & Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Kuebler and Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line & Line (1997) FLC 92-729; [1996] FamCA 145
Loddington & Derringford (No 2) [2008] FamCA 925
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 148 Date of hearing: 11–12 March 2024 Place: Sydney Counsel for the Applicant: Mr Hodgson Solicitor for the Applicant: O’Sullivan Legal The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Stolier Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 7901 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZITA
Applicant
AND: MR BAHRAM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
13 MARCH 2024
ON 11 MARCH 2024 BY CONSENT IT WAS ORDERED THAT:
Parental Responsibility
1.The father have sole parental responsibility for X born 2010 and Y born 2011 (“the children”).
2.Prior to making decisions that affect the long-term care, welfare and development of the children or either of them, the father must:
(a)No later than 21 days prior to making any decision pursuant to the immediately preceding order, advise the mother of the decision to be made, and seek the mother’s written response and input in relation to the decision;
(b)The mother shall provide her written response and input in relation to that decision no later than 14 days following receiving the request of the father; and,
(c)The father shall consider any response received from the mother, and shall advise the mother in writing of the decision that he makes as soon as reasonably practicable (and no later than 7 days) after that decision is made.
Live With
3.The children shall live with the father.
Changeover
4.When changeovers are not occurring at school, changeovers shall occur as agreed between the parties in writing, and failing agreement at Suburb B McDonalds.
Communication with the Children
5.The father shall facilitate a minimum of two video-conference communications between the mother and the children each week (on days that the children are not in her care) at times as agreed between the parties, and failing agreement as follows:
(a)Each Saturday from 9.00 am to 10.00 am (or, and provided the father provides the mother with 72 hours’ notice of same, in the event the children have an extracurricular activity at that time on a particular Saturday, then from 10.00 am to 11.00 am on the Sunday immediately following);
(b)Each Wednesday that the children are in attendance at school from 5.30 pm to 6.30 pm (or, and provided the father provides the mother with 72 hours’ notice, in the event the children have an extracurricular activity at that time on a particular Wednesday, then from 5.30 pm to 6.30 pm on the Thursday immediately following);
(c)Each Wednesday that the children are not in attendance at school from 9.00 am to 10.00 am (or, and provided the father provides the mother with 72 hours’ notice of same, in the event the children have an extracurricular activity at that time on a particular Wednesday, then from 9.00 am to 10.00 am on the Thursday immediately following provided the children are not at school on that Thursday, or from 5.30 pm to 6.30 pm on the Thursday immediately following should the children be at school on that Thursday); and
(d)All other such times as agreed between the parties in writing.
6.All such communication time as outlined herein shall be in accordance with Australian Eastern Standard or Australian Day-Light Saving Time.
7.In the event that the children wish to terminate communication with the mother earlier than the times outlined herein above, then they be permitted to do so.
8.The children’s electronic communication with the mother pursuant to Order 5 herein be suspended during the time that the children spend time with the mother pursuant these Orders.
9.The children shall be at liberty to communicate with either party at any reasonable time (noting that such times should not interfere with the schooling commitments of the children) when the children are not in their care, with the other party to encourage such communication, and afford the children privacy during such communication.
10.The father shall ensure that the mobile telephone utilised by the children for communication with the mother is fully charged, with Skype (or in the event that the parties or children elect to use an alternate communication application, that application) installed, and that this device is available to be utilized by the children (or either of them) to communicate with the mother in privacy, at any reasonable time whilst the children are in his care.
Communication Between the Parties
11.The parties keep the other informed of their telephone numbers and email addresses and notify each other within 24 hours of any changes to their contact details.
12.The parties shall communicate about the children and parenting arrangements by email or SMS text message only.
13.Each party shall keep the other informed of any address at which the children will be staying overnight.
Medical and Health Matters
14.The parties keep each other advised of any medical or health issues relating to the children, including but not limited to providing particulars of any medication that has been prescribed to the children and ensuring that the medication is provided to the other party at changeover and the name, contact details of the treating practitioner.
15.The parties keep each other informed as soon as practicable and not more than 24 hours following the children attending upon a medical practitioner, of any injury or medical condition suffered or treatment undergone by the children while they are in their respective care, and the parties are each permitted to communicate directly with and obtain all documents from, any treating medical practitioner, dentist or other allied health specialist attended upon by the children, in relation to the children’s health and welfare.
16.The father and mother be and are hereby authorised to provide a copy of these Orders to any medical, dental or other health professional attended upon by the children or either of them.
Schooling
17.The mother and the father be and are hereby authorised to:
(a)Receive information, notices, reports and photographs directly from the children’s school and/or any other associated provider of extra-curricular or sporting activities attended by them; and
(b)Provide a copy of these Orders to any school and/or the provider of any extra‑circular or sporting event attended by the children or either of them.
Non Denigration and Discussing Proceedings
18.On a without admissions basis, the mother and father be restrained by themselves, their servants and/or agents from:
(a)Denigrating the other parent or other family members to the children, or either of them, or in their presence and/or hearing and to the extent possible from allowing any other person to do so;
(b)Discussing these proceedings with the children or either of them save for explaining their effect;
(c)Physically disciplining the children or either of them; and
(d)Discrimination and hate speech towards the LGBTQ+ community, other religions, or races.
19.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument.
ON 12 MARCH 2024 BY CONSENT IT WAS ORDERED THAT:
Spend Time
1.In 2024, the children spend time with the mother as follows:
(a)In Term 1 2024, in Australia:
(i)On the last four weekday afternoons of Term 1 2024, the mother shall collect the children at 3.00 pm or the conclusion of school and deliver the children to school the following day at 8.15 am; and
(ii)From 3.00 pm or the conclusion of school on the last day of Term 1 for seven consecutive nights, ending at 6.00 pm on the eighth day.
(b)In Term 3 2024, in Australia:
(i)(On the last five weekday afternoons of Term 3 2024, the mother shall collect the children at 3.00 pm or the conclusion of school and deliver the children to school the following day at 8.15 am; and
(ii)(From 3.00 pm or the conclusion of school on the last day of Term 3 for eight consecutive nights, ending at 6.00 pm on the ninth day.
2.Thereafter:
(a)In Term 1, in Australia:
(i)On the last five weekday afternoons of Term 1 2024, the mother shall collect the children at 3.00 pm or the conclusion of school and deliver the children to school the following day at 8.15 pm; and
(ii)From 3.00 pm or the conclusion of school on the last day of Term 1 for 10 consecutive nights, ending at 6.00 pm on the eleventh day.
(b)In Term 3, in Australia:
(i)On the last five weekday afternoons of Term 3 2024, the mother shall collect the children at 3.00 pm or the conclusion of school and deliver the children to school the following day at 8.15 am; and
(ii)From 3.00 pm or the conclusion of school on the last day of Term 3 for 10 consecutive nights, ending at 6.00 pm on the eleventh day.
3.In addition to any time ordered on a final basis, the mother be permitted to spend time with the children for no more than seven consecutive nights at a time in Australia and on no more than three occasions per year, upon providing two weeks notice of her intended travel to the father, however no notice period is required if either child is admitted to hospital or is otherwise subject to a medical emergency.
Communication
4.The mother shall facilitate a minimum of two video-conference communications between the father and the children each week (on days that the children are not in his care) at times as agreed between the parties, and failing agreement as follows:
(a)Each Saturday from 9.00 am to 10.00 am (or, and provided the mother provides the father with 72 hours’ notice of same, in the event the children have an extracurricular activity at that time on a particular Saturday, then from 10.00 am to 11.00 am on the Sunday immediately following);
(b)Each Wednesday that the children are in attendance at school from 5.30 pm to 6.30 pm (or, and provided the mother provides the father with 72 hours’ notice, in the event the children have an extracurricular activity at that time on a particular Wednesday, then from 5.30 pm to 6.30 pm on the Thursday immediately following);
(c)Each Wednesday that the children are not in attendance at school from 9.00 am to 10.00 am (or, and provided the mother provides the father with 72 hours’ notice of same, in the event the children have an extracurricular activity at that time on a particular Wednesday, then from 9.00 am to 10.00 am on the Thursday immediately following provided the children are not at school on that Thursday, or from 5.30 pm to 6.30 pm on the Thursday immediately following should the children be at school on that Thursday); and
(d)All other such times as agreed between the parties in writing.
5.All such communication time as outlined herein shall be in accordance with Australian Eastern Standard or Australian Day-Light Saving Time.
6.In the event that the children wish to terminate communication with the father earlier than the times outlined herein above, then they be permitted to do so.
7.The children’s electronic communication with the father pursuant to Order 4 herein be suspended during the time that the children spend time with the father pursuant these Orders.
8.The children shall be at liberty to communicate with either party at any reasonable time (noting that such times should not interfere with the schooling commitments of the children) when the children are not in their care, with the other party to encourage such communication, and afford the children privacy during such communication.
Communication Between the Parties
9.The father shall keep the mother informed of his residential address and shall notify the mother within 24 hours of any changes to same.
Restraints and Injunctions
10.On a without admissions basis, the mother and father be restrained by themselves, their servants and/or agents from:
(a)Denigrating the other party, their customs, the countries in which they reside, or the laws of the countries in which they reside to the children, or either of them, or in their presence and/or hearing and to the extent possible from allowing any other person to do so.
11.Unless otherwise agreed by the parents in writing, the father will not schedule medical appointments for the children during time that the children are to be spending with the mother, except in an emergency.
12.Both parents will follow the recommendations for treatment of the children by any treating medical practitioner or health professional.
AND IT IS NOTED THAT:
A.It is the father’s hope that the mother will facilitate non-shared accommodation for the children in Australia.
B.Pursuant to s 65DA(2) and s 62B 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 those particulars are included in these orders.
THE COURT FURTHER ORDERS THAT:
1.In Term 4 2024, the children spend time with the mother as follows:
(a)In Australia, for the first four (4) weeks of the Term 4 school holidays commencing on the last day that the children are required to attend school in Term 4.
2.Thereafter, in Term 4:
(a)In even numbered years, for the first four (4) weeks of the Term 4 school holidays, commencing on the last day that the children are required to attend school in Term 4;
(b)In odd numbered years, for the last four (4) weeks of the Term 4 school holidays concluding on the first day the children are required to attend school in Term 1.
3.At the end of Term 4 2025 and thereafter, the children spend time with the mother in the United States of America (“USA”) or Australia at her election and:
(a)The parties shall do all acts and things to ensure that the children have a valid passport with a minimum of six (6) months validity remaining, and the costs of such passports shall be shared equally between the parties;
(b)Unless otherwise agreed between the parties, the parties shall be permitted to travel with the children or either of them during their time with the children in school holiday periods only.
4.The Court requests the Australian Federal Police forthwith remove the names of the children, X born 2010 (male) and Y born 2011 (female) from the Family Law Airport Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
5.For the purposes of s 65(Y) of the Family Law Act 1975 (Cth), the parties or either of them are hereby permitted to:
(a)Make travel arrangements for and with the children, or either of them, to travel outside of the Commonwealth of Australia; and
(b)Take or send the children, or either of them, to a place outside of Australia.
6.For the purpose of any international travel by the children, the following shall apply:
(a)No later than 42 days prior to the intended travel, the party proposing the travel of the children shall provide written notice to the other party of the intended travel;
(b)No later than 30 days prior to the intended travel, the party proposing the travel of the children shall provide a full itinerary of the proposed travel inclusive of departure and return dates, places of travel, and proposed flights and accommodation;
(c)No later than 14 days prior to the intended travel, the party proposing the travel shall furnish the other party with copies of return airline tickets for the children, travel insurance policies for the children, confirmed addresses of accommodation for the children, and a contact number upon which the party proposing travel and the children may be contacted for the duration of such travel (and the Orders with respect to video conference communication remain in force);
(d)The party proposing travel shall be responsible for the payment of the children’s flights, accommodation, and other expenses of travel incurred during the time of the travel;
(e)If the party proposing travel does not hold the children’s passports, the other party is to provide the travelling party with the passports by the method and timing stipulated by the travelling party;
(f)The party proposing travel shall only cause the children to attend Hague Convention countries during such travel, save and except for any other country consented to by the non-travelling party in writing;
(g)Should the mother and/or children be passengers on a flight passing through a non-Hague Convention country then they shall not leave the airport in that country save and except for on their ongoing flight;
(h)For any travel to the USA at the end of Term 4 2025, the mother must accompany the children on the flight from Australia to the USA and the return flight from the USA to Australia;
(i)From 2026, the children are permitted to travel as unaccompanied minors subject to the information above being provided by the party proposing the travel;
(j)Fourteen (14) days prior to departure on any international travel for the children to spend time with the mother, the mother is to provide a bond of $10,000 to be held by such person as agreed between the parties and failing agreement, this Court;
(k)Within 48 hours of the children’s scheduled return to Australia after spending time with the mother (allowing for airline delays or flight cancellations by the airline), the bond held pursuant to Order 6(j) herein is to be returned to the mother into a bank account nominated by her;
(l)In the event the mother does not return the children to Australia (save for airline delays or flight cancellations by the airline), the bond held pursuant to Order 6(j) herein is to be released to the father, into a bank account nominated by him, to facilitate the recovery of the children; and
(m)Upon the mother returning the children to Australia, she is to provide the father with the children’s passports using the method and timing stipulated by him.
7.The mother shall keep the father informed of her residential address and shall notify the father within 24 hours of any such changes to same.
8.The mother provide to the children one mobile phone for each child and those phones be available to them to communicate with either party at any reasonable time, with the mother to be responsible for the cost of the purchase and use of such phone.
9.In the event that either party refuses or neglects to do all acts and things and sign any document necessary to give effect to these Orders then pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of this Court is hereby appointed to execute all documents in the name of either party and do all acts and things necessary to give validity and operation to the said orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my ex tempore reasons. I will correct the transcript for grammatical error and to make the spoken word more amenable to writing.
This matter concerns two children: X, born 2010, and Y, born 2011 (“the children”).
The children’s parents are Ms Zita, born 1983 (“the mother”), and Mr Bahram, born 1982 (“the father”).
Over the course of the trial the parties, to their great credit, agreed on many final parenting orders including that the children live with the father, he have sole parental responsibility for major long-term decisions for them (albeit with consultation with the mother), communication orders and arrangements for the children to spend time with the mother in Australia at the end of the Terms 1 and 3 school holidays.
The issues in dispute are:
·Whether the children spend three or four weeks with the mother at the end of Term 4 holidays – the Independent Children’s Lawyer (“the ICL”) and mother propose four weeks and the father three;
·Whether the children must remain in Australia with the mother for those Term 4 holidays until they each reach 18 years old (per the father), or on the giving of a bond of $10,000 whether the children can spend those holidays with the mother in America commencing the end of this year (per the mother), or, again on the giving of a bond, the end of next year [in America] (per the ICL);
·Whether an order ought be made requiring the mother to provide the children with a mobile phone to allow them to communicate with either parent at any reasonable time, with the mother to be responsible for the cost of same; and
·Whether the mother ought contribute to the costs of the ICL. I say the mother because the father has an exemption.
Background
The parties commenced their relationship in 2005. They had met at high school in New Zealand years earlier.
They married in 2007 in Country C.
At points during the relationship they lived in Country D, Country C and Australia. Both children were born in Australia.
The evidence seems to support the conclusion that they relocated to Australia in 2012. They separated on 24 January 2013.
It is common ground that the children did not see the father for three months. The reasons for this are disputed and historical, but do not matter for present purposes.
Thereafter, the father agreed the children were in the mother’s primary care. It is common ground that children’s time with the father increased culminating in them spending one or two nights per fortnight with the father and holidays. That continued until the end of 2019.
I pause to highlight that the parents managed to organise parenting arrangements between themselves and without the assistance of the court for six years between 2013 and 2019.
The mother then met her now husband Mr E in 2019.
With the mother’s consent, the father took the children to the United States of America, including Disneyland, for five weeks in 2019. There was no suggestion that X’s Autism, caused any difficulties for him. The father says it was a wonderful trip.
The mother and Mr E married in 2019 in the United States of America. The father “approved” the children attending the wedding. They returned to Australia in late 2019.
The amicable enough relationship between the mother and the father took a dark turn when the mother told the father on or about 9 November 2019 that she – on her case – was going to move to the United States with the children for three months and then return. Conversely, the father says the children told him they were moving to the United States of America permanently and he said they were traumatised about this. I will return to this contention about trauma in due course as it forms a basis for the father opposing the children’s time in the United States of America at the end of Term 4, or at all.
The father says the travel was “without his knowledge and consent” but the mother plainly texted the father on or about 9 November 2019 about this. He subsequently applied for an Airport Watchlist order on 21 November 2019, because he had knowledge of the mother’s intentions.
The mother went to the United States of America in December 2019 without the children, her case being she and Mr E would sell up his property in the United States of America and return to Australia in or around the start of March 2020. The mother understood she would then resume primary care of the children. The children’s return tickets are in evidence before me although I accept return arrangements can be changed.
The mother agreed she sold property in her Australian residence, saying she could not afford to keep renting that property in her absence. The father relies upon ads the mother posted about moving to the United States of America to evidence permanency. I see the ads as no more than puffery.
The mother fell pregnant [to Mr E] in early 2020. It was a risky pregnancy, and she was told not to fly internationally. The pregnancy culminated in a miscarriage in mid-2020. The mother said she was ill after that. The mother fell pregnant again in early 2021, and in the circumstances of the earlier miscarriage took a cautious approach to the pregnancy. No one challenged the mother on these matters.
The mother was also the subject of a Departure Prohibition Order in place from March 2022 to October 2023. I say more about obligations to maintain children later.
Consequently, through the combination of the two difficult pregnancies in the United States of America, the Departure Prohibition Order between March 2022 to October 2023, and, travel restrictions and/or limited flights imposed by Covid, the children did not physically see the mother until December 2023.
That is a four year period where the children did not enjoy the warm embrace, love, support and experiential time with the parent who was, up until December 2019, their undisputed primary carer.
To his credit, the father acknowledged that the severing of this physical relationship could have been a cause of trauma for the children, but that was in addition to the trauma he says the children felt from learning they would move to American permanently in late 2019 – although that did not actually happen.
In 2021, Mr E and the mother welcomed a child into the world, F.
Material
The parties each filed Case Outlines.
The mother relied upon the following documents:
·Affidavit of Ms Zita filed 23 February 2024, but limited to paragraphs 1–6, 10–15, 17‑26, 30–31, 33, 35–39, 41–42, 46, 49 and 52; and
·Family Report of Ms G dated 30 June 2022 (Exhibit 1) but limited to paragraphs 1, 3, 15–18, 21, 25, 27, 29, 33, 64, 65, 82, 92, 97, 110, 125–126, 128–129, 134–137, 140‑142, 144, 161, 164 and 171–172.
The father relied upon the following documents:
·Affidavit of Mr Bahram filed 23 February 2024, but limited to paragraphs 1–4, 6–9, 17–39 and Annexures MB-1–MB-8;
·Family Report of Ms G dated 30 June 2022 (Exhibit 1); and
·Outline of Case Document filed 8 March 2024 (although I explained to him at least twice the contents were not evidence).
The ICL relied upon the following documents:
·Family Report of Ms G dated 30 June 2022 (Exhibit 1), but limited to paragraphs 29, 32, 110, 114, 127–128, 130–131, 135–137, 142, 159–160, 164, 171 and 173; and
·Annexure MB-6 to the father’s affidavit filed 23 February 2024 being X’s medical assessments.
Three Exhibits came into evidence during the course of proceedings.
Legal principles
Orders with respect to children are made under Pt VII of the Family Law Act1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act sets out the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
Best interests of the child
The best interests of the child is the paramount consideration (s 60CA) and is determined by an examination of the considerations set out in s 60CC of the Act.
In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
Section 60CC(2) contains two primary considerations – in short, the benefit to the child of having a meaningful relationship with both parents, and, the need to protect the child from the harm of being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations, s 60CC(2A) requires the Court give greater weight to s 60CC(2)(b), being protection from harm.
Section 60CC(2)(a): a meaningful relationship
There is no contest in this matter that the children ought have a meaningful relationship with both parents albeit attenuated by the mother’s residence in the United States of America; with respect to the concept of meaningful relationship; see Loddington & Derringford (No 2) [2008] FamCA 925 per Cronin J at [169] (that for there to be meaningful relationship, it must be “healthy, worthwhile and advantageous to the child”); Cotton & Cotton (1983) FLC 91-330 per Nygh J at 78,252; McCall & Clark (2009) FLC 93-405 at [122].
Importantly given the mother’s residence in a different hemisphere, the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [182] endorsed what was said by Kay J in Godfrey & Sanders (2007) 208 FLR 287:
36.It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
(Emphasis added)
The children’s reality is that their mother was physically absent for four years. Their physical reunion in December 2023 to January 2024 on all accounts went well. It is early days though and the parties are agreed on the children spending time with the mother in or around the end of Terms 1 and 3 each year in Australia. The parties are also agreed the mother may come to Australia at other times on notice, and can visit at anytime the child have emergency medical care. They are agreed some form of time to occur in the holidays at the end of Term 4, but disagree about duration and location.
The Report writer's clear evidence was that the children’s best interests would be served by the children having both parents involved in their lives, although within the parameters of the mother’s residence overseas.
Section 60CC(2)(b) protection from harm
At one point in the hearing, the father spoke in terms of the mother posing a risk to the children. When asked to clarify, he quickly eschewed any idea that she posed an unacceptable risk of harm to the children (Isles & Nelissen (2022) FLC 94-092).
The father consented to orders the children spend block time with the mother in Australia without fetter of supervision.
He pointed though to X telling the Family Report writer “that his mother used to hit him a lot for arguing with [Y]” (Exhibit 1, paragraph 20). Parents are entitled to use reasonable physical discipline on their children. I do not consider this ‘past tense’ quote from X to represent an unacceptable risk. The parties have agreed to not physically discipline the children.
The father squarely raises the risk of wrongful retention of the children by the mother should she be permitted to take the children to the United States of America. I will consider that under the specific topic of location of the Term 4 holidays later in these reasons.
Save for my subsequent consideration of that wrongful retention risk as submitted by the father, I am otherwise satisfied the children do not need to be protected from harm when in their respective parent’s care. Indeed, the nature of the many consent orders belie such a need.
Additional s 60CC(3) factors
Mindful of the issues in dispute, I constrain my observations about the s 60CC(3) factors to that which is relevant.
Wishes
The ICL’s counsel informed me that at a recent meeting with the children, both said they did not want to go to the United States of America to visit the mother.
America is not a new location for the children. As mentioned, they went with the father for five weeks in 2019. Equally, without any suggestion of a problem, the children attended the mother’s marriage in the United States of America later in 2019. The father says he “approved” that travel. It must be observed that the children were returned.
The father placed heavy reliance upon the views expressed by the children to the ICL. I am also conscious of what the children said to the Family Report writer, but that is some two years ago.
It is common ground that the children’s time with the mother in Australia over December 2023 and January 2024 went well.
Whilst I accept the ICL’s recitation of the children’s views, as his counsel recognised, that does not bind me. I discussed with the father the High Court decision of Bondelmonte & Bondelmonte (2017) 259 CLR 662 (“Bondelmonte”), which makes it clear that children’s views are not determinative. As I also discussed with the father, the children in Bondelmonte were considerably older than these children.
What the children told the ICL has to be understood against a wider backdrop that the children did not have experiential time with the mother from December 2019 to December 2023. There is a suggestion in the Family Report that Y at least feels some abandonment from her mother.
To that end, the parties have entered into consent orders which will provide for the children to again experience, develop and renew a physical relationship with the mother at least in the holidays after Terms 1 and 3, along with some days before the holidays, and, on each party’s case they will also spend a block period of time with the mother at the holidays at the end of Term 4. The question though is the duration and location.
In looking at the children’s views, it is clear to me that the children, particularly X, is aligned to the father. X told the Family Report writer about child support, he told the report writer about Mr E’s business thriving, but that the father “sacrificed” everything for them. Given what X told the Report writer I do not accept the father’s explanation that it all arose from the child overhearing the father talking on the phone about child support.
I also consider it more than a simple coincidence that the children articulated a view that they should not be required to travel until they turn 18, which is precisely the father’s position before me. I cannot [however] sheet home all of the [children’s] views [to the father], as the children themselves may well have developed views by the very fact of the mother’s absence in their life.
I do however accept the Family Report writer’s opinion that the children have been involved in the adult dispute.
The children’s views about visiting the mother in America must be, in my assessment, tempered by the fact that for some time, she has been an unknown quantity for them in terms of day in day out experiences. The mother needs to rebuild that bridge with them and the consent orders provide that path.
Whilst I acknowledge the children’s views about visiting the mother in America, I conclude that they are coloured by their lived experience of the mother being out of their lives, save for electronic communication, for a significant period of time.
Separately, despite the father’s submissions on the topic, I am satisfied that the United States not being a signatory to the United Nations Convention on the Rights of the Child does not have any particular bearing on this matter. As I raised with the father, I am required to turn my mind to the considerations in the Family Law Act of the Commonwealth of Australia.
Nature of relationships
It is agreed the children will live with the father and spend time with the mother. That means each party is implicitly saying the other parent is a good enough parent, and that the children’s relationships with each parent are of value to the children and offers them benefit.
In terms of other relationships, the children are yet to truly experience F, their younger brother. The children can resume a relationship with Mr E too. The father spoke very positively of Mr E.
Taking opportunities
The father is critical of the mother’s absence from the children’s life. However I accept that a confluence of unfortunate events put a physical barrier in the mother’s way. Her evidence about the difficult first pregnancy culminating in a miscarriage was not the subject of any serious challenge, if at all. It makes perfect sense that the mother would then take a cautious approach to her second pregnancy resulting in the birth of F in 2021.
The father eventually accepted that Covid limited flight opportunities. I accept the mother is an Australian citizen and could, subject to flight availability, come to Australia but would had to have quarantined. Her husband though is not an Australian citizen and that posed extra impediments upon his ability to accompany her.
The mother was also the subject of a Departure Prohibition Order, meaning if she had come to Australia then she would have been prevented from leaving until the child support debt was satisfied or arrangements made suitable to the Registrar. That could have meant that her husband and new child were in the United States of America, while she was in Australia. I say more about maintaining the children in the next section.
What is clear to me is that as soon as the Departure Prohibition Order was revoked in October 2023, the mother took steps to come to Australia and spent time with the children in two to three night blocks between December 2023 and January 2024.
Maintaining the children
I have already referred to the Departure Prohibition Order which was invoked against the mother. It was put in place in March 2022 and lasted until October 2023. That means the Child Support Registrar was satisfied the mother had child support arrears. The amount in issue was quite modest being, it would seem, the sum of about $8,000.
Why the mother did not pay this is not explained to my satisfaction. The father makes the point, and with merit, that she was able to spend about $200,000 in legal fees. Doing the best I can with the parties various objections and reviews and the Administrative Appeals Tribunal (“the AAT”) proceedings, it seems the mother’s case was her income was assessed in error. The AAT has made the decision however and that is that.
I do not understand why the mother did not pay the amount, even under sufferance, if that meant she could have come to Australia sooner and see the children, but subject to her pregnancy health and the Covid problems. This consideration does not augur well for the mother, however I also accept that she instituted these legal proceedings to have an earlier final parenting order made in her absence set aside and initially embarked upon a process to have the children live with her in the United States. She did not pursue that case though before me.
Whilst I am satisfied the mother ought have attended to her child support obligations, especially if that meant she could have seen the children sooner (even if she considered it to be wrong), I also accept she was pursuing wider relief through this court with respect to the children.
The parties have otherwise shown themselves to be adept at invoking the applications, objections and reviews available through the child support agency. That is the appropriate forum for them to take up their child support disputes, if any, in the future.
Effect of change
The parties agree that the children will see the mother at least at the end of Terms 1, 3 and 4. The clear implication from those positions is that each parent must be of the view the children will cope and benefit from this time.
At least the Terms 1 and 3 holiday time will be in Australia, that not being a great change the children. I will determine the location of the Term 4 holidays as a discrete issue later but acknowledge that the ICL’s and mother’s proposal for time in the United States would be some change for the children. But, as said, the United States is not a foreign country to them. On all accounts they enjoyed the five weeks with the father in 2019 and no one takes issue about how the children fared when they attended the mother and Mr E’s wedding in 2019.
It is clear that Y, in particular, likes Disneyland.
The practical difficulty and expense of a child spending time with and communicating with a parent
The mother proposes to assume the financial burden of her travel to Australia and the children’s travel to the United States if permitted. She also proposes the payment of a $10,000 bond, which the father can access if she wrongfully retains the children in the United States.
If I allow the children to spend time with their mother in the United States (a discrete issue I will decide later), then I am satisfied the $10,000 would be adequate to cover the father’s flights to America and back to Australia, and single flights for the children, along with some accommodation and cost of living expenses. That then alleviates what the father called his dire financial circumstances and inability to find such funds. Further, at least until each child turns 16 the father may also be able to take the benefit from that the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) through the Central Authority should the mother retain the children.
Capacity to parent, parental responsibility
The terms of the consent orders and the proposals about end of Term 4 holiday time lead me to conclude that each parent says the other is a good enough parent.
The father however challenged the mother about her views on psychologists and the labelling of X with an autism diagnosis. The mother’s evidence impressed me that she was well alert to X’s needs and respected the [health] treaters’ decisions. The parties have also entered into orders by consent that they will follow the recommendations of medical treaters.
The mother also adequately explained to my satisfaction her historical objection to the children being exposed to a psychologist through legal proceedings and her disagreement with the level of X’s diagnosis; she accepted the diagnosis just not the level and thought that might have been to assist with NDIS funding. Whatever the correct level, I am satisfied the mother has an awareness of X’s needs and is respecting of his treating team and their views.
Maturity, sex, lifestyle and background
The reality for the children now is that they have a mother who lives in America, a stepfather who lives in America, and young F who was born in the United States. The children also enjoy Country C heritage and very strong connections to Australia.
Experience of the United States itself and all it has to offer, will occur in the United States.
If the child is an Aboriginal child or a Torres Strait Islander child
Not applicable.
Family violence
A decade ago the mother had the benefit of the protection order. I do not consider given the terms of the dispute before me that it is necessary to resolve what may or may not have occurred between the parents 10 years ago or indeed during the length of their relationship. It comes as no surprise that people can behave poorly at separation, but what was far more important for these children is that from 2013 to the end of 2019 the parties were able to coparent and muddle through with parenting arrangements without resort to court.
Further proceedings
Of course, the avoidance of future proceedings is a goal. However, that is very much in the parents’ hands. I will make a s 106A order so that if documents need to be signed and one party refuses, then a registrar can do so.
It troubles me somewhat that the parties put very little flesh on the bones in terms of the mechanics of how orders will operate, for example, changeovers for the Term 4 holidays that do not involve school. However, given no one asked me to address that lack of granularity, I will not do so. If that leads the parties into further dispute than that will be resolved at that time.
The mother also provided no orders about how, on her case, she was to get passports from the father, or, the mechanism for the bond. I will do my best to address that with orders.
Other
Nothing else arises.
I now turn to the issues in dispute.
Location of Term 4 time
The mother seeks holidays at the end of Term 4 time to occur in the United States this year. The ICL proposes it occurs next year, being at the end of Term 4 2025. The father seeks a blanket prohibition on such travel until the children are 18.
The father’s reasons for his stance are set out in his outline (at paragraph 40) and echoed in his written submissions. They include:
a) Autonomy: The children's objections to international travel, as outlined in the ICL's Case Outline, failing to consider the children’s evolving autonomy as mature minors.
b) International Convention on the Rights of the Child (CRC): The potential conflict with the CRC, which emphasises the importance of considering children's views in decisions concerning them.
c) Relationships: Re-establishing a healthy relationship with their mother after a significant period of absence (4 years) requires a supportive and stress-free environment. Mandating international travel is likely to strain this process, given the four years of the mother’s absence.
d) Past Trauma and Stability: Any disruption to the children's current stability, established under the existing Final Orders, could potentially impact their mental health and well-being, considering the past traumatic events they experienced involving international travel.
d) Special Needs: [X’s] ongoing psychological support needs and mental health struggles require careful consideration, which the mother does not appear to accept.
(As per the original)
(Father’s Case Outline filed 10 March 2023, paragraph 40)
With respect to autonomy, I have already considered this under the wishes heading above. In short, the children’s views are not determinative.
I have also referred to the Convention on the Rights of the Child. Insofar as it concerns hearing children’s voices, then the Australian manifestation of those convention principles are found, for example, in ICLs speaking to children as occurred here, or Family Reports being obtained as also occurred here. It seems to me that in the circumstances of this case, the more relevant Convention is the Hague Convention.
The father’s relationship point is one well-made. In short, the mother needs to crawl with the children before she walks. It is for that basis, supported by the recommendations in the Family Report, that the ICL proposes the children spend time with the mother in Terms 1 and 3 this year and next year in Australia and then after that (being the end of Term 4 2025) the children spend time with her in the United States.
I am concerned that the mother’s proposal is one that goes too quickly and could be counter‑productive. The children’s reality is they have had little to do with the mother in a physical sense over four years. She needs to show them that she is back and available to them and any sense of abandonment they may have is eased. On that basis it concerns me that the children having Term 1 and Term 3 holidays this year with the mother and then Term 4 in the United States might be just a bridge too far. That is also in circumstances where the children’s refrain about 18 years echoes that of the father.
The father put a lot of emphasis on the concept of the children’s past trauma. In terms of trauma the father says this in his affidavit:
19.On 9 November 2019, the children informed me of the mother’s plans to relocate to the USA. I subsequently contacted the mother to inquire about their potential move from Sydney. [Ms Zita] replied later that night and stated: “Okay, just found out I have to move with work to the US. We aim to be back in March.” Notably, the mother later claimed her inability to work in the USA for an entire year, before the Administrative Appeals Tribunal (“AAT”) in a submission dated [mid] 2022.
20.On 16 November 2019, I messaged the mother stating, “Kids are hysterical, crying, and saying you are selling everything and taking them away. I need to know what’s happening with my kids.” The mother then stopped responding to my text messages, and shortly thereafter, I discovered that the mother was selling all of her and the children’s personal belongings online. In one of the advertisements, [Ms Zita] explicitly stated “we are a family of four and are moving overseas”.
(Father’s affidavit filed 23 February 2024, paragraphs 19–20)
The father’s unparticularised evidence fails to persuade me that it permits a conclusion that the children suffered and are still suffering trauma from the idea they were going permanently to the United States of America - which did not, in fact, happen.
Importantly, the children do not repeat anything which would lead to a conclusion of past or current trauma in the Family Report, dated 2022.
Allied to the father’s contention about trauma, which I do not accept, is his contention that the children will be retained in the United States. The basis for his conclusion is how the mother went about the move to the United States in November and December 2019.
I have already referred to the father saying he had no knowledge of the move but it is clear from his own evidence just extracted that the mother texted him about this on 9 November 2019. He did not agree to her going and obviously had knowledge of the mother’s intentions enabling him to apply for an Airport Watch List order on or about 21 November 2019.
The father highlighted the mother was selling household contents and inferred that meant she was not coming back to Australia. The mother agreed she sold various household items, saying she could not afford to stay in the United States of America and keep renting her New South Wales accommodation. As I have already indicated, I consider the ads for the sale of chattels to amount to puffery.
The father is also critical of the mother that she told him about the move for work a week or so after she had bought tickets. Again, he had knowledge prior to her plans to depart.
The father also sought from the mother a concession that she had applied for a green card at a time earlier than she stated. The mother received her green card in late 2020. She had said for some other purpose that it takes 14 or more months to get a green card in the United States as a spouse. The mother’s evidence was she applied somewhere in or around early 2020 and secured the green card in late 2020. The father competently cross-examined the mother on a receipt from the relevant United States government entity, but that did not support the contention that she applied for the green card 14 months before she received it in late 2020. I showed the father that there was a reference to priority on the application and all dates were in 2020. However, the document was heavily redacted but nevertheless does not support what the father seemed to be driving at, being that the mother sought the green card at least 14 months prior to its granting in late 2020. The father has failed to persuade me on this issue.
The father urges me to make a finding that the mother intended to leave Australia with the children and move permanently to the United State of America. In response to a question of mine, the ICL and mother said such a finding is unnecessary - whatever the mother’s original plans were, or not, she went anyway and the children’s reality is that they did not physically see their mother for four years.
However, as the father’s fear about a future wrongful retention are said to come from these [late 2019] events, I will give them further consideration. Ultimately, for the reasons that follow I am not persuaded that the mother intended to relocate to the United States with the children permanently when she told the father about this in early November 2019.
First, the mother annexed the return airfares for herself and the children to her affidavit at Annexure B. The return flight was to arrive in Sydney in March 2020. That said, I accept people can reschedule flights.
Second, and more persuasively, the children previously travelled to the United States of America for the mother’s wedding in 2019 and returned to Australia. If the mother did have a plan to wrongfully retain the children in that country then that was precisely the time to do so. But she did not. The children were returned to Australia.
Third, the father relies upon a conversation he had with Mr E in his outline when the children returned from their wedding. Whilst I accept an outline is not evidence, the father’s reliance on it notwithstanding does not assist him with the wrongful retention case he makes:
In [late] 2019, the children returned to Australia after attending their mother's wedding in the USA. I congratulated [Mr E] in person during a changeover and wished him a pleasant life in Australia. At our first meeting, [Mr E] informed me that he applied for an Australian PR, and that he looks forward to settling in Australia.
(Emphasis added)
(Father’s Case Outline filed 10 March 2024, p.5)
What the father refers to here is consistent with the mother’s position that the travel to United States was, at that time, a short-term proposition.
I accept the father was traumatised by what he said the children told him five years ago. It is clear he remains traumatised about that now. There is much force in the ICL’s approach that the trauma is the father’s and not shared by the children. The father might consider some therapeutic support to help him move on from what did not ultimately happen some five years ago. I will not make that as an order though as no one asked me to.
However, there is no reliable, current evidence before me that the children share that trauma; see the Family Report.
As for stability, there is also no evidence before me that either child have needs, especially X, that warrant curtailing international travel. Such a position would sit entirely at odds with the father “approving” the children’s attendance in America for the 2019 wedding, and the children’s five weeks in the United States of America with the father earlier in 2019.
Matters thought to be relevant in considering whether to permit overseas travel were considered as long ago as 1978 in Kuebler and Kuebler (1978) FLC 90-434 at [15], where Asche SJ said:
In my view, the considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these:
(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 access;
(d) Any threats 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 jurisdiction would be honoured.
Obviously one of the most significant issues will be assessing the risk of the child not being returned to Australia. In Line & Line (1997) FLC 92-729 the Full Court identified “obvious considerations” at 4.49 to 4.51, which may be paraphrased as follows:
(a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence here of close family or friends);
(b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);
(c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, all the residents of close family and/or personal friends there);
(d)Whether the country of travel is a signatory to the Hague (Child Abduction) Convention; and
(e)The financial circumstances of the parties.
One step designed to assist in ensuring the return of the travelling party is to require a person to put up security either in cash or by way of reference to a property. This gives the travelling party an incentive to return (or in this case, return the children), and in the event of non-return gives the remaining party funds with which to prosecute their case both in Australia and overseas.
These authorities and ones like them tend to be predicated on the position that both parents are in Australia, and one wishes to travel to another country and then come back to Australia - the question being will they return. The matter before me is slightly different from that question. What I have before me is to consider whether I am satisfied the mother will return the children to Australia, notwithstanding her residence in the United States, or, as perhaps the father would put it, whether she will wrongfully retain them in the United States.
For the reasons just given I am not satisfied that the mother’s actions in November and December 2019 were really a permanent relocation by her and of the children. If she was going to wrongfully retain the children, the wedding would have been the perfect time to do so. But she did not. The father also relies on something that Mr E told him which is consistent with the mother’s position; it was a short-term move. However through the confluence of events that I have already referred to the mother is now living in the United States with her husband Mr E and their son F.
The mother no longer seeks an order that the children reside with her there and has consented to a whole raft of orders which see her spending time with the children in Australia. By that, she obviously recognises the children’s ties to Australia and its importance to the children.
In terms of possible motives to retain the children, the mother offers a surety in the sum of $10,000. This is not an insignificant amount of money particularly given the costs of travel the mother will have to come to Australia at least twice a year and if permitted, the costs of travel to America for the children. There is also some force in the mother’s counsel’s submission that if the mother wrongfully retained the children in the United States, then the father, once they are recovered to Australia, would be in a very strong position to seek orders in this court that she have no time with them at all. That itself must be a motivator to comply.
I also accept the United States is a signatory to the Hague Convention, which gravitates towards allowing the mother time. I accept that the Hague Convention may well have limited application once the children turn 16 but when they are 16 they will, I have no doubt, be able to take some self-help measures if wrongfully retained by the mother, including, for example, contacting the father’s family who are in the United States or contacting the father directly themselves. One of the orders I am asked to make is an order that the mother provide the children with a mobile phone to contact both parents. That is a means by which they could contact the father or anyone in his family, or indeed any of their friends, if they thought they were going to be wrongfully retained in the United States.
The financial circumstances of the father are said to be poor, although the mother disputes this. For these purposes I am prepared to take the father’s summary of outline at face value that he does not have the finances to chase the children overseas. That makes the bond offered by the mother all the more important, along with the father’s likely ability to access Hague processes.
Whilst the orders proposed by all parties in this case do not amount, of course, to equal time or even significant and substantial time, an underlying theme in the Act, for example s 65DAA(3) is that where it is in the children’s best interests, they just not have the good times with one parent and the day in day out routine with the other. It is usually important for children to have time with both parents that includes holidays and weekends but also time that includes daily routine and allowing the children to have both parents participate in events that are significant to the child. This might include sporting events, birthdays or concerts.
If the children are never allowed to visit and spend time with the mother in America (at least until 18) then they will have no understanding of her life, her routine there and what day in day out is for her and her wider family. They will have the mother, probably staying at a friend’s house, in Australia which is somewhat artificial. Of course that is what will occur for the Term 1 and Term 3 shorter holidays because otherwise the mother would be spending all that time on a plane. However the longer Term 4 holidays presents an opportunity for the children to experience that day in day out life that the mother has with her husband and with F in another country.
Time in the United States will also allow the children to have a better understanding and appreciation of the culture and lifestyle that the mother has now chosen for herself and the children’s sibling F has by birth. The children, by dint of the mother’s choices, now have a link to that country and ought be able to spend time with her in it.
I am satisfied that it is in the children’s best interests to have experiential time with the mother in her lived environment in the United States of America. I will not however allow time to occur this year as I consider that to be too fast and may well destabilise the children’s re‑emerging relationship with their mother.
Instead, I accept the submissions of the ICL and the opinion of the Family Report writer that there ought be four visits going forward before the children go and spend time with the mother in the United States. I will therefore order that the 2024 Term 4 time occur in Australia. Thereafter, being from 2025, the children’s [end of] Term 4 holiday time will occur either in Australia or the United States at the mother’s election.
That means that if the mother is satisfied the children do not want to go to the United States of America, then she can elect to spend time with them in Australia. That gives resonance to what the Family Report writer said in her report at paragraph 142:
142.…Due to their experience of having no say in their living arrangements previously, it is important that both [X] and [Y] feel that they have some control over their lives now. It is important that [Ms Zita] understand this and allow the children to make this decision.
(Exhibit 1, paragraph 142)
That does not mean the children are the arbiters of whether they go or not, just as their views are not the determiners. I simply give the mother the election to decide, in her sole discretion, whether time will be in the United States or Australia. By then, she will have had the benefit of this year’s and next year’s holiday time with the children.
I am satisfied it is also appropriate to make the bond order proposed by the mother.
I do not, for the reasons already given, consider that she [the mother] is a risk of retaining the children in America. I accept her counsel’s submission that should she do so, then that will pretty much, in all likelihood put paid to her ever having a relationship with the children again, whilst they remain under 18. That must be a considerable motivator.
I will make the travel orders proposed by the mother and largely supported by the ICL albeit for Term 4 2025. As indicated, I will add a s 106A order so that so documents can be signed, even if one parent refuses. I will also make orders for the passports to be provided to the travelling parent and returned to the father on the completion of travel. I will make orders that the mother pay the bond of $10,000, but unfortunately received little by way of mechanics for such an order. Doing the best I can then I will order that the $10,000 be held by such a person as agreed between the parties and failing agreement by the court. I will make consequential orders about the funds being released to the mother when the children are returned to Australia, or, being released to the father if the children are not returned. But I will make allowance for airline delays and flight cancellations by the airline carrier.
I will also require the mother to travel with the children both from Australia and their return in Term 4, 2025. I do so on the basis that this will be the children’s first trip to see their mother in many years. Should they be nervous or otherwise unsettled about the prospect of flying then they will have their mother to accompany them. I am satisfied that they can then fly unaccompanied and have evidence before me in the mother’s annexures that they are able to do so.
Term 4 – three or four weeks
The next issue is whether the children should spend three or four weeks with the mother at the end of Term 4. In 2024 that will be in Australia and, as a consequence of the reasons I have just given, from 2025 the Term 4 holiday time will occur in the United States or Australia at the mother’s election.
In support of three weeks, being half of the Term 4 holidays the father submitted as follows:
In reference to the requested 3 weeks equal time (3 weeks) for the children to spend with each parent during the Term 4 end of year holiday. This has been the consistent time that the children spend time with me and their grandparents over the past years in Australia. This is the time when we spend quality time after a long busy year of medical appointments relating ASD support, orthodontic, eyes specialist, tutoring, homework, sports and extracurricular commitments. I seek the Honourable Courts to consider this special time for the children to spend with their father and allow equal time (3 weeks) for the children to spend with each parent in Australia, to maintain stability and consistency for the children.
(Emphasis in original)
(Father’s written submissions, p.1)
Once the father explained the children’s medical and allied health care, the regime was not nearly as onerous as he had otherwise portrayed. He made out that they were almost always at some form of appointment including on weekends and therefore he wanted the holiday time as some downtime [with them]. It transpired that the orthodontic works for X are almost finished and then it will be routine six monthly dental checks. The ASD support is once a fortnight but according to the father he [X] will not miss any appointments in Term 4 holidays. He sees an eye specialist once every three months and an optometrist every six months.
The children have extracurricular activities and sporting activities but doing the best I can it seems they were mainly school-based. If that is so, then that will have little impact on the amount of time the children spend with the mother or the father. Even if they do have some extracurricular or sporting activities over December/January, then I consider their relationship with their mother to be more important.
The father’s desire for equality for the end of Term 4 holidays does not recognise the reality that the great majority of the children’s time over the year will be spent with him. He will have a great many weekends. He works from home and is able to see the children during the day before and after school. He will have all of the Term 2 time.
I am persuaded to make the orders proposed by the ICL and the mother being a four-week block at the holidays at the end of Term 4. I am persuaded to do so because the [father’s] idea of equality is not one that really arises over the span of a year in this matter. The children will be spending a great majority of their time with the father. I also consider that for the 2024 the children’s relationship with the mother, albeit in Australia for that holiday, can benefit from spending a little bit more time with her.
I accept this is a time where the paternal grandparents spend time with the children and the father, but there is no evidence before me that they are constrained to those holidays and those holidays alone. As said, the father will have all of the Term 2 holidays.
As for end of Term 4 2025 and thereafter, if the mother takes the children to the United States then significant travel will be involved. A number of days will be lost whilst transiting from Sydney to the United States and then in return, along with the possibility of either or both children getting jet lag.
I accept there is much force in the submission made on the mother’s behalf that the children’s travel to and from Australia ought bookend some significant and substantial block time in between. Or, to put it differently if they were only allowed three weeks of holidays then the better part of about a week would be lost on travel to and from Australia. That would leave the children with two weeks or thereabouts to get into the routine of the mother’s American life. Conversely four weeks allows the better part of the week the travel and settling from jetlag and then three weeks or thereabouts to actually get immersed in the mother’s life in that country and for the children to enjoy and understand that life and their wider family dynamic they have in the United States.
I will therefore order the time for the holidays at the end of Term 4 be a four-week block, alternating as proposed across even and odd numbered years. The parties proposed that time start on the last day the children are required to attend school in one set of years. That has a clear beginning and therefore a clear end period. However, there was no start or end for the four weeks in the second part of the school holidays. To avoid the parties coming into conflict over when the second block starts and when it ends, I will mirror and adapt the proposal they had for the start of term time. That is, the four weeks will conclude on the first day the children are required to resume school in Term 1, just as the first block begins on the last day the children are required to attend school in Term 4.
Address
As I am permitting the children to travel to the United States I will therefore make the order about the mother keeping the father informed of her residential address. The parties were agreed with this order if I permitted the children to travel.
Communications
In the course of the hearing the mother sought an order in the following terms:
That the mother provide to the children one mobile phone for each child and those phones be available to them to communicate with either parent at any reasonable time, with the mother to be responsible for the cost of the purchase and use of such phone.
(Exhibit 3)
The background to this was the mother’s concern that the children would not have access to Apps such as Skype or FaceTime to facilitate communication with her.
The parties are now agreed to communication orders requiring the children to talk with the other parent twice per week by videoconference. It seems to me that consent order brings with it the very clear implication that the children’s communication devices have videoconference capability.
I did raise with the mother’s counsel whether such an order proposed by her would be fought with disaster, for example, somebody using the phone to make multiple international calls at significant cost to the mother. It also may be that the mobile phone will disappear or be lost in the children’s care. However if the mother sees this as a way to facilitate the children’s communication with her and is prepared to provide the phone and pay the costs then I see no harm in making such an order; I will make that order.
ICL’s costs
The ICL’s counsel made the usual application for costs. That application was admittedly somewhat lopsided in the sense that the father had an exemption from paying any of the ICL’s costs. The costs were in the sum of almost $12,400. That meant it was the mother alone who faced the prospect of contributing somewhere in the vicinity of almost $6,173.
The mother opposed this saying, basically, she had far more child focused things to spend her money on. I did not require any submissions from the father on something which is really between the mother and the ICL.
I was greatly assisted by the ICL and his counsel. They brought clarity to the matter and, I have no doubt, assisted the parties in resolving the many issues that they did. However I am satisfied that this is a matter where the usual rule in s 117 of the Act prevails, that each party bear their own costs. As would be clear from the reasons I have given, the mother will be paying considerable costs to further the children’s relationship with her, including international airfares. I am of the view that the children will ultimately be better served if the mother’s money remains in her pocket and available to be applied to the children, than in the pockets of Legal Aid.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 15 March 2024
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