Bergmann & Bergmann

Case [2021] FamCA 599

FAMILY COURT OF AUSTRALIA

Bergmann & Bergmann [2021] FamCA 599

File number(s): SYC 7892 of 2015
Judgment of: HENDERSON J
Date of judgment: 12 August 2021
Catchwords: FAMILY LAW – PARENTING – International relocation – Where the mother seeks to relocate to City B with the two children of the relationship and will do so in any event – Where the father opposes the relocation – Where the mother has lived in City B since 2017 and travelled to Australia to maintain a week-about parenting arrangement until the onset of the COVID-19 pandemic – Where both children have expressed a strong wish to spend more time with their mother – Assessment of the competing proposals and the impact of those proposals on the children – Where although the Court finds the mother is the more flexible parent and better able to assist the children to deal with change, the impact of change for the children in moving to City B and being separated from all that they have known in Australia including their father militates against such an order being in their best interests – Orders made for the children to remain in their father’s care in Australia
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC
Cases cited:

Denham & Newsham [2021] FamCAFC 141

Goode & Goode (2006) FLC 93-286

Morgan & Miles (2007) FLC 93-343

MRR v GR (2010) FLC 93-424

U v U (2002) 211 CLR 238

Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 901
Date of hearing: 12-16 April, 19 April 2021
Place: Sydney
Counsel for the Applicant: Mr Kearney SC with Ms Lioumis
Solicitor for the Applicant: Pearson Emerson Family Lawyers
Counsel for the Respondent: Ms Christie SC with Ms Clifford
Solicitor for the Respondent: Barkus Doolan
Counsel for the Independent Children's Lawyer: Mr Guterres
Solicitor for the Independent Children's Lawyer: Russell Kennedy Aitken Lawyers

ORDERS

SYC 7892 of 2015
BETWEEN:

MR BERGMANN

Applicant
AND:

MS BERGMANN

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

12 AUGUST 2021

THE COURT ORDERS THAT:

1.The parties have equal shared parental responsibility for X born … 2008 (12 years old) and Y born … 2011 (10 years old) (“the children”).

2.The children live with the father in Australia.

3.The Court declares Australia is the children’s habitual place of residence.

4.That upon the making of these Orders and until the mother moves to City B the children shall live with their mother in Australia as follows:

(a)From Monday 9 August 2021 to Monday 6 September 2021 (noting the mother intends to depart Australia and travel to City B, France the evening of 6 September 2021);

(b)From Monday 4 October 2021 to Monday 1 November 2021 (noting the mother intends to depart Australia and travel to City B, France the evening of 1 November 2021);

(c)From Monday 6 December 2021 to the Friday before the children return to school with the children to spend time with the father from 5 PM Christmas Day to 5 PM New…

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Bergmann & Bergmann [2021] FamCA 599
Case
[2021] FamCA 599
Decision Date

CaseChat Overview and Summary

The case of Bergmann & Bergmann involved a dispute between a mother and father concerning the relocation of their two children from Australia to City B. The mother sought to relocate with the children, stating she would do so regardless of the father's opposition. The father opposed the relocation. The mother had resided in City B since 2017 and had previously travelled to Australia to maintain a week-about parenting arrangement until the COVID-19 pandemic. Both children expressed a strong desire to spend more time with their mother.

The court was required to assess the competing proposals of the parents and determine the impact of these proposals on the children's best interests. Key legal issues included evaluating the children's wishes, the parents' capacity to facilitate a meaningful relationship with the other parent, and the overall impact of a significant geographical relocation on the children's established lives and relationships in Australia.

Henderson J found that while the mother was the more flexible parent and better equipped to assist the children in managing change, the profound impact of moving to City B and being separated from their known environment in Australia, including their father, militated against such an order. The court considered the children's strong attachment to their mother, but ultimately concluded that the disruption and separation from their father and their Australian lives would not be in their best interests.

Consequently, the court ordered that the children remain in the father's care in Australia. The orders established equal shared parental responsibility, with the children living with the father and Australia declared their habitual place of residence. The orders also detailed specific arrangements for the children to spend time with the mother, both in Australia and internationally, and addressed travel costs and logistics.

Orders

Orders of the court

SYC 7892 of 2015

BETWEEN:

MR BERGMANN

Applicant

AND:

MS BERGMANN

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

12 AUGUST 2021

THE COURT ORDERS THAT:

1. The parties have equal shared parental responsibility for X born … 2008 (12 years old) and Y born … 2011 (10 years old) (“the children”).

2. The children live with the father in Australia.

3. The Court declares Australia is the children’s habitual place of residence.

4. That upon the making of these Orders and until the mother moves to City B the children shall live with their mother in Australia as follows:

(a) From Monday 9 August 2021 to Monday 6 September 2021 (noting the mother intends to depart Australia and travel to City B, France the evening of 6 September 2021);

(b) From Monday 4 October 2021 to Monday 1 November 2021 (noting the mother intends to depart Australia and travel to City B, France the evening of 1 November 2021);

(c) From Monday 6 December 2021 to the Friday before the children return to school with the children to spend time with the father from 5 PM Christmas Day to 5 PM New Year’s Eve in 2021.

5. Upon the commencement of Term 1, 2022 the children will spend time with the mother as follows:

(a) For the entirety of the end of Term 1 and Term 2 school holiday periods each year;

(b) For the entirety of the end of Term 3 school holiday period in even numbered years;

(c) During the end of Term 4 school holiday periods as follows:

(i) In years ending with an odd number from the conclusion of the school term to 15 January; and

(ii) In years ending with an even number from 27 December until the Friday before the commencement of school the following year.

6. The children will not travel internationally whilst they are required to quarantine. Once there is no longer the requirement for the children to quarantine for international travel the children will spend time with their mother as set out in Order 5 herein in Europe or any other international destination the mother chooses and notifies the father thereof.

7. In the event the mother travels to Australia at other periods during the year to see the children the children will spend additional time with the mother as agreed and in the absence of agreement as follows:

(a) For up to three (3) of the four (4) school terms in Australia, with the mother to elect one of the following options 21 days prior to the commencement of the nominated time:

(i) Option 1: for a period of up to two (2) separate occasions of 14 consecutive night periods with a minimum of 7 days between each occasion; or

(ii) Option 2: for one (1) period of 21 consecutive nights.

(b) When the children are staying with the mother during the school term as per Order 7(a) herein the children shall spend time with their father one afternoon each week as agreed and failing agreement from 3pm to 7pm on a Wednesday.

8. That for travel by the children to France the parties shall meet one half of the cost of all travel undertaken by the children at the rate set for travel between Australia and City B at business class rates.

9. For the purpose of the children travelling to City B, France to spend time with the mother pursuant to Order 5 herein the following shall apply:

(a) The mother shall 42 days prior to the relevant school holiday period, or such other time as is agreed, provide to the father a copy of the children’s return travel itinerary and within 48 hours thereafter the father shall pay to the mother's nominated bank account one half of the children's airline travel costs;

(b) When such travel is for the entirety of a school holiday period, then the mother shall do all things necessary to ensure the children are booked on flights departing Australia the day following the conclusion of the school term unless the parties otherwise agree and shall ensure the children's return flights to Australia permits the children to arrive in Sydney on or about 8pm the Friday before the commencement of the school term;

(c) Until such time as the parents agree the children can travel to and from City B and Sydney as unaccompanied minors the following shall apply:

(i) The children shall travel as unaccompanied minors for the first leg from Sydney with the father to deliver the children to Sydney Airport. The mother to meet the children at the first stop over and travel for the second leg with the children;

(ii) On the children's return flight to Sydney, the mother shall travel the first leg with the children and the children may return to Australia as unaccompanied minors.

10. When travel pursuant to Order 5 herein is to take place overseas during the December/January Holiday periods the following shall apply:

(a) When the mother is spending the first part of such holiday period with the children, the mother shall do all things necessary to ensure the children are booked on flights departing Australia the day following the conclusion of the school term unless the parties otherwise agree and shall ensure the children's return flights to Australia enables the children to arrive in Australia on or about 8pm on 15 January or such other time as agreed;

(b) When the mother is spending the second part of such holiday period with the children, the mother shall do all things necessary to ensure the children are booked on flights departing Australia at any time on 27 December and shall ensure the children’s return flights to Australia enables the children to arrive in Australia on or about 8pm the Friday before the school term resumes or such other time as agreed.

SPECIAL OCCASIONS

11. Notwithstanding any other order and in the event both parties are in the same country, the children spend time with their parents as follows:

(a) On Father's Day Sunday and the father's birthday each year from 9am to 5pm or, if the father's birthday falls on a school day, for a period of 3 hours on that day with the father;

(b) On Mother's Day Sunday and the mother's birthday each year from 9am to 5pm or, if the mother's birthday falls on a school day, for a period of 3 hours on that day with the mother;

(c) With the father on each of the children's birthdays for a period of 3 hours at a time to be agreed between the parties and in the absence of agreement from 3pm to 6pm in the event the children are not in the father's care that day;

(d) With the mother on each of the children's birthdays for a period of 3 hours at a time to be agreed between the parties and in the absence of agreement from 3pm to 6pm in the event the children are not in the mother's care that day;

(e) In odd numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the father on the first night of Holiday 1, the second night of both Holiday 2 and Holiday 3, and the second night of Holiday 4;

(f) In odd numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the mother on the second night of Holiday 1, the first night of Holiday 2 and the first night of Holiday 4;

(g) In even numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the mother on the first night of Holiday 1, the second night of both Holiday 2 and Holiday 3, and the second night of Holiday 4;

(h) In even numbered years and provided the children are not travelling overseas on the relevant date, the children shall live with the father on the second night of Holiday 1, the first night of Holiday 2 and Holiday 3, and the first night of Holiday 4.

TRAVEL OVERSEAS

12. That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) each party be permitted to travel internationally with the children when the children are in that party's care or at other times as the parties agree upon in writing provided that:

(a) 42 days prior to the intended travel the travelling parent provide to the other a copy of the children's return travel itinerary and details including a contact telephone number and details of all places at which the children are to stay during the period of travel;

(b) The period of travel must only be during the school holiday periods or on a weekend or public holiday save where otherwise agreed in writing between the parties.

13. The parties will do all things necessary and sign all documents required to ensure the children have valid EU, USA and Australian passports at all times and each party will meet one half of the cost of the applications for updated and/or renewed passports for each of the children.

PASSPORTS

14. The father shall retain possession of the children's passports other than when the children are travelling internationally with their mother from time to time.

GENERAL ORDERS

15. That any order placing the children's names on the Airport Watchlist shall stand discharged immediately upon the making of these orders, so that the children's names are no longer on the Airport Watchlist and the parties shall do all acts and things and sign all documents necessary and as required by him or her to ensure that the children's name are removed from the Airport Watchlist.

16. That unless otherwise specified in these orders, changeover shall occur at school and if a non-school day, the parent receiving the children into their care shall collect the children from the other parent with changeover to take place at 9am.

17. Notwithstanding any order to the contrary each parent shall be permitted to attend the children’s extracurricular activities.

18. The parties shall ensure that the other parents' details are provided to any school the children are enrolled in, and that the other parent's name is listed as the next of kin in any form concerning the children’s education, health, future care, welfare or development.

19. In the event either child is taken to hospital for any reason or consults a specialist whilst in the mother's care the mother shall promptly inform the father of the name of the hospital, treating doctor and authorise the father to contact the hospital/doctor/ specialist to make enquiries as to the children’s wellbeing.

20. In the event either child is taken to hospital for any reason or consults a specialist whilst in the father’s care the father shall promptly inform the mother of the name of the hospital, treating doctor and authorise the mother to contact the hospital/doctor/ specialist to make enquiries as to the children’s wellbeing.

21. That neither parent shall criticise or denigrate the other parent to the children or within hearing distance of the children.

22. That each parent notify the other as soon as possible, and in any event, within five (5) hours of any serious injury or illness suffered by the children whilst with that parent.

23. That each party notify the other no more than 48 hours after any change to their address and/or landline and/or mobile number and/or their email address.

24. That each party notify the other of the address and telephone numbers of the place/s where the children will be staying during holiday periods in Australia spent away from their residence not later than 24 hours prior to the commencement of any such holiday.

25. That the parent with whom the children are living with shall ensure the children are able to electronically communicate with the absent parent whenever they so wish.

26. That the mother shall do all things necessary to forthwith seek the entry of orders in a court of competent jurisdiction in France in identical terms to the Orders made by this Court.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

What is important and what I have been at pains to point out is that the mother is not acting selfishly or putting her needs above the children’s needs in her desire to live and work in City B with the children for her sound reasons, and that this principle applies to both parents. Children live with their parents and parents are entitled to maximise their happiness and career prospects and make decisions that they see are best for not only themselves but also their children. Children do not live in a vacuum but with adults whose choices and behaviours have consequences for them. APPLYING THE LAW TO THE FACTS Going to the provisions of the Act. The children benefit from a meaningful relationship with each of their parents. Mr D was clear in his reports and oral evidence that whether the children live with their mother in France or with their father in Australia they will maintain the strong and attached relationship with each of their parents. The children have not been subjected to abuse, neglect or family violence and are parented by their parents to a high level. Both parents have taken all opportunities to be involved in their children’s lives and take the responsibility of parenthood seriously. The parents each support the children equally, having entered into a Binding Child Support Agreement. The children were born in Australia, however their mother is French and they have travelled extensively with their parents overseas prior to and post separation and they have family and connections to France as they do to Australia. The father has always lived in Australia with the children and his family have been an important part of the children’s day-to-day and usual care arrangements. It is the mother who has travelled for work since about 2012. The nature of the children’s relationship with their parents. The children have a close and attached relationship with each parent and love each parent. I accept that in terms of caring for the children and providing for their needs the parents are interchangeable however I have formed the view on the evidence from what the children said to Mr D that their mother is their closest emotional attachment. That X has a greater need to be physically near her mother than for Y and X said she is the parent they would first go to if stressed or distressed and, to use Y’s words, his mother does things “for” him and his father does things “with” him. The father has a deficit in his parenting in that he is inflexible and unable to, at times, even contemplate change. He has been unable to put the needs of his children to the forefront and provide to them the additional time they sought with their mother, particularly in the second half of 2020 when they missed out on nine weeks of time with her. The father’s rigid adherence to “the plan”, as he called it, did not serve the children well. His failure to acknowledge that their need to spend time with their mother was of far greater importance than sticking to the plan is of concern for in this matter the parent who has the children in their care will need to be proactive, positive and adaptable in encouraging the children’s relationship with the absent parent.

Evidence

Evidence Before The Court

The mother made an application to put in place this varied arrangement which the Independent Children's Lawyer supported. The father would not agree.FATHER’S EVIDENCE The applicant father was cross-examined initially by Ms Christie SC. The father agreed, and it is clear, both the children are talented students, particularly Y. They are progressing extremely well at school and there can be nothing other than that the father and the mother have provided exemplary care to the children post-separation. The mother has travelled overseas for work for many years. From 2012 the mother's time travelling for work increased to about 80 nights a year, culminating in some 147 nights per year prior to separation.[5] Whilst the mother was travelling for work there is no doubt the father, assisted by a nanny, cared for the children. The father would not agree that in 2020 the mother continued to provide the children with a stable, secure or a predictable home despite COVID-19. That was unfair of him for the following. [5] Affidavit of the father filed 8 March 2021 at [58]. The mother has rented a home in Sydney at a cost of $10,000 per month to provide stable and secure accommodation for the children when in her care in the week-about arrangement. The mother had no control over the restrictions placed on travellers to Australia. The husband did not acknowledge her need to travel to Europe to maintain her income, honour her binding child support agreement obligations and to attend to personal matters that are important to her such as the death of her grandmother. The father has no such pull on his life. His life and family are in Australia and it would have behoved him to understand the mother’s difficulties in this regard. It is correct that since very early after separation the mother raised with the father that she wished to relocate to live near to where her mother was living which, at that time, was City DD and subsequently her mother has moved to City B. Thus, it was an error for Mr D to say at paragraph 4 of the first report: Over the last four years, Mr and Mrs Bergmann have continued an equal care arrangement. Following the physical separation, Mrs Bergmann effectively travelled during the week when the children were in their father's care. Notwithstanding that this has been a functional arrangement, according to Mrs Bergmann, it has taken a huge physical and psychological toll, culminating in her wish to relocate with the children to City B. The error was his opinion that it was only due to the huge physical and emotional toll placed on the mother travelling back to Australia each second week to parent her children that caused her to want to live in City B. The reality is this has been her desire for a much longer period of time, namely to live overseas with her children and where her mother was living and the father was aware of this long held desire of the mother. The father has been well aware since separation the mother has wanted to live in Europe and live where her mother lived which, in February 2019, was City DD. Thus when the mother sought to live with the children in City B, this was not a change of her plans with no reason.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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