C and S

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	C and S [2010] FCWA 78
CORAM	:	MARTIN J
HEARD	:	5 MARCH, 9 APRIL, 2 AND 21 JUNE 2010
DELIVERED	:	22 JULY 2010
PUBLISHED	:	27 JULY 2010
FILE NO/S	:	PTW 5864 of 2007
BETWEEN	:	C Applicant/Father
AND
S Respondent/Mother
Catchwords:

Family Law - Children - Relocation - USA - Wife remarried - Views of children

Legislation:

Family Law Act 1975 (Cth) s 60B
Family Law Act 1975 (Cth) s 60CA
Family Law Act 1975 (Cth) s 60CC

Family Law Act 1975 (Cth) s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
(Page 2)
Respondent	:	Mr Kuurstra and Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Anthony R Clarke & Associates

Case(s) referred to in judgment(s):

Goode and Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) FLC 93-424
Taylor and Barker (2007) FLC 93-345
Wiley v Wiley [2008] FamCAFC 153
Ferraro and Bryant [2008] FCWA 132

(Page 3)

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES, PLACES AND IDENTIFYING DETAILS HAVE
BEEN CHANGED

1 The issues to be decided are the parties’ applications filed for parenting orders.
The applicant father’s was filed on 11 November 2008. The respondent filed her response on 11 November 2008.
2 The principal issue for determination was whether the respondent should be
permitted to relocate to the United States of America (“USA”) with the children of the marriage, a girl aged nearly 16 years, and a boy, just aged 12 years, to join her present husband.
3 There are issues between the parties as to the appropriate arrangements for the

father to maintain his relationship with the children in the event the mother is
permitted to relocate with them.
4 At trial, the orders sought by the parties were extensive and detailed. The orders sought by each party are set out almost in full in this judgment.

Background

5 The father [(“Ronald”)] was born [in] August 1968 and is a [tradesman] and photographer. The mother [(“Diana”)] was born in [the UK] [in] November 1971, migrating to [Australia] with her family in 1980. The mother moved to Perth in 1986 when she received a [sporting] scholarship.
6 The parties met in 1993, and married [in] November 1997.
7 Their two children are:-

• Kara C born [in] August 1994
• Dougall C, born [in] July 1998
8 The family relocated to the USA on 14 February 2007, on the mother’s
[sporting] visa. The father says the move was for the mother’s career, but at the time, it was a family decision as it was considered there would be better opportunities for the family in the USA.
9 The mother said that parties separated in June 2007, and the father says it was on
about 28 August 2007, when the father left the former matrimonial home then in [O state]. It is common ground that the father returned to Australia, in April 2007, to finalise matters for the final move to the USA, but then returned to the USA for about two weeks in August 2007.
10 A divorce was granted on 2 December 2008.

(Page 4)

11 The mother began dating her present husband, [Richard S], in October 2007, and
the couple commenced a de facto relationship in February 2008, having met at a [sporting venue]. Richard is 32 years old, and manager of a very small branch of a bank in [O]. He has a degree in finance.
12 Richard and Diana married [in] February 2009, when Richard was visiting Perth. children, although the mother was involved more than the father, especially when the children were young.
13 During the relationship, both parties were actively involved in the care of the
14 When they moved to [O state], the parties decided to sell their matrimonial home

in [the northern suburbs]. The home sold for $465,000 and the bank loan was repaid.
The father initially retained the net equity of $160,000 in his bank account.
15 The children visited Perth in July 2007, but the mother’s evidence is that the

father threatened not to let them return to the USA, where, she said, they were then
habitually resident.
16 The mother consulted lawyers and eventually the children were returned voluntarily in August 2007, the father returning too.
17 The father left the USA on about the date of separation. He did not tell the
mother or the children he was leaving as she had threatened to obtain an injunction to prevent him doing so. He accepts he was in a very bad emotional state at the time, and says that he felt it was not in the children’s interests to see him like that.
18 The mother commenced proceedings in the Court of Common Pleas, [D County], O state, on 31 August 2007.
19 On 18 September 2007, the mother obtained a restraining order against the
father. On 15 November 2007, the mother obtained orders for sole custody, care and control of the children and “alimony”. The orders then referred to the mother as being employed by [NTL] and the [FF] and being paid an income of $12,000 per year, and the father being employed by [SC] and being paid an income of $258,000 per year. It also refers to the father also being employed by [AI].
20 On this basis, it was ordered that the father pay child support of $4,749 per
month.
21 The father was to have “reasonable rights of visitation with Kara and Dougall.
Visitation should not be out of [D or F] County without the written consent of Diana or this Court.” The orders referred to “this matter should come on for trial on Friday, December 21, 2007”.
22 The father commenced proceedings in this Court on 5 November 2007, seeking

equal shared parental responsibility and equal shared care. He sought orders that the
children be required to return to Western Australia.
23 On 18 December 2007, the mother filed a form 2 application seeking a stay of the proceedings in Western Australia because of the ongoing proceedings in the USA.

(Page 5)

24 The proceedings were adjourned.
25 In February 2008, Kara returned to Perth to live with her father.
Understandably, Kara was very confused at the time, and there is some evidence that one of the reasons she returned to Perth was that she was concerned about her father’s emotional state. She has also said, in a letter, that she was very upset with her mother at the time, whose social life she blamed for the marriage breakdown, and whom she feels left her to look after Dougall, and undertake home duties far too much both before, and after separation while she was “dating”.
26 Orders by consent were made in relation to the children of the marriage on the 28 April 2008, and in relation to the parties’ property on 23 May 2008.
27 The children’s orders provided:-

1. The parties retain equal shared parental responsibility for the children.
2. The child, Kara live with the father.
3. The child, Dougall, live with the mother.
4. The father do all things necessary to arrange for Kara’s return flight to Australia from the United States of America.

28 The children were to communicate with the other parent:-

• By telephone, letter, email, webcam and Skype.
• By “face to face” time in Australia for any or all of the United States school vacation periods (save for Christmas) as nominated by the father.
• During the Christmas period in the year 2008 and each alternate year thereafter at times as nominated by the father.
• At other times as agreed between the parties.
29 Each parent was to book and pay for the return flights for the child who was not
residing with them, to spend time with them, and provide a minimum one month’s notice, or such other period as agreed between the parties, of the flight details, and a copy of the flight itinerary.
30 The mother was to do all things necessary to discontinue the proceedings in D
County.
31 In relation to property settlement, the orders provided for the father to pay to the
mother the sum of $43,000 and each party then retain their respective assets. According to the Form 11, this meant that the father was to retain $72,000 from the proceeds of sale of the house and the mother $43,000.

(Page 6)
32	The parties stated that the mother was to receive assets worth $135,600 and the
father assets worth $99,000. The mother’s assets included furniture purchased in the USA with an estimated value of $50,000, which she now says is worth about $10,000.
33	The mother denies the father’s allegations that she agreed to Kara returning to Perth so she would receive an expedited property settlement.
34	In June 2008, Dougall returned to Perth to spend some time with his father who,
according to the mother, then informed the mother he would not send Dougall back to live with her in the USA. The father said that this was by agreement because the mother was in difficulties with her USA visa and the child could be immediately returned to Australia if he arrived at an airport in the USA. Apparently, the mother had breached the terms of her [sporting] extraordinary abilities visa by changing jobs.
35	The mother said Dougall had been due to return to the United States on 19 July
2008, and the father said it was on 18 August 2008. The mother has said it was the father who alerted the USA authorities to the mother’s position.

36 In July 2008, the father had enrolled Dougall into Year 4 at [the local] Primary
School.
37 The children had, since their return to Perth, been having regular visits, weekly
or fortnightly, with their maternal grandmother after school by arrangement, then also seeing their uncle and aunt in [the suburbs], and had only had telephone contact with their mother.
38 The mother returned to Western Australia on 4 November 2008. Her evidence is
that she had remained in the USA to try and sort out her visa problem, but it was not possible without her leaving the USA. At that time, it was intended that Richard would travel to Western Australia in early 2009, and the parties would then marry. Afterwards, Richard was going to return to the USA.
39 At para 34 of her affidavit filed on 21 November 2008, the mother said “we will
then apply to the United States immigration authorities to enable myself, [Dougall] and [Kara] (in case, at the time, she wants to do so) to reside with us there. … The processing of that application will take at least six to eight months. I will, therefore, be living in Western Australia at least until August 2009, probably later. … I will not be able to travel to the United States, even to visit, until my application is granted, nor will my children.”
40 The mother did not inform the father, or the children, she was returning to
Australia “to surprise the children”, and the children were expecting on the day of her return, to be seeing their grandmother. The mother immediately retained Dougall as he expressed a wish to stay with her. Technically she had the right to do so pursuant to the consent orders of April 2008, made when the parties were living in separate countries.
41 On 11 November 2008, the father filed a form 1 seeking that the orders of

28 April 2008, be varied to provide that the child, Dougall, live with the father and
spend time with the mother as agreed between the parties. He also sought that the
(Page 7)

child, Kara spend time with, and communicate with, the mother in accordance with her
wishes.
42 At that time, the mother was living with her brother and sister-in-law, [Mr and
Mrs S] in the [suburbs]. Dougall was then living with her as he had refused to return to his father once his mother arrived in Perth, and Kara was with her father. The mother had enrolled Dougall at [the local primary school] in early November 2008, and proposed to enrol him at [another primary school], which is in the [town] area.
43 Both parties were then represented by soliciors.
44 On 24 November 2008, it was ordered in the Magistrate’s Court:-

• As soon as practicable, the mother cause Dougall to be re-enrolled at [a suburban primary school], pending completion of the 2008 school year.
• Until further order, notwithstanding the provisions of the April 2008 consent orders, the father spend reasonable time with Dougall, and the respondent spend reasonable time with Kara with the intent that the children spend time together.
• By consent, until further order, without admission, each of the parties be restrained by injunction from removing or attempting to remove Dougall from the Commonwealth of Australia.
45 On 15 December 2008, it was ordered that the children spend approximately
alternate weeks with each parent during the summer school holidays. Both parties were to promptly take all steps necessary to arrange counselling and therapy for the children.
46 On 22 December 2008, the mother filed a form 1A application seeking that both

children live with her, and the mother have liberty to remove the children from the
Commonwealth of Australia to reside in the USA.
47 The father attempted to file an appeal in relation to the orders of 24 November 2008, but, it seems, did not proceed with this.
48 On 29 December 2008, the mother filed a further affidavit. At that time she
accepted that Kara wished to live with her father. She said that it still remained the case that it may take all, or the majority, of 2009 to obtain a visa to enable her to return to the United States with Dougall. At that time, the mother had taken a six month lease on a property in [the northern suburbs].
49 On 29 January 2009, I included the proceedings in the defended list, and

included the case in the July Callover. The parties were to attend a Child Dispute
Conference.
50 The parties attended a conference with a Family Consultant on 3 April 2009 who
reported:-
“Both parties confirm that both [Kara] (14) and [Dougall] (10) are currently living with the mother. The mother stated that [Kara] decided that she wished to live with her and moved to her home in late January
(Page 8)
2009. The father’s perspective on this issue was that [Kara] shifted to live with the mother when he was required to travel overseas on business in early March 2009. The father confirmed that he has no intention of disputing the current living arrangements of the children while they remain in Western Australia, however he remains undecided whether the children returning to live in the USA is in their best interest. He stated he feels that if the children live in the USA the mother would obstruct his future contact with them.
The mother confirmed that she was married to [Mr Richard S] [in] February 2009. She stated that [Mr S] has instructed an American legal firm to initiate the process for obtaining an immigration visa for her and the children. The father stated that if he is informed that the immigration visas are approved for the children, then he might be prepared to negotiate final orders for the children to live with the mother in the USA. He confirmed that he wishes to consult his solicitor about this issue.
[Reference was then made to the formalising of then current arrangements
by Court order]
The mother stated that it is her preference for the children not be drawn into the Court process. Her preference is for the children to be interviewed as she believes that the children have already indicated to their father that they want to live with her in the USA. However, her concern is that if the children wishes are not sought, the father will simply delay the Court process and therefore delay her return to her husband in the USA. The mother stated that she will discuss this issue with her solicitor.
The father acknowledged that [Dougall] “absolutely” wishes to return to the USA. He also stated that [Kara] had told him, “I’m thinking of going back with Mum too”. The father still seemed unsure of [Kara]’s true wishes whereas the mother was quite definite that [Kara] wishes to return with her to the USA.”

51 [The Family Consultant] went on to refer to the fact that he had outlined to the

parties, as an alternative to a family report, a child inclusive Child Dispute
Conference. The father proposed to consult his solicitor about the proposal.
52 On 14 May 2009, I made orders by consent, until further order, that the child,
Kara live with her mother. Until further order, and subject to Kara’s wishes, she was to spend time and communicate with the father as follows:-

•

Each alternate weekend from the conclusion of school Thursday, until the commencement of school on Monday (or Tuesday in the event of a long weekend).

•

For half of all school term holidays as agreed, and failing agreement for the first half of the school holidays.
• For half of the long summer school holidays on a week about basis.
• By telephone, letter, email, webcam and Skype.
(Page 9)

• On special occasions.
53 At the hearing on 14 May 2009, both parties then being legally represented, I
was informed that the parties had agreed in principle that the mother and the children would be permitted to relocate to the USA. The issues between the parties related to contact between the father and children following their relocation and the financial arrangements. It was decided that the proceedings would be listed for hearing in the near future once it was known whether the mother’s application was likely to be successful, and if so, when she would be permitted to leave.
54 The proceedings were listed for hearing as a short case. The date was to be vacated if the mother’s visa application was not successful by then.
55 The next hearing was then cancelled as there had been no advice in relation to the visa application.
56 On 21 September 2009, the mother’s then solicitors wrote to the Court seeking a
relisting of the proceedings, because the mother had been advised that, within the next two to six weeks, she would receive an interview notice requiring her attend at the USA Embassy in Sydney, with the children, for interviews.
57 On 8 October 2009, I ordered that, as soon as practicable, the father provide to
the mother the passports for the children for the purposes of attending medical appointments on 15 October 2009. Immediately afterwards the passports were to be lodged with the Principal Registrar of the Family Court of Western Australia, to be retained and uplifted by the party:-

• on receipt of the written consent of the non uplifting party;
• for the purpose of the mother taking the passports to Sydney;
• for the purposes of attending interviews with the United States Government authorities;
• pursuant to further order of the Court.
58 The mother was to keep the father fully informed of developments.
59 It was ordered that, until further order, without admission, each of the parties be
restrained by injunction from removing or attempting to remove Kara from the Commonwealth of Australia. The same order in relation to the child, Dougall, had been made by consent on the 24 November 2008.
60 It was further ordered that the proceedings be listed for further hearing by
arrangement as soon as practicable, once it was ascertained when the mother was most likely to be able to remove the children from the Commonwealth of Australia to travel to the USA. The then estimated hearing time was one half day.
61 By letter dated 7 January 2010, the mother’s then solicitors requested a relisting of the application. The solicitors said:-
“[Ms S (formally C)] has been granted approval to reside in the United

States of America, however, she has been advised that the United States
(Page 10)
authorities will not process her application to finality (the next stage being an Embassy interview) nor proceed to consider further the applications of the two relevant children in this case unless and until [Mr C] consents to those applications.
Via his solicitors, we have submitted documents to [Mr C] for him to sign and return to evidence his consent, however, he has told our client directly that he will not sign those documents.
We have explained to the solicitors for [Mr C] that the execution of those documents by [Mr C] does not affect the injunctions prohibiting [Ms S] from removing the children from the Commonwealth of Australia for the present time, however, but are merely part and parcel of the process of obtaining the necessary approvals for migration.”

62 The proceedings were initially listed for directions, and then for further hearing on 10 February 2010.
63 On 2 February 2010, the father’s solicitors filed a notice of ceasing to act.
64 On 5 February 2010, the mother filed a minute seeking an order that the father be required to sign the consent documents.
65 On the hearing date of 10 February 2010, orders were made for the parties to file
further documents, and the proceedings adjourned for hearing to 5 March 2010. It was also ordered, if practicable (as it was an unusual step in the circumstances), a conference be arranged with a Registrar prior to that time. No agreement was reached at the conference. At that stage, the father’s position was that he was only prepared to consent to the children going if all the conditions in his minute filed in March were met – these were in the terms of his final orders sought.
66 At the hearing on 5 March 2010, the respondent’s present husband, Richard,
who had travelled from the USA, gave evidence and was cross-examined. The applicant gave some brief evidence. The proceedings were then adjourned for further hearing to 9 April 2010.
67 At that time, I was informed that the USA authorities had indicated that, in the
event that the father retained parental rights, that no order I could make could be accepted by the USA authorities as obviating the need for the father’s signature on the authorisation. The document that the mother’s then solicitors had sought that the father sign was in the following terms:-
“Dear Sir or Madam
IMMIGRANT VISA PETITIONS
PETITIONER “[Richard S]” in respect of:-
[the children’s name – separately stated] …
I am the biological father of the child referred to above.
(Page 11)
At the request of the above named petitioner, who is the husband of my former wife, [Diana S (formerly C)], I write to advise that I consent and grant my permission for the above named child to immigrate to the United States of America.
I am an Australian Citizen.
Confirmation of my consent, if required, can be obtained by contacting me at the above address and telephone number.
Yours faithfully
[Ronald C]”

68 I was informed the mother was granted a USA visa on 6 April 2010.
69 On 9 April 2010, further directions were made, and the parties were required to
file further documentation. By then, it was clear that the father sought to oppose the children’s relocation altogether, as he could not accept that it was in the children’s best interests to be separated from him and living away from Perth. He said he had told the children that he would consider them leaving if the mother obtained a valid visa – which he did not think likely. The issue of whether the father, depending on the outcome of the proceedings, would be prepared to sign the documentation for the USA authorities was canvassed. It was submitted by the mother’s then solicitors that a solution would be to make orders for the mother to have sole parental responsibility.
70 The proceedings were then listed for a further one day hearing on 2 June 2010, which extended into another half a day on 21 June 2010.
71 Further witnesses included the parties, the mother’s present husband by

telephone from O state, the mother’s mother, [Mrs V], and [Mrs S], the mother’s
sister-in-law.
72 As to the parties’ credibility, both have been frank and honest in their evidence, but understandably, their positions are affected by their own perceptions.

The mother’s proposals

73 The mother sought to return to the United States with the children as soon as she

could. However, there would inevitably be some delay while the visa arrangements
were finalised.
74 Since returning to Perth, the mother had been living with the children in rental
accommodation, and the children have been spending time with their father on weekends and holidays. In the hope that arrangements could be finalised in the near future, when the mother’s lease expired on her rented home, she did not obtain alternate rental accommodation.

(Page 12)

Since early December 2009, she has been living in a one bedroom retirement

villa, in Gosnells, with her mother and the two children. Obviously, the living
arrangements are extremely cramped.

Richard is purchasing his own home in O state]. He is a branch manager at a

bank in O state. He has worked with his present employer for six years. He has been recently interviewed for a position with a slightly higher salary. He has been undertaking additional studies, and has been progressing very well in his employment. At trial, he was looking to pursue a master’s degree which would take 16 months of schooling online. To do this, he had received $5,000 per annum reimbursement for costs from his employer.

At trial, he was earning approximately US$51,000 per annum before tax, but the income tax rate is less than in Australia.

His proposal, for the time being, is to remain in his present type of employment and seek further promotion in due course.

The mother proposes the children would return to the same school district as

previously. Dougall would attend the [O] Elementary School and Kara would attend
[O] High School. She had previously attended [O] Middle School.

Both children still have friends that attend these schools with whom they have kept regular contact, especially Kara.

Dougall, in particular, has taken to sporting activities in O state being interested

in wrestling and ice-skating. He has been going ice-skating weekly while he has been
in Perth.

Kara has said that she wishes to attend college and study criminal psychology.

The mother says that college will be far more accessible for the children in the USA. The entry requirements are vastly different from Australia, and allow more flexibility in regard to entry requirements and course structure.

The mother’s evidence is that she and Richard would be far more financially

secure living in the United States. They have incurred much additional expense as they had to maintain two homes, and have had large telephone and computer expenses to keep in touch.

The mother says that petrol is presently costing her $130-$150 per week due to the distance being travelled to the children’s school.

Diana and Kara’s health club membership would reduce from AUD$99 per month to US$20 a month.

The cost of living is substantially less in the USA for homes, petrol, cars,

clothing, groceries and entertainment. The mortgage for her and Richard for their new condominium is US$725 monthly. Her previous rent for a villa in [the northern suburbs] was AUD$1,440 monthly. The cost of homes in the USA is less than half of the cost to buy an equivalent home in a comparable suburb in Perth. She and Richard own their car in the USA outright, but in Australia she has been using her mother’s

(Page 13)

car. The car in the USA was worth about $20,000 in 2007. She and Richard have a
houseful of furniture in the USA.

Richard’s home has two bedrooms and two and a half bathrooms, so the

couple’s intention would be to sell this home and purchase another larger property, but first look at renting for a time. If Kara returned to O state with Diana and Dougall, another bedroom would be required.

The couple have a joint bank account. The mother apparently has about $9,000 in superannuation here with CBUS.

The home is worth $151,000 and is subject to a mortgage of $117,000. Richard has superannuation worth about $39,000. (I believe these amounts are in US dollars.)

The couple have incurred very substantial costs, not only as a result of these proceedings, but because of the immigration procedures.

•	Immigration attorney - $6,000
•	Fees to USA government - $4,000
•	Medicals for the mother and the children – approximately $1,200
•	Police clearance - $145
•	Flight and accommodation to Sydney to attend immigration interview – two visits required - $815 for one visit for the mother.

As to her employment in Australia, the mother has been working as a data entry

operator with [ a government agency]. As an experienced [athlete], she has generally worked in the fitness industry. On her return to the United States, the mother proposes to take employment that will have a minimum effect on the children and work in with their routine and schedule, perhaps as a personal trainer or a customer services operator with a bank. The mother would like to have a child with Richard, and if she fell pregnant she would not work for a time.

As to involvement with extended family members, Diana has received enormous

support from her mother, Mrs V. Not only has Mrs V accommodated the family during this year, in what must be very difficult circumstances, but she has usually driven Dougall to and from school in the far northern suburbs which has been taking about three hours per day! Kara is dropped off on the way at [the local] train station, as she attends a Senior High School.

Mrs V’s evidence is that she will be sorry to see the family leave, but she

supports her daughter’s application. She would hope to visit the USA twice a year in summer and at Christmas, and spend time with the children when they visit Perth. She is presently in good health and is 74 years of age.

The children have had some involvement with members of Richard’s family

who live in O state, but not in [the same town]. Richard’s mother has been ill with ovarian cancer for a number of years, and her condition is deteriorating. She lives about 2 ¾ hours drive away and Richard sees her approximately monthly. His sister

(Page 14)

lives about two hours drive away in [another town in the O state] – Richard says he
speaks to her on the telephone about three times per week.

Reasons given by the mother for seeking to relocate with the children

• The children have consistently expressed the desire to return to live in the USA.

•

She and Richard can provide the children with a stable, happy, carefree and loving family environment.

•

The children have previously lived in the USA so they know to what they would be returning.

•

She and Richard would be far more secure financially living in the USA. I have already referred to her evidence in this regard in more detail.

•

Permitting the children to relocate would improve the children’s relationship with their father, which has been strained because of his opposition to their departure.

•

The children have had little involvement with the father’s family, who live in [the eastern states].

•

It is practicable for the children to maintain regular contact with their father by phone, Skype or returning to Australia to visit. The mother has always abided by Court orders and will continue to do so from the USA. The children have always said they want to return to Australia regularly to visit their father, family members and their friends.

•

The children’s, with the mother’s, visas have already been approved, in principle and they could realistically return to the USA within a couple of months, allowing their lives to finally be settled. If the children were made to wait until they are 18 years of age to come to the USA, they would have to apply, and gain, visas individually, as they would no longer be included under their mother’s acceptance.

•

Although it could be possible for Richard to relocate to Western Australia and obtain employment here, there would be no guarantee that his visa application would be accepted. In the event that he did apply for a visa, the mother has been informed that it would take a minimum of four to five months to assess the application. A visa application fee of $1,705 be required, a police clearance, a medical, and immigration attorney fees.

•

The prospect of Richard relocating to Australia would place his career in jeopardy and uncertainty and there is no certainty that his qualifications would be acknowledged in Australia.

•

The children would be included in Richard’s full health insurance in the USA. This is subsidised by his employer.

•

Richard’s first trip outside the USA was to visit the family in Perth in February 2009 so he has no experience of living or travelling overseas away from his home. He has said he would have difficulty emotionally in coping with this – I accept this is the case, if only at the moment, because of his mother’s health.
(Page 15)
95 In summary the mother said “being unable to return to live in USA with my
husband and children is incomprehensible and distressing to think about. My home is in the USA now; I lived there for two years and fell in love with not only my husband, but the people, lifestyle and opportunities. I have made many great friends in the USA, many more than I ever had in Australia, who I miss terribly. I couldn’t imagine having to stay in Australia on a permanent basis, even if Richard had to immigrate here, Australia does not feel like home anymore. … I can’t put into words how difficult the last 18 months have been, being separated from my husband and the whole process of Court and immigration; I couldn’t imagine having to go through it all again. …”

96 “Deciding whether to transport our possessions from America, which from
previous experience is extremely costly, or sell them for less than replacement value. We also have to consider our family pets. We have one dog and three cats. One of our cats we brought with us from Australia. To bring our pets to Australia would be expensive and they would have to endure quarantine entering Australia. Our only other option would be to find homes for them, which is a devastating thought, as we consider them part of our family.”
97 As to the arrangements for the children to remain in contact with their father, the
mother proposes that the father spend time with, and have contact with Kara in accordance with her wishes. The mother’s evidence as to the children’s views as at mid May 2009, was that Kara had advised that, during the summer vacation between June and August, she wishes to return to Australia for four weeks beginning on the seventh week of the holidays which would allow her to return one week prior to commencement of the school year. She proposes visiting Australia every second Christmas for two weeks starting in 2011. If the father visits the USA, she would want to definitely see her father regularly during his stay and be happy to stay with him for a couple of nights at his hotel, but would not like to stay at the hotel for a week or more.
98 The mother proposes the father spend time with Dougall, subject to his wishes with effect from 1 January 2013 as follows:-

•

In Australia, during each northern hemisphere summer school vacation – for a period of six weeks, to commence within seven days following the start of each such vacation period, or commencing at such alternative time as is agreed between the parties.

•

In Australia, during each northern hemisphere Christmas school vacation period commencing in the 2011/2012 Christmas period, and each such alternate Christmas vacation period thereafter, for a period of two weeks (with the children being able to commence any necessary travel two days before the end of the relevant school semester).

•

For reasonable periods in the United States as agreed between the parties provided that such periods are outside school hours, subject to the father giving to the mother not less than seven days notice in writing of his intention to spend such time with the children where the proposed time is during school semesters and not less than two calendar months of such intention when the proposed visit is during school holidays.
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• At all reasonable times by telephone (but not SMS), letter, email, webcam and Skype.
• At such other or alternative times the parties shall agree.
• For the purpose of any travel by the children between the USA and Western Australia, the mother shall make arrangements for, and pay the costs of, each child’s return airfares for the first period during which each child spends time with the father, and each alternate period for each child thereafter, and the father make arrangements for, and pay the cost of, each child’s return airfares for each intervening trip.
• Following relocation of the children, during any period in which the children spend time with the father in Western Australia, the father allow the children to spend no less than three hours in each week with their maternal grandmother and/or other members of the mother’s family in Western Australia.
99 Orders were also proposed to facilitate relocation such as provision of passports,

and orders in relation to keeping the father informed as to the progress of the children
and any medical issues.

The father’s proposals

100 The father’s proposes that the children remain in Australia until they attain the
age of 18 years.
101 He sought that, until further order, the children reside with their mother and spend time and communicate with their father:-

• Each alternate weekend from the conclusion of school on Thursday, until the commencement of school Monday (or Tuesday in the event of a long weekend).
• For half of the school term holidays as agreed, or failing agreement, for the first half of the school holidays.
• For half of the long summer school holidays on a week about basis commencing after the last school day with the father having the first week.
• By telephone, letter, Skype and webcam.
• On special occasions.
• The father have the ability every second Christmas to have the children travel to the Eastern States to spend Christmas with the father’s family.
• If the father has work commitments and is unable to have to the children on his allocated weekend, he have the ability to make up this time with the children on either the following weekend, or during the week.
102 In the event that the children are permitted to relocate to the USA he proposed
that:-

• All matters relating to the children be governed by Australian law.
• The children remain Australian citizens until the age of 18 years.
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•

The father spend time with the children on four occasions during any given calendar year with a minimum stay in Australia to be two weeks and a minimum of four weeks in the long school vacation, unless agreed between both parties.

•

The time in Australia should include every second Christmas at a minimum, or every Christmas if travel is difficult for other times during the year for the children.

•

The father sought the mother provide AUS$30,000 “assurity” to be held by the Family Court of Western Australia or a trust fund held by an independent party or lawyers.

•

The mother’s proportion of the airfares be deducted from the assurity fund upon quotation/receipt of flights and monies released to the father by the Family Court of Western Australia. This would reduce the amount of funds on a sliding scale until the children reach the age of 21 years.

•

In the event that the children, because of the USA school holidays, or any other reasons, be unable to travel to Australia, the father would be prepared to travel to the United States covering his own accommodation, car hire, loss of income and incidentals, as long as the mother covers the Qantas (and airline partners) airfare cost and taxis. These funds are to come out of the assurity fund upon receipt/quotation by the father of the relevant costs to the Courts.

•

The children’s visitations with the father continue until they have reached the age of 21 years unless otherwise agreed between both parties.

•

The father cover 25% of air travel taken by the children, to be deducted from the airfares payable by the mother and redeemed from the Family Court of Western Australia or the trust fund. This assurity should not fall below AUD$15,000 and the mother be required to deposit additional funds to ensure the balance is maintained.

•

The children contact and speak to the father at least once per week by telephone and other contact be made by SMS text, Skype, email, webcam, etc. The father be permitted to contact the children on at least one other occasion each week in the same manner.
• Full medical and dental cover for the children must be in place at all times.

•

The father should not pay maintenance for the children for the duration they are residing in the United States as this would be covered by the 25% paid for the children’s airfares.
• The father is to book all flights for him and the children.

•

The father book the children’s flights as unaccompanied minors and ensure they have supervision at all times during and between flights, until it is agreed between both parties that the children are of an age to travel by themselves, and can do so legally.

•

Should the mother disregard or breach any of the conditions or Court orders, the residual “assurity” be immediately released to the father to enable Court action, and the ability to cover flights to maintain the relationship with the children.

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• The children stay with the father for the duration of his stay in the United States (up to 14 days maximum), unless otherwise agreed by both parties. The father will ensure the children attend school during these times.
• Should either child request relocation back to Australia to live with the father, the mother should not obstruct this occurring. The cost of the one way airfare would be split 25% to the father and 75% to the mother as per normal flight cost sharing.
• Should only one child return to Australia, the agreement/Court orders be renegotiated and sanctioned and/or ordered by the Family Court of Western Australia.
• The maternal grandmother and any other family members from the mother’s side be entitled to spend time with the children for one day per visit. The grandmother is to collect the children at 9:00 am and return them at 8:00 pm on the same day.
• After Dougall has turned 21 the remaining funds be released to the mother.
• The mother give no less than six weeks notice of leaving Western Australia to relocate to the United States, if or once the visa is granted, so the father’s family can travel to see the children prior to leaving Australia, or the children be able to travel to the East coast to visit the father’s family members.
103 The father also sought non-contentious orders in relation to the passports of the children, and to be kept informed in relation to the children.
104 As to his arrangements for the care of the children, the father proposes to
continue to live in his present accommodation, which is a three bedroom two bathroom rental unit in [the inner city], in a development where he has lived since his return from the United States in August 2007. He has two male flatmates in their 20s at the home who have lived there for a short time and are expected to contribute to expenses. The children have stayed there frequently, and the accommodation, although fairly cramped, as the children do not have a bedroom and sleep in the lounge, is adequate. There are suitable facilities at the units, for example, a swimming pool, gym and sauna. The husband says the children regard weekends there as a bit of a holiday.
105 His employment involves some work as a [tradesman] in Perth, but he also
travels interstate, about two to three times per year, or occasionally overseas as a freelance [magazine] photographer. He says the mother has not been co-operative about organising swapping of weekend arrangements if he is away with work.
106 As a result of some oral evidence regarding the applicant’s financial circumstances, I ordered the parties to file financial statements.
107 The father is, in effect, self employed by [SCPL] of which he is the sole director
and shareholder. His evidence is that he earns $769 per week, and receives $44 per week from investment income and $49 from family benefit. He receives a contribution of $138 per week from his “employer” towards accommodation. Apart from income tax of $92 per week, he pays rent of $540 per week and child support of $81 per week. His assets comprise $20,550 in savings at the ANZ Bank and
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household contents of $4,000. He has superannuation valued at about $26,600. He has a tax debt of $1,461. He said at trial, the company had a debt of $80,000 and no assets of significance.
108 In summary, the issues that the father has raised in opposition to the relocation of the children are:-

• It is in the children’s best interests that they remain living in Australia where they can share a close and loving relationship with all their family members, particularly him.
• The father states that he believes that the children are being given false expectations about life in the USA. Kara has been told, by Richard, she would get a scholarship to university and a car. Dougall has been promised a BB gun when he gets to the USA. Both children have been promised a big five bedroom house. Dougall has already designed his bedroom in a jungle theme. Both children are excited about gaining a step-brother or sister when they get to the USA.
Richard’s evidence was that he had told Kara a scholarship was a possibility if she worked hard, and if she got B grades, she could have a car.

•

All of the children’s extended family members on both sides live in Australia. He has an uncle in Perth whom he and the children see regularly. Only the children’s step-father’s family members live in the USA.

•

Although he had previously been trying to negotiate conditions for maintaining his relationship with the children if they were living in the USA, after gaining more knowledge of the financial and emotional state of “all parties involved”, he has decided it is not in the best interests of the children to live there.

•

Ronald says that his position is that Diana has made basic communication regarding the children’s visitation extremely difficult. He also now has a difficult relationship with Diana’s mother, Mrs V.

•

The mother has always made contacting the children difficult and discouraged his relationship with them. He finds it difficult to maintain a relationship with them when they are only 20 minutes away, let alone if they relocated.

•

Richard has no children, or experience of being a role model to young children. Ronald expressed concern that Richard said in his evidence “there will be a roof over their heads and food on the table” as indicating Richard has very low expectations of what it takes to be a father/provider in the children’s lives.

•

The father has expressed concern about whether the financial circumstances of the mother would really be any better in the USA than here. He points out the fact that Diana currently earns approximately $58,000 in Perth, but has uncertain job prospects in the USA. There she would not have the government assistance currently available to her and the children. Richard and Diana have major commitments and they are proposing to purchase a new house, new vehicle and also start a family. “I cannot see how they could contribute to maintaining a relationship with the father and the extended family members back here in Australia, let alone, manage day to day living.” Ronald well summed up his concerns in his affidavit dated 4 March 2010 as follows:-
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“With all the above and the now fully explained financial situation of the mother I have grave fears for the children’s welfare should they be able to leave Australia and the ability to provide for them both financially, emotionally and spiritually. I am positive that my relationship with the children will dramatically deteriorate and not be encouraged or be financially viable should the relocation occur.”

Relevant legislation and factors and the legal background

109 The objects of Part VII of the Family Law Act 1975 (Cth), and the principles underlying it, are set out in section 60B:-

(1) The objects of this Part are to ensure that the best interests of
children are met by:-

(a)

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 children; and

(b)

protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)

ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)

ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is
or would be contrary to a child’s best interests):-

(a)

children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)

children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)

parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)

parents should agree about the future parenting of their children; and
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(e)

children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

110 Section 60CA of the Family Law Act 1975 (Cth) provides, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Pursuant to s 60CC(1), subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
111 The effect of the provisions of the Family Law Act 1975 (Cth) in relation to what has commonly been termed “relocation cases” have been considered at length in a number of significant cases.
112 The amendments to the Family Law Act 1975 (Cth), which commenced on 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006, made substantial changes to the provisions of the Family Law Act regarding parental responsibility and parenting orders.
113 As the Full Court said in Goode and Goode (2006) FLC 93-286:-
“… it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children.”

114 The legislative intent is subject to qualifications, including the need to protect

children from harm, abuse and family violence and it is also subject to the
arrangements being in the children’s interests and reasonably practicable.
115 The provisions of the previous s 68F(2) are extended, through s 60CC, to
provide that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents, and an additional consideration is the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship, between the child and the other parent.
65DAA(2) of the Act provides if:

(a)

a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

(b)

the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:-

(c)

consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(Page 22)

(d)

consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)

if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

65DAA(3) [Substantial and significant time]
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:-

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and

(b)

the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii)

occasions and events that are of particular significance to the child; and

(c)

the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
65DAA(4):-
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

65DAA(5)

In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a) how far apart the parents live from each other; and

(b)

the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(Page 23)

(c)

the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)

the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.

116 In Taylor and Barker (2007) FLC 93-345, the majority (Bryant CJ and Finn J) in the Full Court of the Family Court of Australia, said, at para 53:-
“We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.”

117 The Court went on to refer to the order in which the Court should consider

whether equal shared care or substantial care is in the child’s best interests in relation
to the relocation proposal.

“62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
63. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.”

118 At para 78, the Court said the legislation gives no guidance as to the stage at
which a Court should commence consideration of the proposal for relocation, but said that if the Court found advantages in either the equal time or substantial time scenarios, the Court would then be required to consider the reasonable practicability of such outcomes, having regard to s 65DAA(5).

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119	In Sealey and Archer [2008] FamCAFC 142 at 67, the Full Court said that nothing in Taylor and Barker could be read as suggesting that a trial Judge should ignore the relocation proposal when making the necessary findings under s 60CC.
120	The approach in Taylor and Barker, has been referred to with approval in other Full Court cases (such as Wiley v Wiley [2008] FamCAFC 153, and by Thackray CJ in Ferraro and Bryant [2008] FCWA 132).
121	Therefore, it would appear that an appropriate approach is to consider and make
any necessary findings under s 60CC, taking into account all the proposals of the parties, including the relocation proposals. Then, if applicable, the equal time, and substantial and significant time positions should be considered, before considering the relocation proposal.
122	In MRR v GR (2010) FLC 93-424, the High Court of Australia recently considered the approach in relocation cases, particularly having regard to consider whether spending equal time with each parent is reasonably practicable. In that case, prior to separation, the parties had been living in Mt Isa, and the wife sought to relocate to Sydney where the parties had lived until January 2007. The proceedings concerned the welfare of a child who was five years old at the time of trial. A Federal Magistrate had determined that the mother should not be permitted to relocate.
123	The Full Court of the Family Court of Australia, had dismissed the mother’s appeal. The High Court said (French CJ, Gummow, Hayne, Kiefel and Bell JJ):-

14. His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour “did not expressly address the issue of whether an equal time arrangement would be ‘reasonably practicable’”. However, the Court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child's best interests. But those matters could be relevant only to the question posed by para (a) of s 65DAA(1), not the question in para (b), which required consideration of other, different matters.
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

(Page 25)

124 Having considered the mother’s unsatisfactory living

circumstances in Mt Isa, the Court said:-
19. The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.
20. The orders made by his Honour did include one to the effect that if the mother did not live in Mount Isa, then the child should live with the father and the mother spend time with and communicate with the child at reasonable times to be agreed. No reasons were given concerning the order. It may have been intended as an interim order, to cover the contingency that the mother did not remain in Mount Isa and make provision for what was to occur until further consideration could be given by the Court, having regard to the changed circumstances of the parties. It could not be an order under s 65D, the statutory criteria not having been addressed.

21. It is for these reasons that, when pronouncing orders on 3 December 2009, this Court expressed the opinion that the Full Court of the Family Court should have held that (a) it was not open to the Federal Magistrate to find that it was reasonably practicable, within the meaning of s 65DAA(1)(b) of the Family Law Act 1975 (Cth), for the child to spend equal time or substantial and significant time with each of the child's parents, and that (b), accordingly, it was not open to the Federal Magistrate to consider making an order as described in s 65DAA(1)(c).

Relevant Factors

125 Section 60CC(2) of the Family Law Act 1975 (Cth) provides that the primary considerations in determining what is in the children’s best interests are:-

(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

126 The parties accept that it is of benefit to the children to have a meaningful, meaning significant, relationship with both parents.

(Page 26)
127	As to the meaning of this in the McCall & Clark (2009) FLC 93-405, the Full Court of the Family Court of Australia set out what it considered to be the three possible interpretations of s 60CC(2)(a):-

“118. …

(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.”

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

128 Neither party suggested that this was relevant.
129 As to the additional considerations set out in s 60CC(3) of the Act:

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(a)	any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

130 It is not in dispute that both children have expressed firm views that they wish to
move to live in the USA with their mother and Richard. The applicant’s position is that the children have been given false expectations as to what life in America would be like, and may also have been given false expectations as to the practicality of frequently visiting Perth, having regard to the parties’ respective financial circumstances. He accepts that the children would like to live in a family situation with Richard.
131 I accept that in this regard, they may have somewhat rose-coloured glasses.
132 The expressed views of the children were such that it was accepted that preparation of a formal family report as to their views was not necessary.
133 The parties complied with Kara’s views when she sought to return to Perth in
February 2008. The mother unilaterally complied with Dougall’s views when she retained him in November 2008.
134 Unfortunately, the children have now been expecting to return to live in the USA

for a lengthy period while the visa applications were made, and while these
proceedings are resolved.
135 This is not a case where the children have no familiarity with the area to which
their mother proposes to relocate, as the children did live there in the fairly recent past.
136 I have concerns that if the children’s views are not acceded to, that this will
adversely effect their relationship with their father, particularly Kara who has said she will not then be prepared to see him, although the father may well be right when he says she would “get over it”.

(b) the nature of the relationship of the child with:

(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);

137 The children presently have a good relationship with each of their parents,

although Kara’s relationship with her father, in particular, may have been adversely
effected by the delays in moving to the USA.
138 The children have a very close relationship with their maternal grandmother with
whom they are presently living. Mrs V spent significant periods of time staying with the family prior to separation. Diana has not seen her father since she was four or five years old, the evidence of Mrs V being he was a man of many serious faults.

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139	Although they have seen the father’s parents in the past, the parents live in
Victoria and the children have a relationship with them, but not a close relationship. I believe they have not seen the children since 2008.

(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

140 The father has considerable doubts as to whether the mother is prepared to
facilitate and encourage his relationship with the children, for example, he says she has not always facilitated telephone contact. He is naturally concerned that, if she relocates, and she is not encouraging of the contact, then the closeness of his relationship with the children will be affected. This applies to both direct contact in the form of visits, and indirect contact.
141 The mother has had no relationship with her father and her evidence was she
does not feel she has missed out on anything as a result. This obviously raises concerns about her attitude to her children’s father. I do consider she has a tendency to see too many benefits in the children’s relationship with Richard, as compared to the importance of their relationship with their father. I consider that any emphasis on the benefits of the children’s relationship with Richard’s family is misplaced in the circumstances. I do not accept that this is a factor in any way supporting the wife’s application.
142 The mother states that she will facilitate and encourage the father’s close and

continual relationship with the children, and that she has felt that she has complied
with Court orders in the past.
143 As for the father, he was willing to retain Dougall in Australia in mid 2008, contrary to Court orders at that time, he says with good reason because of the mother’s visa difficulties.
144 The parties communicate with each other usually by SMS. There is evidence their communication at times could have been better.
145 On balance, I accept both parties are likely to facilitate and encourage the
children’s relationship with the other parent, particularly when these proceedings are over. However, both should be vigilant not to give too much weight to the children’s expressed wishes in this regard – it is a parent’s responsibility to ensure the children have a meaningful relationship with both their parents.

(d)

the likely effect of any changes in the child's Circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii)

any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(Page 29)

146 The children are presently used to living with their mother
and maternal grandmother and spending regular time with their father. Both children have spent several months living with their father since separation, when their mother was still in the USA trying to resolve her visa difficulties. This was her decision.

147 While I accept that it is preferable for the children to have frequent contact with
both their parents, having regard to their ages, their ability to have indirect contact, and the history of them being able to cope with separations from the other parent, I accept that they are likely to cope with further separations from either parent, provided proper arrangements are made for regular time to be spent with the other parent.
148 However, I think they will miss their father and maternal grandmother very much if they return to the United States.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

149 This is a matter of considerable significance. The evidence is that it will cost
approximately AUD$3,000 in return airfares per child per visit to Australia, although it could be more, up to $4,000 per child depending on the season and booking arrangements, and possibly slightly less. Neither party is in a good financial position, the mother, partly because of these proceedings and the cost of immigration requirements, and the father also largely because of the legal costs incurred.
150 The trip between here and O state would involve several changes of planes and
is very lengthy – about 36 hours. Although Kara can apparently travel unaccompanied at 16, Dougall is quite young for this although I understand he travelled unaccompanied in 2008! Apparently, an extra $300 charge is made for unaccompanied children, although the father has said it is $100. At the moment, I believe the mother expects to sometimes accompany the children, and advantage can be taken, one way, of her mother travelling to, or from, the USA.

(f) the capacity of:

(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and
intellectual needs;

151 It was not disputed that both parties have the capacity to care for the children’s
day to day needs, and have done so in the past. Both parties are probably capable of caring for the children’s emotional and intellectual needs, but as a result of the parties decision to move to the USA in the first place, and its aftermath, the children have
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been placed under enormous emotional pressure, and the meeting of their intellectual needs have been prejudiced, as they have had to change schools and education systems, because of their parents decisions and problems.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

152 Kara is a girl now aged nearly 16 years, and Dougall is boy now aged 12 years.
Kara has had some disciplinary problems, but is said to be now progressing satisfactorily and she has a part-time job.
153 As to Dougall, his school progress is average and he has had some problems
with reading, writing and language. His behaviour at school has deteriorated during this year. I would be surprised if his several changes of school, and change of country, has not affected his educational progress.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

154 Both parties are caring parents who are trying to do their best for the children.
However, the upheaval of the last three years has not been in the children’s interests, or the parties’ interests for that matter.
155 I have no doubt that both parties are genuine in their present positions.
156 Both parties have criticised the other in relation to some aspects of their
behaviour. The mother says the father has allowed the children to drink alcohol. The father has criticised the mother’s conduct in relation to other men, and believes she did not really put the children first while she was “dating”. He says Dougall was left unsupervised at times.
157 The father was not putting the children first when he left the USA in August 2007 without even telling the children.
158 The mother should not have turned up in Australia unexpectedly, and retained Dougall without notice.
159 Not surprisingly, the parties have had some problems disciplining Kara. The
mother considers the father has been lax, and inappropriate in the way he disciplines Kara and issues have been raised in relation to possible sexual activity, and use of alcohol and marijuana.
160 The father’s position is that Kara fell into a bad crowd when she first returned
from the USA, but she has got over this. At the moment, the father is in a difficult
position as, if he disciplines Kara she does not visit him.
161 Both parties bear some responsibility for the children having to change schools.

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162 Obviously, the upheaval in the family over the last three years has not been in
the children’s interests. The living conditions with either party have been far from ideal, but the circumstances have been unusual. As it turns out, it would obviously have been better for the mother to obtain some rental accommodation much closer to Dougall’s school.

(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

163 Although the mother obtained a restraining order in the USA at the outset, I
understand this was more about preventing the husband leaving the USA There is no suggestion that there was any family violence which was relevant to my determination. The mother did attend Joondalup Court on one occasion with the intention of commencing proceedings, but did not pursue them.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

164 I do not accept that whatever order I make is more or less likely to lead to further
proceedings.

(m) Any other fact or circumstance

165 Any other relevant consideration will be referred to in my conclusion.
166 Section 60CC(4) of the Family Law Act 1975 (Cth) provides:

(4)

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity:

(i)

to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
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(i) participating in making decisions about major long-term issues in relation to the child; and

(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

167 Both parties have taken the opportunity to participate in making decisions about major long-term issues in relation to the children – but they cannot agree.
168 Both parties have reasonably pursued spending time with and communicating
with the children.
169 Not surprisingly in the circumstances, the child support situation has been
difficult. The father left $3,000 in an account for the mother when he left the USA in August 2007, but did not otherwise contribute to their support, other than sending presents. For a few months the parents supported one child each. When both children were with the father, the mother did not pay any child support. The father is presently paying modest child support. He says that no child support should be paid if the mother relocates, and it may be that this is appropriate.

Conclusion

170 The principal issue to be decided is whether having regard to the relevant
factors, including the best interests of the children as the paramount, but not the only consideration, the mother should be permitted to relocate with the children to live in the USA.
171 While the parties agree, in principle, that equal shared parental responsibility is
appropriate, in the present case, neither party is proposing that the children spending equal time with each of them is appropriate or reasonably practicable, even if the children were living in Perth. However, the father seeks substantial and significant time with the children, and this would really only occur if the children were living in Perth, rather than relocating to the USA.
172 It is not in dispute if both parties were living in the same city, it would be in the

best interests of the children, and reasonably practicable for them to spend substantial
and significant time with each of their parents.
173 However, this would entail the mother continuing to reside here with the
children, apart from her present husband, for several months, but possibly joined by him at some time in the future, or the children living with their father, and the mother moving to the USA without them. She is firm she is not proposing to do this.
174 It is agreed that the children want to primarily live with their mother, and I

accept, since they have had experience of living with both parents separately, that this
view should bear significant weight.

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175 As to para 65DAA(5) of the Act, if the mother relocates with the children:-

• they will be living on the other side of the world.
• the parties do have the capacity to implement an arrangement for the children to spend extensive periods with each parent in those circumstancces.
• with the assistance of specific orders, communication between the parties will be facilitated.
• the impact on the children will be intrusive but acceptable in the Circumstances.
176 It is not in dispute that the children have strongly expressed views that they
presently wish to return to live in the USA. To a limited extent, they have had an opportunity to get to know Richard, and the area to which they would be returning, and have some connections there.
177 I accept that Richard is a suitable person to spend time with the children and that
the mother’s desire to return to live with him is genuine. At this stage, I have no reason to doubt that the relationship is sound, although it has been placed under enormous pressure by the events of the last two years.

178 I am satisfied that the mother and Richard will be able to properly accommodate

and care for the children in the United States, as would also be the case if they lived in
Australia.
179 The father’s position is that there is no reason that Richard, who lives some
distance from his extended family, and has no children himself, could not relocate to Perth. I accept that Richard would probably be able to obtain suitable employment here, perhaps with some retraining and it is likely, although it could take some time and money, that he would be able to satisfy Australia’s immigration requirements and at least obtain a visa. Should I not permit the mother to remove the children from Australia, since she has said that she would not then leave Australia herself, there is a possibility that Richard could decide to attempt to move to Western Australia.
180 However, I accept that it is reasonable for him not to do so, in a situation where
he is progressing satisfactorily in his employment, his mother is very unwell with a poor prognosis, although he does not see her very frequently, and all his connections are in O state. The couple met after the parties separated, at a time when the wife was living in America by agreement. It was then not unreasonable for the mother to continue to stay in America and seek to get on with her life. The children were then also both living in the USA, at least with the acquiescence of the parties at that early stage of the separation, and the children were certainly then habitually resident in the USA.
181 As to whether the children will be able to maintain their meaningful relationship
with their father if living in the United States, although this would be at some expense to each party, I accept that the children will be able to maintain a meaningful, meaning significant, relationship with both parents, having regard to their earning capacity and history of travel and the extent of the ongoing contact which can practically occur and is proposed. The father has travelled to O state even since the wife and children have returned to Perth. The children are used to international air travel.

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182

In the event that I do not permit the mother to relocate with the children, I am

satisfied that it would have an adverse impact on, certainly, Kara’s relationship with her father, and probably Dougall’s as well. The stress on the mother would be enormous, and her relationship with Richard may not be able to be maintained. I am not satisfied, in the circumstances, it would be reasonably practicable for her and the children to remain here. The mother accepts that her marriage may not work out, but while she has not had an opportunity to try, this would be a running sore in the parties’ relationship over the children, and the children’s relationship with their father.

183

I also accept that, if the mother is to continue to live in the USA, that the

children have a better chance of being permitted to do so if they go while they are
under 18.

184

Obviously the stress on the father has also been enormous as he does not want to

be separated from his children, and genuinely believes that they would be better off staying here. However, it was he who decided to return to Perth at separation, he says at a time when he was understandably in a poor emotional state. He then expected to be separated from the children for some time. By not formally opposing the children’s relocation until very recently, he has contributed to the children’s (and the mother’s) expectations that they will be able to relocate to the USA, albeit who has now proposed strict conditions.

185

I have therefore determined that the mother should be permitted to leave Australia with the children, to return to live in O state with her present husband.

186

As to the details of the proposed orders, I spent a considerable time at judgment

going through the orders with the parties, and explaining my reasons. To give the parties an opportunity to seek some legal advice about the detail of the orders, I adjourned the proceedings for a week to enable this to occur.

187

I have proposed that the mother have sole parental responsibility for the

children. As I explained to the parties, as it turns out, the reason that proceedings were initially listed for trial was because the mother was advised that if the father had any parental responsibility for the children that her application for visas for the children could not be processed without the father’s written consent.

188

An order of this Court permitting the move to the USA would not meet the USA

requirements, nor would a signature of an officer of this Court on the consent form. In this circumstance, one option would have been to require the father to sign the form, and if he refused to do so, consider contempt or contravention proceedings. The father said he had not decided whether or not he would sign the form if required to do so, as he has wanted to consider his position once my decision about relocation was made.

189

Apart from this problem, both parties have proposed that they have equal shared

parental responsibility, and there was no evidence to suggest that the husband was not
a suitable person to share parental responsibility.

190

In those circumstances, it seems likely that the only certain way to overcome the impasse was to provide for the mother to have sole parental responsibility for the

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children. At judgment, I requested the husband consider his position over the next
week, before the making of final orders.

191

I did indicate that I would be prepared, as proposed at para 15 of my orders, to

consider varying the orders in relation to parental responsibility at a later time once the
immigration difficulties are overcome.

192

The father has sought that the mother provide, in effect a surety, or security, of

$30,000 in the event that she was permitted to relocate to the USA, to provide for the children’s airfares, or the father’s airfare, to travel to the USA, and to provide a fighting fund, in the event that it was necessary for him to take legal action, which may well require him to travel to the USA. It is not clear to what extent the authorities in O state would enforce the orders of this Court, should the mother fail to comply with them. The USA is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, and I understand that orders made in O state are registrable here, so the reverse probably applies. The parties did not address this issue in their material.

193

However, I accept that the mother’s position is that she would facilitate and

encourage the children to return to Australia regularly, and this is indeed her wish, in which I believe she would be supported by Richard. However, I am concerned that should the children express the wish not to return to Australia on a visit, or should her circumstances significantly change, for example, if she is not in a position to contribute towards the cost of airfares, that the children would not return to Australia unless the father was willing and able to fund the visit. While both parties have a reasonable earning capacity and some financial resources, these have been decimated by legal fees and, on the wife’s side, costs related to the immigration application.

194

I have therefore determined that the mother’s removal of the children from

Australia will be conditional upon the mother providing security in the form of the sum of $6,000 into an interest bearing trust account. The parties may be the joint trustees of the account, but it may be more appropriate for the father and perhaps Diana’s mother or brother, who live in Perth, to be the joint signatories on the account. The intention is that, if absolutely necessary, subject to agreement, or Court order, the funds could be used to enable the father to facilitate the return of the children to Western Australia. The funds may be returned to the mother upon Dougall attaining the age of 18 years.

195

I fully appreciate this places an additional financial burden on the mother, who says she now has only $3,000 in savings, and have taken this into account.

196

There was no dispute as to the present arrangements for the children, and for the

father to spend time with the children prior to any relocation. It was agreed that the children should continue to spend from Thursday, from the conclusion of school, until the commencement of school the following Monday, or Tuesday in the event of a long weekend, with the father each alternate weekend. The children spend half of the school holidays with the father.

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197

The father occasionally travels to the Eastern States, for his [business], and seeks

make-up time in the event he is away over his weekend. I accept that this is
appropriate as long as it does not occur too frequently.

198

There were significant differences in the orders sought by the parties in the event that the mother was permitted to relocate to USA with the children.

•	The mother proposed that Kara’s visits to Australia be in accordance with her wishes. The father did not accept they should be subject to her wishes.

199

I accept that Kara should have some flexibility in the amount of time she spends

in Australia, and with her father, but there should be a minimum limit placed on this – I have proposed six weeks per year – mainly to emphasis to her that my decision is that it is very important for her welfare both presently and in the future, to spend a significant period each year with her father, and also in Perth.

•	The mother had proposed that Dougall’s visits to Australia be subject to his wishes from 1 January 2013, when he would be 14 years of age. I am not prepared to accede to the mother’s request in this regard as, although I have taken the children’s views into account, even at 14 years of age, they should not be definitive. The position can be considered further at that time, if necessary.
•	The father had proposed that the children have four visits with him each year, and did say that he would be prepared to contribute to the costs of visiting America each year provided the airfares were met from the funds provided by the mother.

The mother proposes one summer holiday visit each year, alternate Christmases, and the father visit the USA.

200 I have concluded it is not reasonably practicable for the children to visit
Australia more than twice each year, having regard to the short school holidays during the USA school year, the very lengthy summer school holidays and the length, complexity and cost of the travel involved. The father himself said that, while he wanted to spend time with the children for four visits each year, he did not expect the children to travel to Perth four times each year.
201 I would expect the children to have frequent indirect electronic contact with their
father. The mother was concerned about SMSs because of its greater costs, but the cost is not very high and SMS is apparently a favourite contact method of Kara. The children should have telephone contact with their father twice a week, with each party to be responsible for initiating one call.
202 However, I have concluded that visits twice per year are essential in the
children’s interests. There should be a lengthy visit over the northern hemisphere summer holidays, and a two week visit over Christmas which should include Christmas in alternative years. I appreciate that this will involve the children missing some school around Christmas, but it is important for the father, and his family if he and they wish, to have an opportunity to spend Christmas with the children. Another positive is that the children may get to spend some summer time in Perth (if not the Eastern States) while the weather is good and their young friends are on summer holidays.

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203	The father should also have the opportunity of visiting the children each year for
substantial periods on appropriate notice. He has lived in the USA for a short period and visited there twice in 2009, in the apparently over optimistic hope, that he could obtain income through his [business].
204	As to the cost of the travel, the father proposed he should pay 25% and the
mother 75%, and he should also pay the costs for accommodating himself and the children when he visits America. I have concluded that in the event that the father does not visit America in any 12 month period, the parties should bear the full airfares for alternate holidays, which would entail an expense to them probably in the vicinity of $6,000 per annum each. However, if the father does visit the children in the USA, that he should meet all the costs, but then only pay half of the cost of the next visit of the children to Australia that he would have otherwise had to pay. I accept that it is in the children’s interest for the father to spend some time with them in the USA and have some opportunity to become involved in their school and extra-curricular activities.
205	The mother had sought that the children spend time with their grandmother, Mrs
V, during any visits to Perth. The children are very close to their grandmother and I have decided they should spend one day per week with her. At judgment the father suggested this be only from 9:00 am to 6:00 pm as he did not want his time with the children limited when he will spend so little time with them each year. I accept that this is probably appropriate since generally children should not be staying overnight at the retirement village in any event.
206	Obviously the parents should ensure that each is fully informed of the other’s
contact numbers and provide full information to each other about the children’s educational and medical issues.
207	I do not believe it was really in dispute between the parties that any future
proceedings regarding the children, if necessary, should be in Western Australia to avoid any problems about service, my proposals for the mother to maintain a notice of address for service in Western Australia, which I have suggested should be at her mother’s home.

208 Diana did not seem to be adverse to this proposed order.

Proposed orders

1. The mother have sole parental responsibility for the children of the marriage, [Kara C] born [in] August 1994, and [Dougall C], born [in] July 1998.
2. The children live with the mother.
3. Each parent have sole responsibility for the day to day care, welfare and development of the children while they are in their care pursuant to these orders.

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4.

On the children being permitted to enter and live in the United States of America (“the USA”) by the relevant USA immigration authority or authorities, the mother and the children be permitted to leave the Commonwealth of Australia, travel to, and commence to reside with the children in the USA.

5.

On condition that the mother has complied with paras 9(2) and (3) of this order, the injunctions dated 24 November 2008 and 8 October 2009 restraining her from removing the children from the Commonwealth of Australia are hereby discharged.

6.

Pending the relocation of the children to the USA the children spend time with and have contact with the father (in the case of Kara subject to her wishes) as follows:-

(a)

Each alternate weekend from the conclusion of school on Thursday until the commencement of school the following Monday (or Tuesday in the event of a long weekend) but in the event the father is not available on any weekend because of work commitments, he give the mother no less than three days notice of this, and have makeup time as soon as reasonably practicable and preferably on the next weekend;

(b)

For half of all school term holiday periods as agreed, and failing agreement, for the first half of each such period;

(c)

For half of each summer school holiday period, on a week about basis, commencing after school on the last day of the fourth school term with the father to have the first week;

(d)

On special occasions, including but not limited to Father’s Day, the children’s birthdays, the father's birthday, Easter Sunday, and Christmas Day, as agreed between the parties;

(e)

At all reasonable times by telephone, SMS, letter, email, webcam and Skype;

(f)

At such other, or alternative, times as agreed between the parties.
7.(1) Pending any relocation, the mother is permitted to uplift the children’s passports being held by the Principal Registrar of the Family Court of Western Australia, for the purpose of the mother taking the passports to Sydney to enable the children to attend medical examinations or interviews with the USA authorities.
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(2) The mother is to return the passports to the Principal Registrar of this Court as soon as the passports are returned to her by the US authorities following such medical examinations or interviews.
(3) Upon compliance by the mother with paras 9(2) and (3) hereof, the children’s passports be released to the mother by the Principal Registrar of the Family Court of Western Australia.
8. Following relocation of the mother and the children to the USA, the father spend time with and have contact with the children as follows:-

(a) With Kara in accordance with her wishes but so that she spends no less than six weeks per year with her father, with the year calculated from the date of the children’s departure from Australia;
(b) With Dougall :-
(i) In Australia, or such other place as proposed by the father, during each northern hemisphere summer school vacation, for a period of up to 6 weeks, at the father’s nomination, to commence within 7 days following the start of each such vacation period, or such alternative time as is agreed between the parties;
(ii) (a) In Australia, or such other place as proposed by the father, for two weeks over the Christmas period commencing in the 2010/2011 Christmas period, if the children leave Australia before 1 November 2010, and otherwise in the 2011/2012 Christmas period;

(b) The contact commence before Christmas in the first year, and each alternate year, and in the intervening years, the travel not commence until Boxing Day;
(iii) In the USA, provided:-

(a) Such periods are outside school hours;

(b)

The father give the mother not less than 7 days notice in writing of his intention to spend such time with the children where the proposed time is during school semesters, and not less than two calendar months, notice in writing, of such intention when the proposed time is during school holidays;
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(c)

The father be permitted to have the children stay with him during any visit, and be permitted to visit their school and attend any extracurricular activities;

(d)

The father meet all the costs of any visit to the USA.
(iv) At all reasonable times by telephone, SMS, letter, email, webcam and Skype, with the mother to ensure the children telephone the father no less than once per week, and the father to ensure he telephones the children no less than once per week;
(v) At such other, or alternative, times as agreed between the parties.

9.(1)(i) For the purpose of any travel by the children between the USA and Australia, the mother make arrangements for, and pay the cost of each child's return airfares for the first period during which each child spends time with the father, and each alternate period for each child thereafter, and the father make arrangements for, and pay, the cost of each child's return airfares for each intervening trip.

(ii) In the event the father has visited the children for at least seven days since the children last visited Australia, the mother pay one half of each child’s airfare for the following trip to Australia.
(2)(i) The mother ensure, prior to the departure of her and the children for the USA, the air tickets for the return of the children to Australia at Christmas 2010, if applicable, and, if not, for June 2011, have been purchased and the father provided with evidence of this.
(ii) These flight details may be varied by agreement between
the parties.

(iii) The mother is restrained by injunction from cancelling or refunding the tickets, or otherwise varying the booking, save for by agreement between the parties.
(3)(i) Prior to the departure of the mother and the children for the USA, the parties establish an interest bearing joint bank trust account, with each party to nominate a trustee, which may be either of them, with both trustees being required to sign for withdrawals.
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(ii)(a)The mother is to deposit the sum of $6,000 into the account which is to be held subject to further order, or written consent of the trustees, as security for the children’s return to Western Australia, or to contribute towards the cost of airfares in the event that either party fails to comply with these orders.
(b) Any balance of the account is to be paid to the mother upon Dougall attaining the age of 18 years.
10. Following relocation of the children to the USA, during any period in which the children spend time with the father in Western Australia the father permit the children to spend not less than one day for each week they are in Western Australia with their maternal grandmother and/or other members of the mother's family in Western Australia, which may be in block periods.
11 The parties each keep the other informed of their current residential address, mobile and landline (if applicable) numbers and email address, and advise the other party immediately of any changes thereto.
12. The mother keep the father informed of the educational progress of the children and, within 14 days of receipt, promptly forward to him copies of their school reports, school photos and any other written information significant to their educational progress.
13. The parties each immediately inform the other of any medical emergency concerning the children which occurs while the children are in their care and any issues in relation to their health which requires specialist or ongoing medical or dental treatment.
14. At all times, the mother maintain a Notice of Address for Service in the Perth metropolitan area.
15. In the event that any difficulty arises in relation to the implementation of these orders, the parties have liberty to relist these proceedings, and in any event to seek variation of the orders in relation to parental responsibilities or distribution of the trust fund.
16. Subject to further order:-

(a)

The mother is restrained be injunction from conducting any proceedings in relation to the children in the USA.

(b)

Any further proceedings be conducted in the Family Court of Western Australia.
(c) The children are to maintain their Australian Citizenship.
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17. The applications otherwise be dismissed.

I certify that the preceding [208] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate

•	Kara C born [in] August 1994
•	Dougall C, born [in] July 1998

•	By telephone, letter, email, webcam and Skype.
•	By “face to face” time in Australia for any or all of the United States school vacation periods (save for Christmas) as nominated by the father.
•	During the Christmas period in the year 2008 and each alternate year thereafter at times as nominated by the father.
•	At other times as agreed between the parties.

•	As soon as practicable, the mother cause Dougall to be re-enrolled at [a suburban primary school], pending completion of the 2008 school year.
•	Until further order, notwithstanding the provisions of the April 2008 consent orders, the father spend reasonable time with Dougall, and the respondent spend reasonable time with Kara with the intent that the children spend time together.
•	By consent, until further order, without admission, each of the parties be restrained by injunction from removing or attempting to remove Dougall from the Commonwealth of Australia.

•	The children have consistently expressed the desire to return to live in the USA.
•	She and Richard can provide the children with a stable, happy, carefree and loving family environment.
•	The children have previously lived in the USA so they know to what they would be returning.
•	She and Richard would be far more secure financially living in the USA. I have already referred to her evidence in this regard in more detail.
•	Permitting the children to relocate would improve the children’s relationship with their father, which has been strained because of his opposition to their departure.
•	The children have had little involvement with the father’s family, who live in [the eastern states].
•	It is practicable for the children to maintain regular contact with their father by phone, Skype or returning to Australia to visit. The mother has always abided by Court orders and will continue to do so from the USA. The children have always said they want to return to Australia regularly to visit their father, family members and their friends.
•	The children’s, with the mother’s, visas have already been approved, in principle and they could realistically return to the USA within a couple of months, allowing their lives to finally be settled. If the children were made to wait until they are 18 years of age to come to the USA, they would have to apply, and gain, visas individually, as they would no longer be included under their mother’s acceptance.
•	Although it could be possible for Richard to relocate to Western Australia and obtain employment here, there would be no guarantee that his visa application would be accepted. In the event that he did apply for a visa, the mother has been informed that it would take a minimum of four to five months to assess the application. A visa application fee of $1,705 be required, a police clearance, a medical, and immigration attorney fees.
•	The prospect of Richard relocating to Australia would place his career in jeopardy and uncertainty and there is no certainty that his qualifications would be acknowledged in Australia.
•	The children would be included in Richard’s full health insurance in the USA. This is subsidised by his employer.
•	Richard’s first trip outside the USA was to visit the family in Perth in February 2009 so he has no experience of living or travelling overseas away from his home. He has said he would have difficulty emotionally in coping with this – I accept this is the case, if only at the moment, because of his mother’s health.

•	All matters relating to the children be governed by Australian law.
•	The children remain Australian citizens until the age of 18 years.

•	The father spend time with the children on four occasions during any given calendar year with a minimum stay in Australia to be two weeks and a minimum of four weeks in the long school vacation, unless agreed between both parties.
•	The time in Australia should include every second Christmas at a minimum, or every Christmas if travel is difficult for other times during the year for the children.
•	The father sought the mother provide AUS$30,000 “assurity” to be held by the Family Court of Western Australia or a trust fund held by an independent party or lawyers.
•	The mother’s proportion of the airfares be deducted from the assurity fund upon quotation/receipt of flights and monies released to the father by the Family Court of Western Australia. This would reduce the amount of funds on a sliding scale until the children reach the age of 21 years.
•	In the event that the children, because of the USA school holidays, or any other reasons, be unable to travel to Australia, the father would be prepared to travel to the United States covering his own accommodation, car hire, loss of income and incidentals, as long as the mother covers the Qantas (and airline partners) airfare cost and taxis. These funds are to come out of the assurity fund upon receipt/quotation by the father of the relevant costs to the Courts.
•	The children’s visitations with the father continue until they have reached the age of 21 years unless otherwise agreed between both parties.
•	The father cover 25% of air travel taken by the children, to be deducted from the airfares payable by the mother and redeemed from the Family Court of Western Australia or the trust fund. This assurity should not fall below AUD$15,000 and the mother be required to deposit additional funds to ensure the balance is maintained.
•	The children contact and speak to the father at least once per week by telephone and other contact be made by SMS text, Skype, email, webcam, etc. The father be permitted to contact the children on at least one other occasion each week in the same manner.
•	Full medical and dental cover for the children must be in place at all times.
•	The father should not pay maintenance for the children for the duration they are residing in the United States as this would be covered by the 25% paid for the children’s airfares.
•	The father is to book all flights for him and the children.
•	The father book the children’s flights as unaccompanied minors and ensure they have supervision at all times during and between flights, until it is agreed between both parties that the children are of an age to travel by themselves, and can do so legally.
•	Should the mother disregard or breach any of the conditions or Court orders, the residual “assurity” be immediately released to the father to enable Court action, and the ability to cover flights to maintain the relationship with the children.

•	The children stay with the father for the duration of his stay in the United States (up to 14 days maximum), unless otherwise agreed by both parties. The father will ensure the children attend school during these times.
•	Should either child request relocation back to Australia to live with the father, the mother should not obstruct this occurring. The cost of the one way airfare would be split 25% to the father and 75% to the mother as per normal flight cost sharing.
•	Should only one child return to Australia, the agreement/Court orders be renegotiated and sanctioned and/or ordered by the Family Court of Western Australia.
•	The maternal grandmother and any other family members from the mother’s side be entitled to spend time with the children for one day per visit. The grandmother is to collect the children at 9:00 am and return them at 8:00 pm on the same day.
•	After Dougall has turned 21 the remaining funds be released to the mother.
•	The mother give no less than six weeks notice of leaving Western Australia to relocate to the United States, if or once the visa is granted, so the father’s family can travel to see the children prior to leaving Australia, or the children be able to travel to the East coast to visit the father’s family members.

•	All of the children’s extended family members on both sides live in Australia. He has an uncle in Perth whom he and the children see regularly. Only the children’s step-father’s family members live in the USA.
•	Although he had previously been trying to negotiate conditions for maintaining his relationship with the children if they were living in the USA, after gaining more knowledge of the financial and emotional state of “all parties involved”, he has decided it is not in the best interests of the children to live there.
•	Ronald says that his position is that Diana has made basic communication regarding the children’s visitation extremely difficult. He also now has a difficult relationship with Diana’s mother, Mrs V.
•	The mother has always made contacting the children difficult and discouraged his relationship with them. He finds it difficult to maintain a relationship with them when they are only 20 minutes away, let alone if they relocated.
•	Richard has no children, or experience of being a role model to young children. Ronald expressed concern that Richard said in his evidence “there will be a roof over their heads and food on the table” as indicating Richard has very low expectations of what it takes to be a father/provider in the children’s lives.
•	The father has expressed concern about whether the financial circumstances of the mother would really be any better in the USA than here. He points out the fact that Diana currently earns approximately $58,000 in Perth, but has uncertain job prospects in the USA. There she would not have the government assistance currently available to her and the children. Richard and Diana have major commitments and they are proposing to purchase a new house, new vehicle and also start a family. “I cannot see how they could contribute to maintaining a relationship with the father and the extended family members back here in Australia, let alone, manage day to day living.” Ronald well summed up his concerns in his affidavit dated 4 March 2010 as follows:-

(a)	a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)	the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

(c)	consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
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(d)	consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(a)	one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)	a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)	the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

•	they will be living on the other side of the world.
•	the parties do have the capacity to implement an arrangement for the children to spend extensive periods with each parent in those circumstancces.
•	with the assistance of specific orders, communication between the parties will be facilitated.
•	the impact on the children will be intrusive but acceptable in the Circumstances.

(2)	The mother is to return the passports to the Principal Registrar of this Court as soon as the passports are returned to her by the US authorities following such medical examinations or interviews.
(3)	Upon compliance by the mother with paras 9(2) and (3) hereof, the children’s passports be released to the mother by the Principal Registrar of the Family Court of Western Australia.

(a)	Such periods are outside school hours;
(b)	The father give the mother not less than 7 days notice in writing of his intention to spend such time with the children where the proposed time is during school semesters, and not less than two calendar months, notice in writing, of such intention when the proposed time is during school holidays;
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(c)	The father be permitted to have the children stay with him during any visit, and be permitted to visit their school and attend any extracurricular activities;
(d)	The father meet all the costs of any visit to the USA.

[2010] FCWA 78

22 JULY 2010