CURZON & CURZON

[2017] FamCA 575

FAMILY COURT OF AUSTRALIA

CURZON & CURZON [2017] FamCA 575

FAMILY LAW – CHILDREN – Relocation – Where the mother seeks to relocate to the USA with the children – Where the father opposed it but did not offer himself as an alternative residential carer for the children – Where the children’s relocation with the mother to the USA would probably not destroy or impair their relationships with the father – Concluded the Family Law Act 1975 (Cth) aspires to the children’s derivation of benefit from meaningful filial relationships; not the contrivance of optimum filial relationships – Where the mother deposed she would not relocate the children’s residence until the end of the current academic term – Restraint on the mother relocating the residence of the children before a specified date

FAMILY LAW – CHILDREN – Views – Where the eldest child’s view against relocation was consistently and strongly held – Where the eldest child can decide with whom she lives and spends time and no order regulating those arrangements is needed – Where the views of the two youngest children changed over time and little weight is reposed in their views

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65Y, 70M, 111CA

Uniform Child-Custody Jurisdiction and Enforcement Act 2001, PA 195, MCL 722.1101 to 722.1406,  ss 105, 303, 305

Family Law (Child Protection Convention) Regulations 2003 (Cth), Reg 3
Family Law Regulations 1984 (Cth), Regs 14, 24

Cape & Cape (2013) FLC 93-549
Hepburn & Noble (2010) FLC 93-438
Malcolm v Monroe [2011] FLC 93-460
McCall v Clark (2009) FLC 93-405
U v U (2002) 211 CLR 238

APPLICANT: Mr Curzon

RESPONDENT: Ms Curzon

INDEPENDENT CHILDREN’S LAWYER: Mr Haricharan, Hunter Family Law Centre Pty Ltd

FILE NUMBER: NCC 881 of 2015

DATE DELIVERED: 9 August 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 10, 11, 12, 13, 17 & 21 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Mullane & Lindsay

COUNSEL FOR THE RESPONDENT: Mr Rugendyke

SOLICITOR FOR THE RESPONDENT: Georgia Seaton Family Law & Mediation

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hunter Family Law Centre Pty Ltd

Orders

1. All former orders in respect of the following children are discharged:

   (a)B, born … 2001;

   (b)C, born …; and

   (c)D, born … 2006.

Orders in respect of B

1. Whilst ever the mother resides within Australia, she shall have sole parental responsibility for all “major long-term issues” in relation to B.

2. Whilst ever the mother resides outside Australia and:

   (a)B lives within Australia, the father shall have sole parental responsibility for all “major long-term issues” in relation to her; and

   (b)B lives outside Australia, the mother shall have sole parental responsibility for all “major long-term issues” in relation to her.

3. The mother is restrained from causing or permitting B to be removed from Australia before 28 December 2017.

Orders in respect of C and D

1. The mother shall have sole parental responsibility for all “major long-term issues” in relation to C and D.

2. C and D shall live with the mother.

3. The mother is restrained from causing or permitting C or D to be removed from Australia before 28 December 2017.

4. As and from 28 December 2017, the mother is restrained from causing or permitting the residence of C or D to be established in any place other than within Australia or State E, USA.

5. Pursuant to s 65Y(2) of the Family Law Act, the mother is permitted to take C and D to a place outside Australia as and from 28 December 2017.

6. Whilst ever C and D live with the mother in Australia, the parties shall take all reasonable steps to ensure they spend time with the father as follows:

   (a)During school terms:

   (i)Each alternate week from 7.45 am Thursday until 8.15 pm Friday, commencing on the first Thursday of each term; and

   (ii)Each alternate week from 7.45 am Thursday until 5.00 pm Sunday, commencing on the second Thursday of each term.

   (b)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year.

   (c)From 7.45 am on Thursday 21 December 2017 until 5.00 pm on Wednesday 27 December 2017.

   (d)During all Summer school holidays from 2018 onwards, from 3.00 pm on Christmas Day until 5.00 pm on 1 January.

7. For the purpose of implementation of Order 10(b) hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which C and D are due to return to school, and the mid-point is noon on the day halfway between those first and last days.

8. For the purpose of implementation of Order 10 hereof, the mother shall deliver C and D to the father at the commencement of their time with the father and the father shall return them to the mother at the conclusion of their time with him.

9. Whilst ever C and D live with the mother in State E, USA, the parties shall take all reasonable steps to ensure that they spend time with the father as follows:

   (a)Whilst ever the father lives within 50 kilometres of the mother:

   (i)During school terms:

   (A)Each alternate week from 6.00 pm Thursday until the commencement of school on the following Monday, commencing on the first Thursday of each term; and

   (B)Each alternate week from 6.00 pm until 8.30 pm on Thursday, commencing on the second Thursday of each term.

   (ii)For the second week of all school holidays.

   (b)Whilst ever the father lives more than 50 kilometres from, but within 250 kilometres of, the mother:

   (i)During school terms, each alternate week from 6.00 pm Friday until 6.00 pm on the following Sunday, commencing on the first Friday of each school term.

   (ii)For the second week of all school holidays.

   (c)Whilst ever the father lives more than 250 kilometres from the mother, but still within the USA (not including the States of Hawaii and Alaska) or Country L:

   (i)During school terms, for one weekend falling closest to the middle of each term, from 6.00 pm on Friday until 6.00 pm on the following Sunday.

   (ii)For the second week of all school holidays.

   (d)Whilst ever the father lives outside the USA (not including the States of Hawaii and Alaska) or Country L:

   (i)During the northern hemisphere Summer school holidays, for not less than 21 consecutive days in Australia, such dates to be at the mother’s election; and

   (ii)In or about the northern hemisphere Winter school holidays, for not less than 10 consecutive days in the USA, commencing either no later than 14 December or not before 26 December, such dates to be at the father’s election.

10. For the purpose of implementing Orders 13(a), 13(b), and 13(c) hereof:

    (a)The second week of the school holidays commences at 5.00 pm on the seventh day after the last day of school term and concludes at 5.00 pm seven days thereafter; and

    (b)The mother shall deliver C and D to the father at the commencement of their time with the father and the father shall return them to the mother at the conclusion of their time with him.

11. For the purpose of implementing Order 13(d)(i) hereof, the mother (at her expense) shall cause C and D to be delivered to the father at the arrivals hall of the international airport at Sydney, NSW, Australia and the father shall return them to the same place.

12. For the purpose of implementing Order 13(d)(ii) hereof, the mother (at her expense) shall cause C and D to be delivered to the father at the arrivals hall of the international airport at Los Angeles, California, USA and the father shall return them to the same place.

13. Whilst ever the father lives within 250 kilometres of the mother, the parties shall take all reasonable steps to ensure that C and D communicate privately by telephone with:

    (a)The father each Tuesday at 20.00 pm, when they are living with the mother, and for that purpose the father shall telephone them on the telephone number provided to him by the mother and the mother shall ensure they are able to receive the father’s calls on that number at that time.

    (b)The mother each Wednesday at 20.00 pm, when they are spending time with the father, and for that purpose the mother shall telephone them on the telephone number provided to her by the father and the father shall ensure they are able to receive the mother’s calls on that number at that time.

    (c)The parent with whom they are not then staying, at 20.00 pm on their birthdays, and for that purpose the parent with whom they are not staying shall telephone them on the telephone number provided by the other parent for that purpose and the parent with whom they are staying shall ensure they are able to receive the other parent’s calls on that number at that time.

14. Whilst ever the father lives more than 250 kilometres from the mother, unless otherwise agreed, the parties shall take all reasonable steps to ensure that C and D communicate privately by audio-visual internet communication program (or telephone at the caller’s election) with:

    (a)The father each Tuesday, when they are living with the mother:

    (i)at 20.00 pm Sydney time when they are in Australia; or

    (ii)at 08.00 am City F, State E time when they are in the USA;

    and for that purpose the father shall contact them on the internet connection provided to him by the mother and the mother shall ensure they are able to receive the father’s calls on that connection at that time;

    (b)The mother each Wednesday, when they are spending time with the father:

    (i)at 20.00 pm Sydney time when they are in Australia; or

    (ii)at 20.00 pm City F, State E time when they are in the USA;

    and for that purpose the mother shall contact them on the internet connection provided to her by the father and the father shall ensure they are able to receive the mother’s calls on that connection at that time.

    (c)The parent with whom they are not then staying, on their birthdays:

    (i)at 20.00 pm Sydney time when they are in Australia; or

    (ii)at 20.00 pm City F, State E time when they are in the USA;

    and for that purpose the parent with whom they are not staying shall contact them on the internet connection provided by the other parent for that purpose and the parent with whom they are staying shall ensure they are able to receive the other parent’s calls on that connection at that time.

Other orders in respect of all children

1. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

2. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

3. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

4. The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

5. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

6. Within seven days hereof the parties shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

7. The parties are at liberty to provide a sealed copy of these orders to:

   (a)Any authority entitled to issue Australian or USA passports;

   (b)Any authority with control over international arrival and departure points in Australia and the USA; and

   (c)The principals of any schools attended by the children.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

9. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

10. Costs are reserved for 28 days.

11. Any and all outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Curzon & Curzon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 881 of 2015

Mr Curzon

Applicant

And

Ms Curzon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for three children, now aged 16, 12, and 11 years respectively, under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The respondent mother is American and wants to return to live in the USA, taking the children with her. The children are all now resistant to the idea but, at least until recently, the two youngest children were ambivalent. The applicant father positively opposes their relocation, but does not want the children to live with him, thereby letting the mother make her own choice about where she lives. Rather, he proposes that the children remain living with her, sufficiently close to him so they may continue to visit him frequently.

3. The decision therefore distilled to whether or not orders should be made which have the effect of restraining the mother, either permanently or temporarily, from relocating the children’s residence to the USA. The three issues which principally influence that decision are: the children’s views; the ability of the children to retain meaningful relationships with the father if they live with the mother in the USA; and any diminution in the quality of the mother’s parenting capacity if she is effectively compelled to remain with the children in Australia.

4. Ultimately, the evidence dictated the eldest child can decide with whom she lives and spends time, the mother should not be restrained from relocating the residence of the two youngest children to the USA, and their future interaction with the father must depend upon how close he chooses to live to them.

Brief history

1. The parties met in the USA in 1993 while the father was working there. They began to live together in 1995 and married in 1997. The parties and the eldest child, who was born in 2001, moved from the USA to live in Australia in February 2003.

2. The two youngest children were born in 2005 and 2006.

3. The parties separated in December 2013 and the father vacated the former matrimonial home. The children have continued to live with the mother ever since. She has wanted to relocate back to State E, USA with the children since around the time of the parties’ separation, though she sought no orders to that effect until this litigation started.

4. The father commenced the proceedings in April 2015 and, in October 2015, interim orders were made, with the parties’ consent, providing for the children to live with the mother and to spend substantial time with the father. The application for interim orders was motivated by the father’s dissatisfaction with the amount of time the children had been spending with him. The timing of the children’s visits with the father under those orders was organised by the parties around their work commitments.[1]

   [1] Family Report, para 9

5. Some months later, in June 2016, the existing interim orders were amended to exempt the eldest child from their operation – the effect being that she could decide when and for how long she spends time with the father.

6. Those interim orders operated successfully until trial in July 2017.

Proposals

1. The father pressed for the orders set out in his Amended Initiating Application filed on 18 August 2016, as modified by the fresh evidence in his trial affidavit and his adoption of some of the orders proposed in final submissions by the Independent Children’s Lawyer. Essentially, he proposed the parties have equal shared parental responsibility for the children, the children live with the mother close to him in Australia, the eldest child makes her own decisions about when she spends time with him, and the two youngest children spend substantial amounts of time with him (including four nights per fortnight and a week in each school holiday period). He envisaged the mother could take the children on holidays to the USA from time to time. Alternatively, if the children live with the mother in the USA, he proposed at least two annual visits in school holiday periods.

2. The mother abandoned the orders set out in her Further Amended Response filed on 3 March 2017 and instead sought the orders set out in the minute of orders she tendered during final submissions.[2] Her proposal entailed the children living with her, preferentially in the USA, and her having sole parental responsibility for them. Her proposal for the children’s future interaction with the father depended upon whether or not she was able to relocate the children’s residence to the USA from Australia. If so, she expected the children and father could see one another in school holiday periods in both Australia and the USA. If she was constrained to residence in Australia, she proposed the children spend time with the father for much the same amount of time as he proposed.

   [2] Exhibit M2

3. The Independent Children’s Lawyer began the trial with a preliminary view the mother should be restrained from relocating the children’s residence from Australia to the USA, but had no formative view about the allocation of parental responsibility for the children. Prior to the commencement of final submissions, the Independent Children’s Lawyer tendered a minute of the orders he proposed,[3] providing for all children to live with the mother, she to have sole parental responsibility for them, and for them to regularly spend time with the father, subject to their travel with the mother to the USA for holidays at times elected by her. The Independent Children’s Lawyer proposed an injunction precluding the mother from establishing the children’s residence outside Australia.

   [3] Exhibit ICL8

Evidence

1. The father relied upon:

   (a)His affidavit filed on 2 June 2017; and

   (b)The affidavit of the step paternal grandfather (Mr G) filed on 2 June 2017.

2. The mother relied upon:

   (a)Her affidavit filed on 2 June 2017, subject to amendment of some incorrect text within it;[4]

   (b)The affidavit of her friend (Ms H) filed on 2 June 2017; and

   (c)The affidavit of the maternal aunt (Ms J) filed on 2 June 2017.

   [4] Exhibit M1

1. The parties and Independent Children’s Lawyer relied upon the two documents compiled by the Family Consultant, upon which she was cross-examined, being:

   (a)The Memorandum dated 14 August 2015; and

   (b)The Family Report dated 18 January 2017.

2. With the parties’ consent, the Independent Children’s Lawyer tendered a transcript of an interview he conducted with the children several days prior to commencement of the trial, which revealed update evidence about their views.[5]

   [5] Exhibit ICL2

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests

Primary considerations (s 60CC(2))

1. Despite each party filing Notices of Risk in 2015, the parties’ discussion of their “safety concerns” about the children with the Family Consultant, and the countervailing evidence about the parties’ abusive, aggressive, or disrespectful behaviour, the trial was conducted by both parties and the Independent Children’s Lawyer on the basis that the children were not in need of any protection against any form of harm through subjection or exposure to abuse or family violence. As a consequence, s 60CC(2)(b) of the Act was not engaged as a material consideration.

2. The only primary consideration pertinent to the outcome is that prescribed by s 60CC(2)(a) of the Act, which requires advertence to the benefit the children would derive from having meaningful relationships with both parents. There was no debate about the beneficial quality of the children’s relationships with the mother, which must be preserved. However, the evidence demonstrated the inferior quality of the children’s relationships with the father, though the parties entertained different theories about why that might be so. The Family Consultant thought the explanation lay in the father being historically less involved than the mother in their daily care due to his work commitments, the children feeling the need to choose allegiance with the mother as their primary carer because of the parties’ conflict, their attribution of fault to the father for causing the mother’s unhappiness, and their perception of the need to protect the mother.[6] The Family Consultant was not challenged about the efficacy of those opinions and they are accepted as correct.

   [6] Memorandum, para 19; Family Report, paras 58, 92, 95, 106, 134, 136, 147

3. When the children were observed in the company of the father by the Family Consultant in January 2017, she initially found them distant from him, but their interaction warmed up moderately in a relatively short space of time.[7] Although the Family Consultant observed the father and children together, the lack of uniformity in the current state of their relationships ideally requires that they be discussed individually.

   [7] Family Report, para 114-120

4. The eldest child’s relationship with the father deteriorated – “significantly” according to the father – after he slapped her during an argument in November 2015. She chose to spend much less time with him and so, in June 2016, the parties agreed to remove her from the operation of the October 2015 interim orders, so as to respect her right to make her own decisions. Her relationship with the father began to improve again from late 2016, though the improvement suffered a setback following another argument between them over her boyfriend in December 2016. However, since February 2017, there has been dramatic improvement in the relationship.[8] The eldest child now voluntarily visits the father frequently for short periods; at least fortnightly and sometimes weekly. That evidence was not the subject of any controversy. The father deposed the eldest child asked him if she could live with him if the mother moved to the USA, about which the mother said she was unsurprised when asked about it in cross-examination. The mother said she told the eldest child that is where she must live if she opts not to move to the USA with her and the two youngest children. The eldest child must feel as though her relationship with the father is meaningful and she benefits from it if she contemplates him as her alternate residential carer. Nonetheless, he is still a fall-back option for her.

   [8] Father’s affidavit, paras 90-105

5. The middle child has generally been compliant with the orders made in October 2015, but the father conceded there was “a long transition period” for the middle child to “eventually” accept the parenting regime imposed by those orders. The father admitted the middle child blames him for the parental separation and, for at least the last few months, she has resisted close personal interaction with him despite continuing to visit him in compliance with the existing orders.[9] The middle child has always been more prone to anxiety than the other two children and the parties generally agreed she was the child who suffered most due to the family disintegration.[10] The middle child’s relationship with the father is still important and significant to her, but less so than the relationship she enjoys with the mother, from which she gleans much greater emotional benefit. While the father believes the middle child’s attitude towards him “may simply be a result of her being a teenager”,[11] that is unlikely to be a sufficiently comprehensive explanation, given the Family Consultant’s undisturbed opinions about the reasons for the children’s varying degrees of estrangement from him.

   [9] Father’s affidavit, paras 129-141

   [10] Family Report, para 148; Mother’s affidavit, para 38

   [11] Father’s affidavit, para 141

6. The youngest child appears to have the strongest relationship with the father, which the father seems to attribute to their “male bonding”.[12] Regardless of the reason, he shows much greater inclination to allow the father’s involvement in his life and activities.[13] Despite the youngest child having told the father he feels scared of him,[14] the father regards their relationship as “close”.[15]

   [12] Father’s affidavit, para 189

   [13] Father’s affidavit, paras 195-204

   [14] Father’s affidavit, para 208(b)

   [15] Father’s affidavit, para 209

7. The mother’s isolated comments in evidence about the children’s relationships with the father being “emotionally non-existent”[16] and them only “sometimes” deriving benefit from spending time with him are disregarded as bombast, since her counsel conceded on her behalf in final submissions that the children all do have meaningful relationships with the father.

   [16] Mother’s affidavit, para 91

8. The father’s concern, expressed to the Family Consultant[17] and agitated at trial, was that the chance of the children having enduring meaningful relationships with him would be substantially diminished if they live with the mother in the USA. The father’s contention was founded on his belief that, regardless of the mother’s stated intention to maintain her compliance with orders regulating the children’s future interaction with him, once living in the USA, the children would resist spending time with him and she would conveniently accede to their resistance. He fears that, even if such orders were implemented initially, compliance would quickly peter out.

   [17] Family Report, para 45

9. The validity of the father’s prediction depends upon two considerations, both of which are amenable to consideration under s 60CC(3) of the Act: the mother’s commitment to retention and promotion of the children’s relationships with him and the enforceability of any orders in State E, USA, being the State in which she wishes to live.

Additional considerations (s 60CC(3))

1. The enforceability of parenting orders in an international jurisdiction is an important consideration (see McCall v Clark (2009) FLC 93-405 at [11]), since it is pointless making orders enabling children to be relocated overseas on the conditional basis they will retain contact with their non-residential parent in Australia if that is unlikely to occur.

2. Obtaining advance recognition and a declaration of enforceability of Australian orders in the foreign jurisdiction to which it is proposed children be taken is ordinarily desirable (see Cape & Cape (2013) FLC 93-549 at [68]-[80]), but that course is not open in this case. Although the USA signed the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 on 22 October 2010, it has not yet entered into force in that country. Consequently, the USA is not recognised as a “Convention country” in Australia (s 111CA of the Act; reg 3 and Schedule 1 of the Family Law (Child Protection Convention) Regulations 2003 (Cth)) and so the mother is unable to request a State E court of competent jurisdiction to decide on the recognition (or non-recognition) of the parenting orders made for the children by this Court and to then issue a declaration of registration and enforceability (or non-enforceability) of such orders in State E (Convention Articles 24, 26).

3. However, the unavailability of advance recognition does not mean the Australian orders would not be capable of international enforcement. In the event orders are made enabling the mother to relocate the children’s residence to State E and she then chooses to do so, the father would be able to request the Registry Manager of this Court, in writing, to send a sealed copy of the orders to the designated State E court for registration. For the purposes of s 70M(1) of the Act, State E is a “prescribed overseas jurisdiction” (regs 14 and 24 and Schedule 1A of the Family Law Regulations 1984 (Cth)) and State E has counterpart provisions to Part VII, Division 13, Subdivision C of the Act enabling registration of international parenting orders (ss 105, 303, 305 of the Uniform Child-Custody Jurisdiction and Enforcement Act 2001). Upon registration, the Australian orders would be enforceable by him in State E if breached. Enforcement of the orders in State E might be inconvenient, but probably little more so than the enforcement of any breached parenting orders. Most likely the father could prosecute such enforcement proceedings remotely from Australia, but even if not, he conceded his ability to travel to the USA.

4. It is unlikely the mother would intentionally breach any orders, since she has not previously done so, but that is not a complete answer to the father’s concern. As the Family Consultant said in cross-examination, there is a clear and important distinction between a residential parent’s bare compliance with court orders on the one hand and, on the other, active support and promotion of the children’s relationships with the non-residential parent. If the mother exhibits an indifferent attitude to whether or not the children maintain their relationships with the father, they will realise soon enough she lacks the resolve to force their compliance with the orders requiring them to spend time with him. That might be an inducement for them to resist compliance, particularly if they must inconveniently travel to Australia periodically to visit the father. The mother would be able to simultaneously proclaim her willingness to comply with the orders, but her inability to force the children’s compliance against their wishes, particularly given their ages. It is only if the mother makes plain to the children, through her deeds and words, her genuine belief in the importance of their relationships with the father and her commitment to promotion of them that they would likely satisfactorily survive the children’s international relocation. The father believed the mother lacked that honest commitment and so it became a contentious issue in the litigation.

5. While the father admires the mother and values her parental role in some respects, he believes she undermines his parenting role, which causes the children to be confused and conflicted.[18] The Family Consultant concurred the children have been confused and conflicted, causing their tendency to side with the mother, but she did not attribute that confusion and conflict to any conduct by the mother that either intentionally or inadvertently undermined the father’s role.[19] As earlier outlined, the Family Consultant considered the explanation for the deterioration of the children’s relationships with the father was his reduced involvement in their daily care and them perceiving the need to align with the mother as their primary carer because of the parties’ overt conflict.[20]

   [18] Memorandum, para 42

   [19] Memorandum, para 57

   [20] Family Report, paras 58, 92, 95, 106, 134, 136, 147

6. While that evidence is accepted, as the father correctly contended, the mother’s conduct has still not always been consistently supportive of the children’s relationships with him. Inferentially at least, the mother shared information with the children which adversely influenced their opinions about him, but that was quite some time ago, generally more proximate to the time of the parties’ separation when their emotions were still quite raw.[21] The father also adduced evidence of the mother failing to ensure the children spent time with him soon after separation,[22] but he conceded in cross-examination that was not “entirely” her fault because the situation was “complicated”. At or about that time, the mother made arrangements for the parties and the children to attend family therapy at K Group,[23] which the father admitted in cross-examination she arranged to try and preserve the children’s relationships with him. Surely she would not have done so if she was genuinely intent on destroying or impairing the children’s relationships with him, or alternatively, could not care less.

   [21] Father’s affidavit, paras 43, 211-212

   [22] Father’s affidavit, para 57

   [23] Father’s affidavit, para 45; Mother’s affidavit, para 91

7. On Christmas Day 2015, the two eldest children recited a poem to the father that was critical of him, with which they said the mother helped.[24] The mother vehemently denied her involvement, both to the father directly when he asked her about it shortly afterwards and in evidence,[25] but he simply disbelieved her. The father was generally a more convincing witness than the mother, but her reliability was not so impugned that her denial should be rejected outright as untruthful. Plausibly, the girls conspired to compose the poem, but attributed responsibility to the mother to deflect blame from them.

   [24] Father’s affidavit, paras 230-233

   [25] Mother’s affidavit, para 235

8. The mother asserted her belief the father should be meaningfully involved in the children’s lives,[26] but it is not a belief she has been easily able to impress upon the children. Although she believes she has and does encourage the children to spend time with the father,[27] her belief does not readily correlate with the children’s perceptions. That is probably because she does not regard the father particularly favourably. She described him to the Family Consultant as a “narcissist” who lacked empathy.[28] There was no evidence to objectively vindicate her opinion about his character flaws, but her honest opinions obviously influence her attitude towards him. Most probably, that is why she feels it is such a “battle” to convince the children to spend time with the father in accordance with the existing orders.[29] They pick up on her attitude, so she needs to do better to shield the children from her personal feelings.

   [26] Mother’s affidavit, paras 69, 90

   [27] Mother’s affidavit, para 92

   [28] Family Report, paras 61, 149

   [29] Mother’s affidavit, paras 19, 113

9. Two recent examples of the mother’s conduct illustrate the problem. In January 2017, at the Family Consultant interviews, the mother objected to the presence of Mr G. Her behaviour, in the presence of the children, was obviously embarrassing to both them and Mr G and would have left the children aware of her dissatisfaction about their pleasant interchange with him.[30] The incident would certainly have caused the children to be cautious about their interaction with the father or any other member of the paternal family. Even if, as the mother asserted in cross-examination, that was not the motive for her objection to Mr G’s presence, it is the message the children would most probably have imputed. Then, sometime in or after January 2017, the mother deposed she told the two youngest children they “have to” spend a “whole week” in the holidays and a “whole weekend” in school term with the father if the “judge makes that decision”.[31] The only message the children could reasonably have implied from that conversation was the mother considered such visits undesirable, but they would be forced – by a judge, not by her – to endure them. Self-evidently, the children are unlikely to happily embrace visits with the father if they know the mother expects them not to enjoy the experience.

   [30] Family Report, paras 50-51

   [31] Mother’s affidavit, para 216

10. The eldest child told the Family Consultant she regarded the mother’s proposed relocation as an attempt by her to “get the kids away from” the father,[32] but even if she genuinely held that view it is not necessarily correct. It might well be informed by her knowledge the parties can “barely tolerate” each other and the mother is very unhappy in her current situation.[33] Not even the father believes the mother’s primary motivation is to separate the children from him. He told the Family Consultant he understood her motivation for wanting to relocate to the USA[34] and, in cross-examination, he agreed her desire to live close to her family and friends in the USA and to rely upon their support was genuine.

    [32] Family Report, para 65

    [33] Family Report, para 92

    [34] Family Report, para 32

1. The Family Consultant reported she considered it would be “impossible” for the children to enjoy meaningful relationships with the father if they relocate with the mother to live in the USA,[35] but her opinion was not so absolute in cross-examination. Rather than being “impossible”, the flavour of her oral evidence was that it would only be more difficult. When asked whether the children would be able to maintain meaningful relationships with the father if they live in the USA and only see him once or twice each year in holidays and otherwise have their interaction restricted to electronic communication, she said “possibly not”. But if it is only possibly insufficient interaction between them then, axiomatically, it must probably be sufficient. The Family Consultant may not have intended such precise dissection of her expressed opinion but, regardless, the prediction of such outcomes is not an exact science.

   [35] Family Report, para 155

2. The children’s relationships with the father are all meaningful, but to varying degrees. It is unlikely they will ever be as strong as their relationships with the mother, at least during the children’s minority. While there is a chance the importance of the children’s relationships with the father would wane if they move to live with the mother in the USA, that eventuality remains conjectural. The wide variation manifest in the Family Consultant’s opinion evidence about what is needed to sustain those relationships attests to that fact. Logic suggests the children’s relationships with the father would be more easily preserved if they continue to live in close proximity to him, so they can see him regularly, but the evidence was insufficiently sound to demonstrate their geographical separation (and hence their less regular interaction) would probably deprive the children’s relationships with him of their long-lasting value. The Act aspires to the children’s derivation of benefit from meaningful filial relationships; not the contrivance of optimum filial relationships.

3. The Family Consultant also opined it was “highly likely” any orders for the children’s international electronic communication with the father would not be the subject of compliance,[36] though such anticipated failure was attributed to several factors: the mother’s disinclination to comply, the abating interest of the children, and the time zone difference between the east coast of Australia and State E. The time zone difference does not preclude communication during convenient hours, though one time zone would be morning and the other evening, so that is not a significant consideration. Continuing adherence to communication orders by the mother and children is a more compelling consideration, but in circumstances where the children would only infrequently spend time with the father they would more likely sustain their interest in maintaining audio-visual contact with him over the internet and by email, with which technology they are probably familiar and find convenient to use. The evidence does not support the conclusion it is “highly likely” the communication between them would fail altogether, though of course it is possible. As the children age, they might choose to communicate with the father less frequently than he would like, but that could occur wherever the children live.

   [36] Family Report, para 156

4. The eldest child has consistently expressed the desire to remain living in Australia and not move to live in the USA. She said so to the Family Consultant in August 2015[37] and January 2017,[38] to the father over a long period of time,[39] and to the Independent Children’s Lawyer in July 2017.[40] The Family Consultant regarded her views to be developmentally appropriate and concluded considerable weight should be reposed in them because of her age and maturity.[41] In cross-examination, both parties accepted she could and should make her own decisions about with whom and where she lives and with whom she spends time and communicates. To that end, they agreed the orders should differentiate between the eldest child and the youngest two children. The mother is now prepared to move to the USA without the eldest child, taking only the two youngest children with her.[42]

   [37] Memorandum, para 20

   [38] Family Report, paras 31, 64, 65, 72, 73

   [39] Father’s affidavit, paras 120-123

   [40] Exhibit ICL2

   [41] Family Report, paras 73, 165

   [42] Mother’s affidavit, para 214

5. The middle child’s views have been more malleable. She told the Family Consultant in August 2015 she did not mind where she lived,[43] she told the Family Consultant in January 2017 she did not really want to live in the USA permanently,[44] and she told the Independent Children’s Lawyer in July 2017 she did not now want to move to the USA.[45] She has not told the mother anything different.[46] The Family Consultant considered the middle child’s earlier ambivalence about relocation was due to her not wanting to disappoint the mother.[47] That could be so, but it remains unclear whether the reason she advanced to explain the middle child’s earlier ambivalence represented her firm opinion or merely a plausible theory. In any event, the middle child’s view now seems to have hardened against her relocation to the USA.

   [43] Memorandum, paras 21, 53

   [44] Family Report, paras 80, 81, 84

   [45] Exhibit ICL2

   [46] Mother’s affidavit, para 215

   [47] Family Report, para 90

6. Only six months ago, in the context of her comment upon the middle child’s views, the Family Consultant did not consider she had the maturity to fully comprehend the consequences of relocation to the USA and so her views should not be given any weight.[48] It was not suggested by either party or the Independent Children’s Lawyer that her opinion about the lack of weight attributable to her views was misconceived. Analogously, if she did not have the maturity to understand the consequences of her residence in the USA, she did not have the maturity to understand the consequences of the mother being forced to remain her residential carer in Australia. Although the middle child is articulate and thoughtful,[49] it is inherently improbable she has acquired sufficient maturity over the last six months to now enable much more weight to be reposed in her hardened view against the proposed relocation.

   [48] Memorandum, para 34; Family Report, paras 162, 165

   [49] Family Report, para 75

7. The youngest child told the Family Consultant in August 2015 he would like to relocate to the USA, though his reason was glib and immature: he liked the idea of being able to ride a quad bike through cornfields.[50] In January 2017, when he spoke again with the Family Consultant, he said he would be disappointed if he could not live in the USA, though he seemed to contemplate it would be an experience limited to a period of about 12 to 24 months.[51] More recently, in July 2017, he told the Independent Children’s Lawyer he did not want to move to the USA.[52] He has not told the mother anything different.[53]

   [50] Memorandum, paras 22, 53

   [51] Family Report, para 104

   [52] Exhibit ICL2

   [53] Mother’s affidavit, para 215

8. As with the middle child, only six months ago, the Family Consultant considered he lacked the maturity to fully comprehend the consequences of the proposed relocation and so she concluded his view should not be given any weight.[54] The youngest child certainly has no greater insight or maturity than the middle child. No aspect of the evidence suggested his views should be accorded any greater weight than her views.

   [54] Memorandum, para 34; Family Report, paras 108, 163, 166

9. The Family Consultant was impelled to concede in cross-examination that, because the Independent Children’s Lawyer interviewed all children together just before the trial, the views now expressed by the two youngest children against their relocation with the mother to the USA were plausibly influenced by their desire to be consistent. Although the Family Consultant limited her concession in that regard to only a possibility, it is both logical and feasible. The two youngest children were aware of the eldest child’s strong and consistent view against relocation, as she first confirmed it in their presence, and they then immediately agreed when asked.[55] They would likely have felt some pressure to concur with their older sibling and with one another, even if the eldest child did not intend to exert such pressure upon them. The eldest child was not interviewed separately from them until afterwards.[56]

   [55] Exhibit ICL2, page 2

   [56] Exhibit ICL2, page 6

10. Ultimately, there is no evidence to gauge how strongly the two youngest children hold their current views or the reasons for why they have hardened their attitude against relocation to the USA. In the absence of that important contextual evidence, given their past vacillation or uncertainty, not much weight should be reposed in the two youngest children’s views. It may be assumed they would probably prefer to remain living in Australia, as that would avoid any disruption, but it is doubtful they strongly object to living in the USA. Their views should certainly not be dispositive of the result.

11. Other aspects of the evidence did not favour one party’s case or the other. Both parties have equivalent parenting capacity, the children’s relationships with members of the maternal and paternal families are comparably strong so neither family should be prioritised over the other,[57] and the quality and availability of academic and extra-curricular opportunities for the children in Australia and State E are indistinguishable.[58]

    [57] Family Report, paras 14, 15, 62, 66, 67, 82, 85, 96, 158; Father’s aff, para 119; Mother’s aff, para 66

    [58] Family Report, para 164; Mother’s affidavit, para 50

Other considerations

1. The children’s interests are the paramount, but not the exclusively determinant, consideration. The parties’ interests need also be considered, so long as they remain subjugated to the children’s interests.

2. The mother’s fervent desire to move back to the USA with the children was not suggested to be anything other than genuine and reasonable. She feels isolated and lonely living in Australia. Although her Australian friends help her carry the parenting load, she craves the physical help, emotional succour, and financial support which will be available to her from her family in the USA.[59] Those are very important considerations (see McCall v Clark at [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).

   [59] Mother’s affidavit, paras 46-50, 68

3. The mother’s desire for such support is compounded by her past psychological fragility, which extends back to when she first moved to Australia in 2003. Most recently, she sought out professional support in 2014. She is medicated with anti-depressants and receives counselling regularly,[60] in relation to which the Family Consultant believes she has been proactive.[61] The mother believes her psychological condition would be vastly improved if she is free to choose to live with the children close to her family in the USA.[62] The eldest child told the father the mother cries herself to sleep at night,[63] which the mother confirmed in cross-examination occurred occasionally. More recently, the eldest child told the Independent Children’s Lawyer she thought the “whole thing is affecting [the mother’s] ability to be a mum” and she is “not coping with it”.[64] The father conceded in cross-examination she has been exhausted and overwhelmed since their separation well over three years ago and she has taken anti-depressant medication for a large proportion of that time. Such evidence confirmed his earlier comments to the Family Consultant.[65]

   [60] Mother’s affidavit, paras 28, 89; Exhibits ICL3, ICL4, ICL5, ICL6, ICL7

   [61] Family Report, para 54

   [62] Mother’s affidavit, para 74

   [63] Father’s affidavit, para 82

   [64] Exhibit ICL2, pages 4, 6

   [65] Memorandum, para 40

4. The mother presented at trial as relatively stoic and resilient. She did not give the impression she would collapse emotionally and lose her parenting capacity, to the detriment of the children, if she was restrained from relocating to the USA. Nevertheless, it would be a heavy blow and her melancholy would be palpable. She would undoubtedly be resentful of the father and it would only serve to increase the antipathy between them, to which the children would be inevitably exposed. The father already believes the mother undermines the children’s relationships with him so, somewhat paradoxically, their future relationships with him could be worse if the mother is forced to remain in Australia with them and she is inclined to be vindictive, but may be improved if she feels emotionally fulfilled in the USA and more willing to be facilitative.

5. The mother’s difficulty in being confined to Australia is not limited to her deep unhappiness. She also faces financial constraints. If she stays in Australia she needs to sell the house in which she and the children live because she cannot afford the mortgage repayments.[66] She worked more shifts to increase her income and she supplemented her capital reserves by selling personal assets at pawn shops,[67] but that was not enough to allay the problem. Although the father pays child support in accordance with prevailing assessments, the parties have regularly been in conflict over the quantum of the assessments. Their current dispute over child support assessment is pending before the AAT.[68]

   [66] Mother’s affidavit, para 75

   [67] Mother’s affidavit, para 157

   [68] Father’s affidavit, paras 300-303; Mother’s affidavit, paras 31, 157, 158, 167, 168, 171

6. The mother and the children have dual citizenship,[69] so there is no doubt about their entitlement to live in the USA. The ease with which the father could live in or visit the USA was therefore a salient issue, since it should not be assumed he cannot or should not contemplate moving so as to be nearer to the mother if she relocates with the children. The reasons for the maintenance of his current residence should be explored, just as the reasons for the mother’s proposed relocation are explored. Unless the children’s interests demand it, the mother need not subordinate her desire to relocate to the father’s wish to remain and pursue his life in Australia (see U v U (2002) 211 CLR 238 at 285-286).

   [69] Mother’s affidavit, paras 2, 6, 44; Father’s affidavit, para 324

7. The father told the Family Consultant he was “unable to reside” in the USA[70] and he deposed he would “not be able to follow [the mother and children] to the USA”,[71] but the situation is not so absolute. He is not an American citizen and would therefore require a visa to stay in the USA for periods of any real length,[72] but in cross-examination he conceded he foresaw no impediment to him staying indefinitely in the USA, provided he could arrange employment to sustain himself. He expected he could stay in the USA for months at a time if he desired, even if his permanent residence there was impractical. The father has lived and worked in the USA in the past so, although it is not his preference and might entail some inconvenience, he is capable of arranging it again now.[73] His complaint about having no family support in the USA is hollow,[74] since the absence of family support for the mother in Australia is the principal reason she wants to return to the USA, and it is a stronger argument for her because she is and will remain the children’s primary carer. If he advances that complaint, he must accept it is also a valid complaint for the mother to advance.

   [70] Family Report, para 39

   [71] Father’s affidavit, para 323

   [72] Father’s affidavit, paras 325-326

   [73] Father’s affidavit, paras 327-330

   [74] Father’s affidavit, para 331

8. If the mother and children relocate to the USA and the father chooses to remain in Australia, both parties would likely have the financial capacity to ensure the children spend time with the father on at least two occasions each year. The father deposed he would “find a way” to ensure he visits the children in the USA at least once a year, even under his tight financial circumstances,[75] but his financial circumstances are better than he portrayed. He owns his own business and a negatively-geared investment property. When confronted with those facts in cross-examination he conceded he could “possibly…probably” afford to travel to the USA twice each year. Mr G confirmed his willingness to provide the father with financial support if needed. For the mother’s part, she proposed (aside from visits between the children and father in the USA) that the children should visit the father in Australia once each year for several weeks and she would bear the cost of the children’s airfares.[76] She anticipated receiving financial assistance from her family if needed, the probable availability of which was confirmed in cross-examination by Ms J.

   [75] Father’s affidavit, paras 334-336

   [76] Mother’s affidavit, paras 71-73

Conclusions and orders

1. It was not contended the presumption of equal shared parental responsibility does not apply pursuant to operation of s 61DA(2) of the Act. Rather, the mother’s proposal for the exclusive allocation of parental responsibility for the children to her was premised entirely upon application of s 61DA(4) of the Act, since she contended the evidence demonstrated it would not be in the children’s best interests for the parties to have equal shared parental responsibility for them. She was right, but that does not mean parental responsibility for the children should be allocated exactly in the manner she proposed, since the conferral of parental responsibility should be linked to the orders designating with whom each child should live.

2. The Family Consultant opined the children have been subjected to “a life time of parental disharmony” and there was “no communication and no real possibility of there being a productive co-parenting relationship” between the parties, so parental responsibility should not be shared.[77] Her opinion was correct. It would not be in the children’s best interests for the parties to have equal shared parental responsibility for them. The parties do not talk to one another at all and only communicate in writing,[78] but despite some capacity for written communication they have often failed to confer over decisions of importance to the children and they are each critical of decisions made individually by the other.[79] Even allowing for any recent modicum of improvement, the father’s “hope” they could communicate better over issues of importance to the children is unduly optimistic.[80]

   [77] Family Report, paras 16, 21, 167

   [78] Father’s affidavit, para 217; Mother’s affidavit, paras 32, 93

   [79] Family Report, paras 40, 42, 56, 60; Father’s affidavit, paras 62-63, 234-236; Mother’s affidavit, para 79

   [80] Family Report, para 46; Father’s affidavit, paras 240-244; Mother’s affidavit, para 183

3. Since there will be no order for equal shared parental responsibility in respect of any of the children, the provisions of s 65DAA of the Act do not fetter the discretionary decision about with whom the children should live. Turning then to the question of the children’s residence, the father conceded in cross-examination their best interests were served by them living primarily with the mother. His concession confirmed the absence of any application by him for any order that any of the children live with him. In fact, he did not even make an application for the children to spend block periods of time with him in school holidays until the mother proposed it, in response to which he deposed to his willingness to submit to a regime of school holiday visits.[81]

   [81] Father’s affidavit, paras 263-268

4. It is a significant consideration that the father wants the mother confined to residence in Australia with the children, against her wishes, so they can spend regular but relatively brief periods of time with him, rather than have the children live with him so the mother is free to choose where she lives. The only available inference is that he does not wish to shoulder the responsibility of primary care for the children and would rather force the mother to endure that burden on his terms. The complexion of the case would be quite different if the father was willing to offer himself as an alternate residential carer of the children.

1. On balance, although the children’s relationships with the father might be stronger if they remain living with the mother in Australia, their relocation with the mother to the USA would not likely destroy or impair their relationships with him, nor preclude them from deriving benefit from those relationships. Consequently, the children’s interests are not appreciably impinged by their relocation with the mother to the USA. Their physical, intellectual, and emotional interests would be equivalently served by them living with the mother in either the USA or Australia, in which case the parties’ individual interests emerge as influential. The mother’s relocation to the USA with the two youngest children would be contrary to their most recently expressed views but, while they assert they do not want to live in the USA, nor have they expressed any desire to live with the father in Australia instead or to see much more of him while living here with the mother. Their views do not carry persuasive weight for the reasons already explained.

2. Neither party is obliged to advance compelling reasons for their proposals (see U v U at 261, 285-286; Malcolm v Monroe [2011] FLC 93-460 at [81]-[83]), but the mother’s motivation for the relocation is more persuasive than the father’s motivation for her restraint. The mother’s psychological and financial situation will likely be materially improved in the USA and the father will be able to travel and stay there, at least periodically, without too much difficulty. The children should therefore live with the mother and she should have sole parental responsibility for them. Although that outcome is best in a general sense, it is subject to some caveats. First, the eldest child should be exempt and separate orders made for her, second, the mother’s relocation with the two youngest children should be designed to minimise disruption to them, and third, the mother should be required to bear some of the financial burden of ensuring the children maintain regular contact with the father.

3. As earlier noted, both parties accepted the eldest child could and should make her own decisions about with whom and where she lives and with whom she spends time and communicates. The orders therefore allocate parental responsibility for her to the mother, whilst ever the mother chooses to remain living in Australia. That reflects current circumstances. If and when the mother moves to live in the USA, then parental responsibility for the eldest child will instead be conferred on the father, at least whilst ever she chooses to remain living in Australia. If she chooses to follow the mother and her siblings to the USA, or moves to some other country, then parental responsibility for her will revert to the mother. No orders are made regulating with whom the eldest child lives or how and when she spends time with the parties. To the extent the eldest child does not decide for herself, those decisions are left to the party who holds parental responsibility for her.

4. In all probability, the eldest child will choose to remain in Australia and complete her secondary education by late 2018, as she has consistently said she would. That will necessarily mean she would be separated from her younger siblings and, while that is not ideal, she attains her majority in January 2019 and will be free to make her own decisions then anyway. The orders therefore bring forward that eventuality by about 12 months. In cross-examination, the Family Consultant said the separation of the eldest child from the two youngest children was not a particularly significant issue because they were at much different developmental stages. They will still be able to maintain frequent contact via social media, just as they already do with their American relatives.

5. The mother deposed she would not relocate to the USA with the children until the end of the current academic year,[82] so the transition to new schools in the USA would be smoother. Significantly, the father is not unconditionally opposed to the children moving to live in the USA. He told the Family Consultant the decision should wait until they have attained their majority,[83] but in cross-examination he conceded the decision could be re-visited two years hence. He gave no explanation for why the decision would be best delayed, for two years or for any other length of time, other than that the move would be disruptive for them. But the move would be disruptive at any time. The father’s comments to the Family Consultant and his oral evidence evinced some equivocation about the children’s relocation. His position is not really as resolute as was contended.

   [82] Mother’s affidavit, para 51

   [83] Family Report, para 39

6. There is no warrant to delay the decision about relocation for any arbitrary period of time, but there is good reason to delay the actual move until the end of this year. By December 2017, the children will have finished the Australian academic year. Then, in January 2018, they can begin a new school term in the USA at the conclusion of the northern hemisphere winter school holidays. The orders therefore restrain the mother from removing the two youngest children from Australia before 28 December 2017. After that time, she can decide if and when she relocates to the USA, though she almost certainly will as soon as she can. For avoidance of doubt about her entitlement to do so, an order made under s 65Y(2) of the Act will facilitate that choice.

7. The orders restrain the mother from relocating to any place outside Australia other than State E, USA, because the principal reason for the planned relocation is so she can garner the support of her immediate family and friends, all of whom live in and around the same community in State E. If the mother simply planned to move to some other distant place in the USA, where such support would not be so readily accessible, she could just as easily remain in Australia. She acceded to an injunction in that form during final submissions.

8. Once the mother moves to the USA with at least the two youngest children then, if the father chooses to remain living in Australia, they should spend time with him not less than twice each year – once in Australia and once in the USA.

9. The children’s northern hemisphere summer school holiday break will be their longest holiday of the year. They should visit the father in Australia during that break for not less than 21 consecutive days. The father contemplated the duration of the children’s visit might be 42 days[84] and the mother contemplated visits of between 14 and 35 days duration,[85] but three weeks is sufficient given they have never stayed with him for anywhere near that long before and he proposed holiday visits of only one week’s duration if they remained living in Australia. There is little evidence of his interest in long visits with the children and they might resist taking the trip from the USA if they perceive the holiday to be too long. The parties can agree otherwise if they wish.

   [84] Father’s affidavit, paras 344(a), 345

   [85] Exhibit M2, Order 10.1

10. The mother should bear the cost of the children’s return flights to Sydney, Australia, as she said she would, and as the father expected.[86] The two youngest children will then also be able to see the eldest child if she chooses to remain in Australia. The father said in cross-examination he would take annual leave, or at least modify his work hours, while the children visited him.

    [86] Father’s affidavit, para 348

11. The children’s northern hemisphere winter school holiday break will occur for several weeks over the Christmas/New Year period. The father can travel to the USA to allow the children to spend not less than 10 consecutive days with him during that holiday. He should bear the cost of his own return flights to the USA, as he said he would, but the mother can bear the cost of the children’s USA domestic flights to ensure they meet the father in Los Angeles. There is no need to force the father to visit the children in or around State E in deep winter, where cold weather, snow and ice might curtail their activity. The Californian climate will give them a wider range of outdoor activities and a holiday atmosphere to make the visit more pleasant. It will also be easier and cheaper for the father to fly to the USA west coast than into the middle of the continent. Flight connection delays for the father will be avoided and direct flights for the children between State E and California should neither be too difficult nor too expensive.

12. The father contemplated the children should instead travel to see him for 12 days in Australia over the Christmas/New Year period during the northern winter school break,[87] but 12 days (plus travel) would use up nearly the entirety of that shorter school holiday. They should be able to spend at least part of that time of the year with the mother and maternal family members, so the father’s visits with the children at that time should either start by 14 December or not begin before 26 December. That way, both parties can share the children’s company around Christmas Day. Their respective proposals suggested Christmas arrangements were important to both of them.

    [87] Father’s affidavit, paras 344(b), 346

13. If the father continues to live in Australia but wants to visit the children in the USA more than once each year, he will need to negotiate that with the mother. She deposed the father would be “more than welcome” to visit the children in State E “at any other time” when she is not holidaying with them.[88] Inferentially, she might be more amenable to compromise with him once she is happier living back in the USA. The father proposed an order to accommodate the eventuality of more trips,[89] but his cross-examination revealed it was linked to his proposal for an expanded regime of interaction with the children if he also moves to the USA. His evidence suggested his residence in the USA was no more than a possibility and he was unsure whether he could or would visit the USA more than once each year if he remains living in Australia. The mother’s conditional proposal for extra visits in the USA added undesirable complexity and hence room for disagreement about compliance.[90] The parties’ specific proposals in that respect were barely mentioned in evidence and there must be limits to the Court’s ability to fashion orders covering all potentialities, for otherwise the orders become arbitrary, lack sufficient prescription, or become too complicated. No such supplementary order is made, though it should not be assumed the absence of such an order implies there should be no extra visits. It would benefit the children to see the father as often as he can periodically travel to the USA. If the mother is obstructive, contrary to her sworn evidence in these proceedings, the prospect of further corrective litigation in State E is always open.

    [88] Mother’s affidavit, para 73

    [89] Father’s affidavit, para 344(c)

    [90] Exhibit M2, Orders 10.2, 10.3, 11.1, 11.2, 11.3, and 11.4

14. Until the mother moves to the USA, the orders preserve the existing regime under which the two youngest children spend time with the father for four nights each fortnight. The father wanted to terminate the visits in alternate weeks on Friday evening at 6.00 pm instead of 8.15 pm, but the existing regime was designed to accommodate the mother’s work commitments on Friday evenings. The father’s purported concern to avoid disturbing the children by returning them later in the evening was inconsequential given the children’s ages.[91] The orders should stay as they are.

    [91] Father’s affidavit, para 317

15. The orders also provide for the children to spend a week or so with the father over Christmas 2017, immediately before the date upon which the mother is at liberty to move to the USA.

16. If the mother chooses to remain in Australia longer, or if the father follows her and the children overseas to live in the USA or in Country L, the orders make provision for the children to continue spending time with the father regularly. But the regularity depends upon how close to the mother and children he establishes his own residence. Since some parts of Country L are very close to State E, some flexibility is required because, for example, employment may not be readily available to the father in reasonably close proximity to the mother’s residence. The alternative orders are necessarily arbitrary as to distance, but they seek to avoid the need for further litigation merely because of unforeseen circumstances. If the parties continue to live in the same country, or at least sufficiently close together on the same continent, the orders provide for the children to spend one week in each school holiday period with the father.

17. Changeover venues cannot be designated in those circumstances because it is not known precisely where the parties will live. The orders therefore require the parties to share the deliveries and collections of the children, so that neither accrues any advantage nor suffers any disadvantage.

18. If the father lives within 250 kilometres of the mother, the orders provide for the children’s weekly telephone communication with him. Telephone communication would be enough because the orders would enable them to visit one another reasonably regularly. If he lives more than 250 kilometres from the mother, the orders provide for the children’s weekly communication with him by audio-visual means over the internet, such as via Skype or Facetime. That is because their personal visits would not then be so regular and visual connection would be more important, though the telephone will be a fall-back method.

19. The orders require the parties to deliver the children to the Independent Children’s Lawyer to have the orders explained to them, and if considered appropriate, the reasons for the orders. That will avoid the children receiving a sanitised version of the decision from the mother in circumstances where she will almost certainly move overseas with them as soon as she is able.

20. The father agreed to submit to an injunction restraining him from administering physical discipline to the children,[92] as sought by the mother,[93] though the Independent Children’s Lawyer proposed the injunction should bind both parties.[94] The mother is not prejudiced by being bound by the same injunction, since it only requires her adherence to current practice.

    [92] Father’s affidavit, para 297

    [93] Exhibit M2, Order 17.1

    [94] Exhibit ICL8, Order 17

21. There is no need to make orders about who holds the children’s passports, as the parties and Independent Children’s Lawyer all proposed. The parent vested with parental responsibility decides.

22. The remaining orders are self-explanatory and could not be the subject of reasonable objection.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 August 2017.

Associate: 

Date:  9 August 2017