DEACON & DEACON - [2019] FamCA 956

FAMILY COURT OF AUSTRALIA

DEACON & DEACON

[2019] FamCA 956

FAMILY LAW – JURISDICTION – Where the Court has jurisdiction by reason of the interplay between the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children and the provisions of the Family Law Act 1975 (Cth).

FAMILY LAW – CHILDREN – Interim Parenting – Best Interests – Where the mother seeks to live with the children in Australia whilst the father seeks that the children reside with him in the United States of America – Where the children have established relationships with both parents – Where the mother presents as the children’s primary carer both historically and at present – Where issues as to family violence such that the presumption as to equal shared parental responsibility should not apply – Where mother to have sole parental responsibility – Where consideration of applicable principles and the children’s best interests – Orders made for children to live with the mother in Australia – Orders fashioned to ensure the children have a meaningful relationship with the non-resident father – Orders to be registered in a competent court of the overseas jurisdiction to ensure their enforcement.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL, 69E, 70M, 111B, 111CA, 111CC, 111CD

Family Law Regulations 1984, Reg 14

Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Lao & Yeng [2018] FamCA 560
Marvel & Marvel [2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Sigley & Evor (2011) 44 Fam LR 439

APPLICANT:

Ms Deacon

RESPONDENT:

Mr Deacon

INDEPENDENT CHILDREN’S LAWYER:

Ms Hayward

FILE NUMBER:

DUC

303

2019

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

31 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Todd

SOLICITOR FOR THE APPLICANT:

Thompson Madden Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Schroder

SOLICITOR FOR THE RESPONDENT:

Gayle Meredith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders pending further order:

That the mother have sole parental responsibility for the children, X born … 2009 and Y born … 2011 (“the children”).
The mother, in the exercise of sole parental responsibility, consult the father in a timely manner prior to her making decisions in the exercise of parental responsibility including but not limited to issues as to:
(a)      The education of the children;
(b)      The religion of the children;
(c)      Major health decisions for the children;
(d)Any change in the children’s present living arrangements that may make it more significantly more difficult for the children to spend time with father; and in consulting the father have appropriate regard to his wishes provided always that the mother shall make the final determination as to such issues.
That children live with the mother.
That the children shall spend time and have contact with the father as follows:
(a)If the father remains residing in the United State of America (“USA”), then:
(i)commencing in 2020 during school holiday periods for the whole of the July and September New South Wales gazetted school holidays commencing on the second day after the conclusion of school term and concluding with the children returning to the mother no later than two days prior to the children recommencing school term;
(ii)commencing 2019 for the second half of the Christmas school holidays calculated as the period from 26 December until two days before the children resume school term and continuing in odd numbered years;
(iii)commencing 2020 for the first half of the Christmas school holidays calculated as the period commencing on the second day after the conclusion of school term until two days before the children resume school term;
(iv)for the purposes of liberal telephone/FaceTime/skype contact with the children;
(v)at times as agreed between the parties in writing which may include SMS or email communication when the father is, otherwise, in Australia upon giving to the mother not less than 14 days’ notice with such time to be not less than time provided for below in the event that the father returns to reside in Australia; and
(vi)Any other times as agreed between the parties in writing which may include SMS or email communication.
(b)If the father returns to reside in Australia, then:
(i)During the children’s school terms, each alternate weekend from after school Thursday to before school Monday or Tuesday if Monday is a non-school day;
(ii)During the children’s school holiday periods for half of the April, July, September and Christmas (calculated as the period from 26 December until two days before the children resume school term) such halves to be agreed between the parties and in the absence of agreement for the first half in even numbered years and the second half in odd numbered years;
(iii)In odd numbered years from 3.00 pm Christmas Eve to 3.00 pm Christmas Day and in even numbered years from 3.00 pm Christmas Day to 3.00 pm Boxing Day;
(iv)In years when Easter is not part of the term school holidays, then the parties will each spend time with the child for half of the Easter weekend as agreed between the parties in the absence of agreement in odd numbered years from after school on the Thursday immediately prior to Good Friday until 3.00 pm Easter Saturday and in odd numbered years from 3.00 pm Easter Saturday until commencement of school immediately after Easter Monday;
(v)On the Father’s Day weekend from after school Friday to before school Monday provided always that the children’s time with the father shall be suspended on the Mother’s Day weekend;
(vi)For the purposes of liberal telephone/FaceTime/skype contact with the children; and
(vi)Any other times as agreed between the parties in writing which may include SMS or email communication.
For the purpose of any time that the father spends with the children, the father shall use his best endeavours to ensure that he has arranged to take leave from work to spend time with the children.
For the purpose of changeover:
(a)If the father remains residing in the USA, then:
(i)The mother is to arrange for and pay for the flights for the children at the commencement of the time the children spend with the father to the international airport nearest to the father’s residence unless otherwise agreed in writing; and
(ii)The father is to arrange for and pay for the flights for the children at the conclusion of the time the children spend with the father to the international airport nearest to the mother’s residence unless otherwise agreed in writing.
(b)If the father returns to reside in Australia, then changeovers where not at school shall occur at a McDonalds Family Restaurant at the halfway point between the mother’s residence and the father’s residence or otherwise as agreed.
These Orders shall be sufficient authorisation for any medical practitioner, hospital, health service provider or paramedical service to provide to the other parent details of all medical conditions and treatments of the children.
That each parent will inform the other as soon as practically possible of any medical or other emergencies involving the children whilst the children is in the relevant parent’s care.
These Orders shall be sufficient authorisation for any school that the children may attend from time to time to forward to the father copies of all reports, notices and newsletters and other documents usually sent to the parents and the father is permitted to order any photographs depicting the children the parents are invited to order.
That the mother and father are otherwise at liberty to attend on such occasions that are relevant to the schooling, health, sport, religious education or welfare of the children where the attendance of either or both parents is to be expected or to which they are invited.

International Registration

That the mother and father do all things necessary and sign all necessary documents including a request to the Registrar under section 70M of the Family Law Act 1975 (Cth) to procure reciprocal registration of these orders in a court of competent jurisdiction in F State or any other State prescribed by the Family Law Regulations 1984 in the United States of America in which the father shall reside from time to time.
That the children’s time with the father in the United States of America shall not commence until verifiable compliance with the previous order.

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 Deacon & Deacon 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 PARRAMATTA

FILE NUMBER: DUC 303 of 2019

Ms Deacon

Applicant

And

Mr Deacon

Respondent

REASONS FOR JUDGMENT

The present interim application involves the determination of the living circumstances pending final trial of two children, aged 10 and Y aged eight, who were born in and lived in Australia but who more recently have lived in the United States of America before they returned to Australia in circumstances as discussed below.
The applicant mother filed her Initiating Application in the Federal Circuit Court of Australia on 9 August 2019.
In that application, the mother sought final parenting orders in relation to the subject children that, in summary, provided:
a)that the mother have sole parental responsibility for the children;
b)that the children live with the mother (who now lives in B Town, New South Wales); and
c)that the children spend time with the father if he remain residing in the United States of America for certain periods of the New South Wales school holidays and in the alternative that if the father returns to reside in Australia then the children’s time with him substantially comprise of alternate weekends during school terms and defined periods during school holidays together with electronic communication and at other times as agreed between the mother and father.
In her Initiating Application, the mother sought interim orders that, in summary, provided:
a)that the mother be able to facilitate the enrolment of the children into the D School in B Town;
b)that the father be restrained from attempting to or removing the subject children from the Commonwealth of Australia and that the children’s names be placed on the airport Watchlist;
c)that the mother have sole parental responsibility for the children in respect of schooling and medical procedures but otherwise the mother and father have equal shared parental responsibility;
d)that the children live with the mother; and
e)that the children spend time with the father substantially as provided for in the final orders sought by the mother as referred to above.
On 17 September 2019 the father filed a Response to the mother’s application.
In that Response, the father sought final orders as to parenting, in summary, as follows:
a)that the father have sole parental responsibility for the children in relation to issues relating to residence, education and healthcare;
b)that the mother and father have equal shared parental responsibility in relation to issues relating to the children’s names and religion;
c)that the children live with the father in F State in the United States of America or such other location in which the father may live from time to time;
d)that the children spend time with the mother as agreed between the parties and failing agreement in accordance with orders of this Court;
e)that the children have liberal telephone and/or Skype or such other electronic means communication with the mother while they are in the father’s care; and
f)that the mother and the father each be restrained from discussing these proceedings with the children or in the presence or in the hearing.
In his Response, the father sought interim orders that the mother’s application be dismissed.
On 18 September 2019 the father filed an Application in a Case in the Federal Circuit Court of Australia seeking orders, in summary:
a)that the application be heard urgently;
b)that the proceedings be transferred to the Parramatta Registry of the Federal Circuit Court of Australia for hearing of the Application in a Case;
c)that the mother deliver the children to the father at 10.00 am on the Saturday after orders are made;
d)that pending further order the children live with the father;
e)that the father be at liberty to return with the children to F State in the United States of America or such other location in which the father may reside from time to time;
f)that the children’s names be removed from the airport Watchlist;
g)that the mother thereafter be restrained from causing or requesting the Australian Federal police to place the children’s names on the airport Watchlist;
h)that pending further order, the father have sole parental responsibility for the children in relation to major long-term decisions concerning the children’s health and education such that the father may cause the children to resume their attendance at G School in F State and to arrange medical and dental treatment for the children as and when required;
i)that the father be at liberty to do all acts and things to obtain the necessary visa or visas for the children to live with him in the United States of America and the mother is directed to sign and return any documents required to be signed by her in relation to same within 48 hours of those documents being provided to her;
j)that the children have liberal telephone and/or Skype communication or other such means of electronic communication with the mother while they are in the father’s care; and
k)that the mother and father each be restrained from discussing these proceedings with the children or in the presence or in the hearing of the children.
Proceedings were first listed before the Federal Circuit Court of Australia in chambers on 27 September 2019 and the parties were granted leave to inspect and copy certain documents produced on subpoena.
On 30 September 2019 the mother filed a Response to the father’s Application in a Case seeking orders, in summary, as follows:
a)that the Application in a Case filed 18 September 2019 be dismissed;
b)that pending further order the mother have sole parental responsibility for the children in respect to schooling and medical procedures but in all other respects the parties have equal shared parental responsibility for the children;
c)that pending further order the children’s names remain on the airport Watchlist;
d)that the children live with the mother; and
e)that the children spend time with the father if the father remains in the United States of America during prescribed school holiday periods or if the father returns to Australia alternate weekends during school terms and during school holiday periods and other special periods and days.
On 1 October 2019, proceedings were before Judge Myers in the Federal Circuit Court of Australia and on that day were transferred to this Court.
On 4 October 2019, the father filed an Amended Application in a Case that now included a recovery order seeking the return of the children to his care.
Subsequent to transfer to this Court in circumstances where both parties were seeking urgent determination of interim orders sought, an Independent Children’s Lawyer was appointed to represent the interests of the children.
On 10 October 2019, the mother filed an Amended Response to the father’s Application in a Case substantially seeking the same orders as in her initial Response to that application save for the inclusion of contact between the children and the father for the purposes of liberal telephone, FaceTime or Skype contact and any other times as agreed between the parties
On 21 October 2019, proceedings were before the Court and on that date orders were made for the parties and the subject children to attend for the purposes of a Children and Parents Intake Assessment report (CAPIA), with urgent arrangements for those interviews to take place on 24 October 2019. Further, by way of interim order, the father was to spend time with the children from 25 October 2019 to 27 October 2019 inclusive.
The interim issues for determination were listed for hearing before this Court on 31 October 2019.
The mother relied on:
a)her Amended Response to the father’s Application in a Case; and
b)her affidavit filed 29 October 2019.
The father relied on:
a)his Amended Application in a Case; and
b)his affidavit filed 29 October 2019.
At interim hearing, the mother relevantly sought orders as set out in her Case Outline (Exh “B”) as follows:
(3)That, pending further order, the mother to have sole parental responsibility for the children, X born … 2009 and Y born … 2011 (“the children”), in respect of schooling and medical procedures but in all other respects the parties have equal shared parental responsibility of the children.
(4)That, pending further order, the children’s names remain on the Airport Watchlist maintained by the Australia Federal Police at all points or arrival and departure in the Commonwealth of Australia.
(5)The children live with the mother.
(6)The children are to spend time with the father as follows:
(a)If the father remains residing in the United States of America (“USA”), then:
(i)Commencing 2020 during school holiday periods for the whole of July and September New South Wales gazetted school holidays with the children returning to the mother no later than three days prior to the children returning to school for the new term;
(ii)Commencing 2019 for the half of the Christmas school holidays being the first half in even numbered years and the second half in odd numbered years.
(iii)Liberal telephone/FaceTime/skype contact.
(iv)Any other times as agreed between the parties.
(b)If the father returns to reside in Australia, then:
(i)During school terms, each alternate weekend from 7.00 pm on Friday until 4.00 pm Sunday.
(ii)During school holiday periods for half of the April, July, September and Christmas New South Wales gazetted school holidays, such halves to be agreed between the parties and in the absence of agreement for the first half in even numbered years and the second half in odd numbered years.
(iii)In even numbered years from 3.00 pm Christmas Eve to 3.00 pm Christmas Day and in odd numbered years from 3.00 pm Christmas Day to 3.00 pm Boxing Day.
(iv)In years when Easter is not part of the term school holidays, then the parties will each spend time with the child for half of the Easter weekend as agreed between the parties and in the absence of agreement in odd numbered years from after school on the Thursday immediately prior to Good Friday until 3.00 pm Easter Saturday and in odd numbered years from 3.00 pm Easter Saturday until commencement of school immediately after Easter Monday.
(v)Liberal telephone/facetime/skype contact.
(vi)Any other times as agreed between the parties.
(7)For the purpose of any time that the father spends with the children, the father will ensure that he has arranged to take leave from work to spend time with the children. The father is restrained from engaging the services of a carer for the children whilst the children are spending time with the father.
(8)For the purpose of changeover:
(a)If the father remains residing in the USA, then:
(i)The mother is to arrange for and pay for the flights for the children at the commencement of the time the children spend with the father to the international airport nearest to the father’s residence unless, otherwise, agreed in writing;
(ii)The father is to arrange for and pay for the flights for the children at the conclusion of the time the children spend with the father to the international airport nearest to the mother’s residence unless, otherwise, agreed in writing.
(b)If the father returns to reside in Australia, then:
(i)Changeover shall occur at a McDonalds Family Restaurant at the halfway point between the mother’s residence and the father’s residence. In the event that such halfway point does not have a McDonald’s Family Restaurant, then it will be at an agreed location.
(9)The father shall not have the children on the weekend which includes Mother’s Day but, if the father is residing in Australia, in substitution, the father shall have time with the children on the following weekend at the same time as set out in order 6.b.i.
(10)If the father is residing in Australia, then the mother shall not have the children on the weekend which includes Father’s Day but, in substitution, the mother shall have time with the children on the following weekend.
(11)These Orders shall be sufficient authorisation for any medical practitioner or paramedical service to provide to the other parent details of all medical conditions and treatments of the children.
(12)That each parent will inform the other as soon as practically possible of any medical or other emergencies involving the children whilst the children are in the relevant parent’s care.
(13)These Orders shall be sufficient authorisation for any school that the children may from time to time be attending to forward to the father copies of all reports, notices and newsletters and other documents usually sent to the parents and the father is permitted to attend any school function involving the children or order any photographs depicting the children the parents are invited to order.
(14)That each party will refrain from making critical or derogatory remarks about the other parent or members of their family in the presence of or within hearing of any of the children and that the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of any of the children.

At interim hearing, the father sought relevantly the following orders (Exh “C”):
Notations
A .The Court notes the following definitions:
(1)“Father” means Mr Deacon, who is the respondent father in the substantive proceedings and the applicant in this Application in a Case;
(2)“Mother” means Ms Deacon, who is the applicant mother in the substantive proceedings and the respondent in this Application in a Case;
(3)“Child” and/or “Children” (as the case may be) means the parties children, namely X, born … 2009 (“X”) and Y, born … 2011 (“Y”);
(4)“Parties” means the mother and the father together.
Orders sought
(1)The mother deliver the children to the father at the McDonald’s Restaurant at B Town in NSW at 10.00 am on the Saturday after these Orders are made.
(2)That failing the Mother’s return of the children pursuant to Order 1 above then, pursuant to section 67U of the Family Law Act 1975 (Cth):
2.1 Any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth or of a State or Territory; or any person holding or acting in the office of a Child Recovery Officer; be authorised and directed, with such assistance as he or she requires or they require and, if necessary, by force to find, recover and deliver the children to the Father or a person nominated by him in writing, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found.
2.2That the Mother, her servants or agents, be and are hereby restrained from again removing or causing the removal of the children from the care of the Father, upon any breach of which injunction the persons to whom this recovery order is addressed are authorised and directed to arrest the mother without a warrant.
(3)That the recovery Order at Order 2, above, remain in force for 12 months.
(4)That pending further order the children live with the father.
(5)That the father is at liberty to return with the children to F State in the United States of America.
(6)That the names of the children be removed from the Airport Watchlist maintained by the Australian Federal Police at all points of arrival and departure in the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the children X, born … 2009, and Y, born … 2011, from the said Watchlist.
(7)The mother be thereafter restrained from causing or requesting the Australian Federal Police to place the children’s names on the said Watchlist.
(8)That pending further order, the father have sole parental responsibility for the children in relation to major long term decisions concerning the children’s health and education, such that the father may cause the children to resume their attendance at G School in F State in the United States of America and to arrange medical and dental treatment for the children as and when required.
(9)In the alternative to Order 8, and pending further order:
9.1The father is at liberty to obtain appropriate therapy for X and the Father shall keep the Mother informed of the details of such therapy, and these Orders shall be sufficient authorisation for any therapist so appointed by the Father to provide to the Mother details of the therapy; and
9.2That the father is at liberty to re-enrol the children at G School in City H, F State, U.S.A., and these Orders shall be sufficient authorisation for the school to forward to the Mother copies of all reports, notices and newsletters and other documents usually sent to the parents.
(9)That the children have liberal telephone, and/or Skype communication (or other such means of electronic communication) with the mother while they are in the father’s care.
(10)The mother and the father each be restrained from discussing these proceedings with the children or in their presence or in their hearing.
On 31 October 2019 orders and directions were made as follows:
(3)The Applicant father, in the present Application in a Case, file and serve any further supplementary written submissions to be relied upon, with those submissions setting out with particularity orders sought by him as to the mother’s time with the children and the implementation and cost of such implementation in the event that the children are returned to the United States of America, and short submissions as to the availability of registration and enforcement of orders of this Court in the relevant court in F State with such submissions to be filed and served by no later than Thursday, 14 November 2019.
(4)The Respondent mother in the present application and the Independent Children’s Lawyer file any short written submissions in response to those filed by the father by no later than Thursday, 28 November 2019.
(5)In the event that the parties or the Independent Children’s Lawyer seek to have the matter relisted for short oral argument, then the Independent Children’s Lawyer is at liberty to make application to the Court in chambers to relist the matter urgently.
(6)Upon completion of submissions, judgment will be reserved to chambers, noting that it is the intention of the Court that judgment will be delivered in a timely fashion before the conclusion of the present NSW school term, such that if the children are to be returned to the United States of America, that it will occur during the E Town Unified School District Christmas holiday break with a view to the children recommencing school in January 2020.
THE COURT NOTES THAT
(7)The parties and the Independent Children’s Lawyer are in agreement that the Court may approach the International Hague Judge for the Family Court of Australia, Justice Bennett, to make enquiries of the relevant Court in F State as to the practising procedure that may facilitate the reciprocal registration and enforcement of orders made by this Court in that State or in the United States of America as a whole.
Subsequently, by consent, orders were made in chambers that provided for the applicant to file and serve further supplementary written submissions by no later than 19 November 2019 and for the respondent mother to file and serve short written submissions in response by no later than Tuesday, 3 December 2019.
The mother’s supplementary submissions were not received until 5 December 2019 on which date judgment was reserved.
The father, in supplementary written submissions dated 14 November 2019, adjusted his position in relation to spend time with arrangements, communication between the parties and the children and sought orders as to the overseas registration of orders made in the event the Court acceded to his proposal that the children be returned to their residence with the father in F State. In relation to these matters, the father sought:
Spend time with
(9)That the children spend time with the mother in Australia and in F State as agreed between the parties in writing and failing agreement as follows:
9.1In Australia during the American long summer school holidays each calendar year, commencing on a date that maximizes the overlap (if any) between the said summer holidays and the New South Wales winter school holidays for the school in which Z is enrolled, and upon the children arriving in Australia they thereafter spend 21 consecutive nights in the care of the mother, at the conclusion of which the mother shall cause the children to return to the United States of America;
9.2The Court NOTES that the Father intends to cause the children to spend time with the Mother in Australia during the American Christmas school holidays that commence in even years, the children’s time with the Mother on those occasions to commence on a date that follows the conclusion of the relevant school term and includes 24, 25 and 26 December, and upon the children arriving in Australia they thereafter spend no less than seven consecutive nights in the care of the mother, at the conclusion of which the mother shall cause the children to return to the United States of America or shall deliver the children to the father (as nominated by the father);
9.3Changeover for the arrangements in Orders 9.1 and 9.2 shall take place as agreed and failing agreement at Sydney International Airport, a location within the Sydney metropolitan area, the mother’s parents’ residence in the J Region, or at a location in B Town, NSW, such location to be determined as follows:
9.3.1The mother nominate the changeover location for the commencement of the children’s time with her;
9.3.2The father nominate the changeover location for the conclusion of the children’s time with the mother; and
9.3.3The parent who nominates the changeover location must do so in writing no later than seven days prior to the changeover date.
9.4In F State no less than twice per calendar year for periods of up to seven consecutive nights nominated by the mother, provided that the mother provides no less than four weeks’ notice (except in urgent circumstances or emergencies) to the father of her intention to visit and takes into account the children’s school commitments, extracurricular activities and special family occasions and subject to Order 9.5 below;
9.5If the mother is in F State to spend time with the children on any of the following occasions, that the children’s time with the mother set out in Order 9.4 be suspended and the children instead spend time with the mother and with the father on those occasions as follows:
9.5.1With the mother on the mother’s birthday on … each year from 8.00 am (or the conclusion of school if the children are at school on that day) until 8.00 am the next day;
9.5.2If Z is present with the mother in F State, with the mother on Z’s birthday on … each year from 8.00 am (or the conclusion of school if the children are at school on that day) until 8.00 am the next day;
9.5.3In odd years, with the father from 5.00 pm on the day before Good Friday until 5.00 pm on Easter Monday;
9.5.4In even years, with the mother from 5.00 pm on the day before Good Friday until 5.00 pm on Easter Monday;
9.5.5With the mother on Mother’s Day on the second Sunday of May each year from 7.00 pm the day before Mother’s Day until 8.00 am the next day;
9.5.6With the father on Father’s Day on the third Sunday of June each year from 7.00 pm the day before Father’s Day until 8.00 am the next day;
9.5.7In odd years, with the father from 8.00 am on Independence Day (4th of July) until 8.00 am the next day;
9.5.8In even years, with the mother from 8.00 am on Independence Day (4th of July) until 8.00 am the next day;
9.5.9In odd years, with the father on X’s birthday on … from 3.00 pm (or the conclusion of school if the children are at school on that day) until 7.00 pm;
9.5.10In even years, with the mother on X’s birthday on … from 3.00 pm (or the conclusion of school if the children are at school on that day) until 7.00 pm;
9.5.11With the father on the father’s birthday on … each year from 8.00 am until 8.00 am the next day;
9.5.12In odd years, with the father on Y’s birthday on … from 3.00 pm (or the conclusion of school if the children are at school on that day) until 7.00 pm;
9.5.13In even years, with the mother on Y’s birthday on … from 3.00 pm (or the conclusion of school if the children are at school on that day) until 7.00 pm;
9.5.14In odd years, with the father on Halloween (31 October each year) from 8.00 am (or the conclusion of school if the children are at school on that day) until 8.00 am the next day;
9.5.15In even years, with the mother on Halloween (31 October each year) from 8.00 am (or the conclusion of school if the children are at school on that day) until 8.00 am the next day;
9.5.16In odd years, with the father from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day, then with the mother from 2.00 pm on Christmas Day until 2.00 pm the next day;
9.5.17In even years, with the mother from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day, then with the father from 2.00 pm on Christmas Day until 2.00 pm the next day;
9.5.18In odd years, with the mother from 2.00 pm on New Year’s Eve until 2.00 pm on New Year’s Day; and
9.5.19In even years, with the father from 2.00 pm on New Year’s Eve until 2.00 pm on New Year’s Day.
9.6The mother and the father are at liberty to cause Z to travel to F State to spend time with the children, either in conjunction with the mother’s time with the children set out in Orders 9.2 and 9.3 above or at other times as agreed between the parties in writing and NOTING that the father will not seek reimbursement from the mother for expenses incurred by him for Z during the visit (not including expenses covered by travel insurance which shall instead be recovered from the insurer).
(10)The Court NOTES that the Father will pay the children’s airfares and associated travel expenses for the visits to Australia during the long summer school holidays in July and August and for one other round trip by the children to and from Australia per calendar year;
(11)The Court NOTES that the Father will pay the airfares and associated expenses for one round trip for Z to visit the children in F State each year, the father to continue making such payments until Z turns 21.
(12)The Court NOTES that the father will pay half of the mother’s airfares for her direct flights between Australia and F State.
Communication
(13)That the children have liberal telephone and/or Skype communication (or other such means of electronic communication) with the mother while they are in the father’s care, and no less than twice per week, having regard to the time difference between F State and New South Wales and having regard to the children’s attendance at school and extra-curricular activities.
(14)That the father encourage and facilitate the children to each write and post hard copy letters to the mother at least once per month.
(15)The mother and the father each be restrained from discussing these proceedings with the children or in their presence or hearing, from denigrating or making negative or disparaging remarks about the other parent or the other parent’s family members to the children or in the children’s presence or hearing and from causing or permitting any other person to do so.
(16)That the mother and the father communicate with each other in a polite and civil manner.
Communication – medical
(17)These orders shall be sufficient authorization for any medical practitioner or allied health professional to provide either parent with details of all medical conditions and treatments pertaining to the children.
(18)That the parent who has the care of the children promptly inform the other parent, as soon as reasonably possible, of any medical or other emergencies involving the children whilst the children are in that parent’s care.
Communication – school
(19)These orders are sufficient authorization for any school that the children attend to send to both parents copies of all reports, notices and newsletters and other documents that are sent to parents.
(20)That the parties are each at liberty to attend any school function or event involving the children and to which parents are invited or ordinarily attend.
Overseas Registration
(21)That both parties forthwith do all acts and things necessary to cause these Orders to be registered in the Superior Court of F State, H County.

Jurisdiction

The basis of this Court’s jurisdiction over the subject children in parenting proceedings are set out in s 69E of the Family Law Act 1975 (Cth) (“the Act”) in the following terms:
Child or parent to be present in Australia etc.
(1)Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2)In this section:
relevant day, in relation to proceedings, means:
(a)if the application instituting the proceedings is filed in a court—the day on which the application is filed; or
(b)in any other case—the day on which the application instituting the proceedings is made.
In the present case, the father is an Australian citizen. The mother is an Australian citizen and the children who were born here are Australian citizens.
At first glance this Court has jurisdiction.
The circumstances in which this Court’s jurisdiction will be exercised are limited by virtue of Australia having become a signatory to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children, commonly referred to as the Child Protection Convention (see Part 13AA, Division 4 of the Family Law Act 1975 (Cth)).
The objectives of the Child Protection Convention are set out in Article 1 as follows:
Article 1
(1)The objects of the present Convention are—
(a)to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
(b)to determine which law is to be applied by such authorities in exercising their jurisdiction;
(c)to determine the law applicable to parental responsibility;
(d)to provide for the recognition and enforcement of such measures of protection in all Contracting States;
(e)to establish such cooperation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.
(2)For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.
The scope of the “measures” referred to in Article 1 is set out in Article 3 which provides:
Article 3
The measures referred to in Article 1 may deal in particular with—
(a)the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
(b)rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence;
(c)guardianship, curatorship and analogous institutions;
(d)the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
(e)the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
(f)the supervision by a public authority of the care of a child by any person having charge of the child;
(g)the administration, conservation or disposal of the child’s property.

As discussed by Rees J in Lao & Yeng [2018] FamCA 560, it is clear that the provisions of the Child Protection Convention are intended to apply to applications, such as the present, where the Court is being asked to deal with issues of parental responsibility and where and with whom the child will live.
The provisions of the Child Protection Convention are imported into the Act at Division 4 of Part 13AA. This Division, and particularly s 111CD, qualifies the jurisdiction otherwise conferred on the Court pursuant to s 69E.
Section 111B stipulates that Division 4 has effect “despite the rest of the Act”. In the Explanatory Memorandum of the Bill inserting Division 4, it states:
Subsection 111CB(1) provides that Division 4 has effect despite any other provision in the Act. In order to ratify the Convention, Australian law must be adjusted so that the conflicts of law rules currently applied by courts under the Act conform to the provisions set out in the Child Protection Convention. Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4 prevail over provisions elsewhere in the Act such as subsection 31(2) (jurisdiction of the Family Court in relation to persons and things outside Australia), section 63E (registration of parenting plans), section 65D(making of parenting orders), section 67ZC (making of child welfare orders) and section 69E (child or parent to be present in Australia).
Thus, it is made clear that the applicable provisions in determining the Court’s exercise of jurisdiction are contained in Division 4 of Part 13AA. Specifically, Subdivision B which provides as follows:
Subdivision B—Jurisdiction for the person of a child
111CC Application of this Subdivision
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a)a central authority or competent authority of a Convention country;
(b)a competent authority of a non-Convention country.
111CD Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a)a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child’s protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii)the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or
(v)a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(c)a child who is present in a Convention country, if:
(i)the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or
(iv)a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(d)a child who is present in Australia and is a refugee child; or
(e)a child who is present in a non-Convention country, if:
(i)the child is habitually resident in Australia; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia, if:
(i)the child is habitually resident in a non-Convention country; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a)one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b)one or both of the parents have parental responsibility for the child; and
(c)the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d)the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e)the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.
(4)Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.
It is an agreed fact that the United States of America is also a signatory to the Child Protection Convention. However, a “Convention country” is defined for the purposes of Division 4 as “a country, other than Australia, for which the Child Protection Convention has entered into force”: (s 111CA). Although the United States of America is a signatory, it has not ratified the Convention and it is thus as the United States of America has signed but not ratified the Convention, subsections 111CD(1)(e) or 111CD(1)(f) applies.
Thus, notwithstanding whether the children are habitually resident in Australia or the United States of America, this Court has jurisdiction by reason of the interplay between the Convention and the provisions of the Act.

Context

The mother is presently aged 43 and resides in B Town, New South Wales. The father is presently aged 50 and resides in E Town, F State in the United States of America.
The parties’ relationship commenced in early 2007 and they were married in 2009. Separation, in circumstances as discussed below, occurred in January 2019.
The mother has a child of her former relationship that child being Z born in 2005. Z is part of the mother’s household in B Town.
There are two children of the parties’ relationship X born in 2009, now aged 10, and Y born in 2011, now aged eight.
The father was born in New Zealand, subsequently moving to Australia and becoming an Australian citizen. The mother was born in Australia and is an Australian citizen. Both children were born in Australia and are Australian citizens.
Prior to the parties’ separation, the family including Z lived in E Town, F State. The father continues to reside there.
It appears that during their relationship the parties had a somewhat troubled relationship. The mother asserts that the father did not accept Z as part of the household. The parties attended counselling during the early years of their marriage and following the birth of the parties’ children the mother suffered from ongoing depression.
It is common ground that the mother and the child Z returned to live in Australia in January 2019 after the father refused to allow the children of the relationship to return to reside in Australia with the mother.
In April 2019 the mother returned to F State by arrangement to visit the children.
By agreement between the parties the children and the father travelled to Australia on 12 July 2019 to facilitate the children spending school holiday time with the mother in July 2019. The father returned to F State and was to return to Australia to collect the children from the mother on 17 August 2019. It is common ground that the children were retained by the mother in Australia after that date and they have remained here residing with the mother until hearing.

The mother’s evidence

The parties initially resided in the mother’s apartment at Suburb K in Sydney. In August 2008 the mother sold her apartment and the parties purchased a home at Suburb L in Sydney. The Suburb L property was later sold and the parties rented at Suburb M in Sydney, that property being a cottage close to the parties’ workplaces and school for Z and X.
In mid-2011 the father changed his career and commenced to pursue a career in the entertainment industry.
In 2014 the parties commenced to see a marriage counsellor. The mother asserts that there were issues in their relationship as a consequence of the father’s continuing verbal and psychological abuse of her. The mother asserts that counselling did not resolve their relationship issues and that their relationship continued to deteriorate.
The mother obtained full-time employment in April 2014 earning about $75,000 per annum. The parties hired an au pair to assist with the children as they were both now in full-time employment.
In April 2016 the father travelled to City H, F State seeking employment. He obtained a temporary Visa that allowed him to remain in the United States of America for a period of three years at which time he would need to reapply for a Visa. In May 2016 the father purchased a home in E Town, F State using surplus funds from the sale of the parties’ home at Suburb L. The mother’s parents assisted by advancing to the parties by way of loan $300,000.
In July 2016 the mother and the children X and Y joined the father in City H on temporary non-immigrant status visas. The child Z remained in Australia living with her father for the next 12 months.
For the first eight months in the United States of America the father was unable to find work in the local area and had to travel for employment. The parties’ savings were soon exhausted. The mother was not permitted to work by reason of her visa restriction and was the full-time homemaker and carer for the children. The mother, otherwise, engaged herself by volunteering at the children’s schools in various capacities.
In August 2017 the child Z moved to the United States of America to live with the parties and their children. The mother asserts that the father demonstrated aggression towards Z and endeavoured to hinder Z’s relationship with the two younger children. The mother asserts that by late 2017 she had spoken to the father about divorce.
The mother complains that the father has anger management problems and that his anger would frequently escalate to a point that was terrifying not only for her but for the children. She asserts that the father would break items of crockery on a regular basis, on one occasion requiring emergency hospital attention to his hand as a consequence of doing so. The mother further complains that he was belittling towards her in her role as homemaker and parent and that she was isolated from friends.
On 31 October 2018 an incident occurred between the father and Z with Z telling the mother that she could not continue to live in the household. The mother informed the father that she had remained in the relationship for the sake of the children X and Y as she would not live without them. She says that the father told her that she could take X and Y if she left.
On 1 November 2018 the mother informed the father that she had decided to leave him and that she would be taking all three children back to Australia. The father responded “don’t expect me to pay for Z”.
In late November 2018 the mother travelled to B Town, New South Wales with all three children to organise accommodation for herself and the children and to enrol the children in school. The father had on 8 November 2018 signed application forms for the children to attend D School “commencing 2020 maybe 2019”.
The mother asserts that after travelling to Australia the father cancelled her credit and debit cards that were attached to the parties’ various accounts.
The mother and children returned to F State and were due to return to Australia in early January 2019. One week before they were due to travel to Australia the father took possession of the passports for the children X and Y and secreted them with the father informing the mother that should she try to take the children he would call the police.
It appears that the mother had little choice but for herself and the child Z to return to Australia for the commencement of Z’s school year.
On 15 March 2019 the mother informed the relevant authorities in the United States of America that she was withdrawing the visa extension applications that were pending for herself and the two children. However, on 18 March 2019 such extensions were approved on the application made by the father without the mother’s knowledge.
The children, asserts the mother, have been clearly engaged by the father in the dispute as to their residence with the mother asserting that the children have been coached by the father as to their wishes.
The child X is presently enrolled at N School in B Town in year four. He had previously been enrolled in the elementary school at E Town F State. To the mother’s observation the child has settled in well to his school and the school is working closely with him for his long-term anxiety. The mother has arranged a referral for the child to have counselling. Exh “M” reveals that the mother has engaged the child with Ms O, a social worker in B Town, for issues relating to the child’s anxiety. Notes reveal that the child had been engaged with P Counselling Centre and had previously attended the 10 week program at the Q Centre in Sydney. The mother asserts that his symptoms of severe anxiety had significantly diminished since his arrival in B Town. X reported that he had commenced swimming and was loving it. X discussed with the counsellor strategies “to keep cool” he had learned at the Q Centre and how to consolidate them. Testing on 24 September 2019 reveals indications of generalised anxiety disorder.
To the mother’s observation, X has made friends at school and is eager to go to school each day. He has joined the school band and is an instrument. The child is engaged with the extended maternal family and, in particular, to the mother’s observation enjoys being with the animals on his maternal aunt’s property.
Insightfully, the mother says that to her observation X’s anxiety has worsened with the child telling her that he feels responsible for the arguments between his father and his mother. The child’s anxiety manifests itself with the child hitting his head with his fist and hitting hard surfaces as the child says “to take away the pain inside”.
The mother says that she is distraught with this circumstance and has obtained a referral for the child for paediatric development, assessment and therapy. The mother reflects that when living in the United States of America the child manifested similar behaviours and was engaged by the mother with a counselling service in F State. The child is presently attending upon a counsellor once every two weeks. To the mother’s observation the child has settled into the B Town environment, making new friends and having those friends come over for play and sleepovers. He has received a number of academic awards at his school.
The child Y, says the mother, is currently enrolled in N School in year two. Previously she was enrolled in the elementary school in the United States of America. To the mother’s observation the child is settled in extremely well and has made many friends. The child is enrolled in and is continuing her dancing as an extracurricular activity. Otherwise, the child has received academic awards at school for reading and participation in class. Generally, the mother is of the view that Y has settled well into life at B Town.
During the period of cohabitation the mother was taking various prescribed medications. Since returning to Australia the mother says her pain symptoms have significantly improved and she no longer takes medication save for her anti-anxiety medication.
The mother commenced attending upon a psychologist in B Town in early 2019. Notes in March 2019 reflect much of the mother’s complaints as to the father and his behaviour.
The mother and children currently reside in a three-bedroom cottage in B Town with an enclosed yard for the children.
The mother is undertaking further studies in B Town to enable her to be an educator. Such employment would allow her to work during school hours and have leave during school holidays, particularly the long Christmas break. The mother has secured two days per week employment with this position to become a paid position in 2020.
It is the mother’s long-term proposal for the subject children to join their sibling at D School, however, the father has not agreed to sign necessary enrolment forms.
The mother asserts that she is well aware of the importance of the children having a strong relationship with their father. The children speak to their father each morning before school and he will speak to them often over the weekend periods.

The father’s evidence

The father asserts a significant engagement with the children and in their day-to-day care from their birth.
He acknowledges that the mother has struggled with depression since the birth of the first child and that this is ongoing.
He does not concur with the mother’s perception of him having a conflicted relationship with the child Z but asserts that he continued to be welcoming and accepting of the child.
The father asserts that he has obtained employment from September 2008 working for Company R in City H. His income is approximately $180,000 US per year gross.
As to the purchase of the real estate property in E Town in which the family resides, that property was purchased in the name of the father and the mother and the paternal grandfather and his wife, apparently by reason of local requirements as to borrowing.
The father asserts that he and the mother have engaged in seeking residency status in the United States of America since 2013. In May 2016 the father obtained a 0-1Visa and then obtained 0-3 Visas for the mother and the three children. These temporary visas were due to expire in March 2019. In late September 2018 the father became aware that applications for permanent residency would be delayed and that it would be necessary to renew the temporary visas that were then in place.
The father asserts that he and the mother signed the necessary documents seeking to renew the temporary visas and the necessary applications were filed in December 2018. The father acknowledges that the mother had sought to stop the issue of further temporary visas for the children but that he proceeded himself to obtain the visa extensions.
The father gives evidence as to the family’s life in F State; they being well settled and living within a friendly and accepting community.
The father denies any conversation with the mother as to separation in 2017 but surprisingly acknowledges that in June 2018 she told him that she wanted a divorce.
The father acknowledges that in December 2018 the mother and all of the children travelled to Australia and went to B Town, New South Wales. Surprisingly, he asserts he has no recollection of signing any enrolment forms for the children X and Y to attend D School, asserting that it was perhaps done in the context of discussing with the mother various other alternate schools including those in F State.
Yet the father acknowledges that after the mother had travelled to B Town she said to him “promise me that you agree X and Y can go to D School” to which he replied “I am not going to make a promise I don’t intend to keep. I am open to D School at some time in the future but that’s it”.

The father, subsequent to the mother’s return to the USA, told the mother that he would not agree to the mother taking the children to Australia. He acknowledges that he took the children’s passports and deposited them in a secret location on the night before the mother and the children were to return to Australia.
He observed that the children were upset when the mother moved back to Australia and that they expressed to him a feeling of guilt for not travelling with their mother.
The mother and father exchanged emails after her return to Australia in which it is clear that the father had an open mind as to the children moving to Australia in July 2020.
Subsequent to the mother’s return to Australia, the father, by reason of his work obligations, has hired a nanny to care for the children each morning, ready them for school and take them to school. The children also attended after school care until the father could collect them. The father facilitated electronic communication between the mother and the children in the period before July 2019.
The father travelled to Australia with the children on 12 July 2019. He was to return and collect the children on 17 August 2019.
It came as a surprise to him when he found that the mother by 7 August 2019 had enrolled the children in school in B Town. It is clear from Exh “L” that the mother undertook a pre enrolment interview at the school on 26 July 2019 and that the children commenced at the school only days later.
Then on 9 August 2019 the mother commenced the present proceedings.
Curiously on 9 August 2019 the father communicated to the mother’s solicitor his willingness to “assign sole custody to [the mother] at this time under certain conditions including that allegations as to his misconduct be removed: Exh “F”.
The mother’s retention of the children in Australia did disrupt the children’s daily lives in the USA and their ongoing engagement in their then social context.
On 4 October 2019 the father, who was in Australia for the purposes of the proceedings before the Federal Circuit Court of Australia, spent time with the children. He did so again on 20 and 25 to 27 October 2019.
As to the child X the father asserts that the child, a sensitive child, became anxious and upset “when in the mother’s care”. He asserts that the child’s behaviour improved after the mother returned to Australia. Yet it appears that the parties when together in the USA both sought assistance for the child’s anxiety.
As to the child Y the father sees her as a confident and strong personality.
The father denies the mother’s assertions as to his aberrant and derogatory behaviour during their cohabitation. Yet he acknowledges his anger and shouting and that he attended hospital after one incident. He ascribes conflict and anger to the mother. He says that he and the mother attended counselling that “assisted me with managing conflict and my emotions and I ceased to have angry outbursts when I was stressed”. Such counselling was for a period of a year after which the father saw a psychologist on a fortnightly basis “to work on anger issues”. He continues to see a psychologist regularly.
Family violence is defined in s 4AB of the Act:
Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
Both parents reported to the family consultant that the children had on occasion been exposed to their conflict.
In his Case Outline (Exh “C”) the father concedes “that whilst denying the mother’s allegations of verbal and physical family violence during the relationship the father concedes that the presumption (as to equal shared parental responsibility) may not apply”.
The father asserts that the mother has seen a psychologist as well. For his part, he expresses concern as to the mother’s mental health and her lack of emotional regulation.
Should the children live with him the father will hire a nanny to assist in day-to-day care particularly in the mornings and says he has arranged flexible work hours to assist with childcare.

The Child Responsive Program Report

The mother and father, the subject children and the child Z attended upon a family consultant for the purposes of the preparation of a Child Responsive Program Memorandum on 24 October 2019 (Exh “A”).
The consultant notes that the parents had not engaged with any formal mediation or dispute resolution process in relation to parenting arrangements for the subject children.
The consultant reports that the father has the majority of the three-year visa, that permits him to live and be employed in the United States of America, remaining and hopes to secure a ‘green card’ that would permit him to live and work in the United States of America permanently.
The mother, it is reported, has dual Australian and British citizenship, the father has dual Australian and New Zealand citizenship and the subject children are both Australian citizens.
The family consultant considered the key issues to be as follows:
•   The most appropriate arrangements for parental responsibility of X and Y;
•   The most appropriate arrangements for X and Y to live with and or spend time with each of their parents, including whether they will predominantly live in Australia or the United States;
•   The potentially adverse impact on X’s and or Y’s mental health and well-being that may arise from a situation where they are unable to maintain close relationships (involving frequent direct interaction) with each parent;
•   The potentially adverse impact on X’s and or Y’s development and well-being that may arise from their exposure to, or involvement in, significant parental conflict.
As to the child X the family consultant observes:
13.Ms Deacon said that since he moved to B Town, X has been diagnosed with “situational depression” by her local doctor, Dr U. She then said that since X has commenced seeing a counsellor, Ms V, this had been reconsidered as anxiety. Ms Deacon said that X has a history of being treated for anxiety that pre-dates the family’s move to F State. Ms Deacon said that Mr Deacon has not been involved in the most recent assessment of X’s mental health. Mr Deacon confirmed that he has not been consulted in relation to X’s mental health since X has been in Australia. Mr Deacon expressed concern about X self-harming by banging his head, as an indicator of distress, and questioned whether or not Ms Deacon has made appropriate arrangements to ensure X’s well-being. Ms Deacon said that she has also taken X to see a podiatrist and he has been prescribed orthotics. (emphasis added)
The family consultant observes that both parties involved the children in appropriate extracurricular activities both in the United States of America and as to the mother in B Town.
The child Y was interviewed by the family consultant and it is noted by the consultant:
19. Y said that she thought she had come to B Town to visit her mother and that this then turned into living there. She said that this change had felt “weird” but clarified “not bad”. Y spoke of missing her mother and feeling bad earlier this year when Ms Deacon moved to Australia; she said that having her dog, friends and brother around at that time had helped.
20.Y spoke positively about doing things with each of her parents, particularly art activities with her mother and cuddling and watching television with her father. Y did not identify any fears or worries in relation to either parent.
21.Y said that she wants her parents to live together again and that if this is not possible, then for them to at least live in the same country. She said that she will feel sad and happy, if she lives with either parent and they remain in separate countries. Y added that she does not like flying because she feels sick and that she also does not like long car trips. Y later expressed concern about moving back and forth between Australia and the United States and said “I just want to stay in one place”. Y said that X had told her he plans to tell the Family Consultant, that he wants “both” parents and that she also wants this.
On interview with the child X the family consultant reported:
23.[X] appeared upset throughout the time he spoke with the Family Consultant. X said that he feels like his family is “properly split in half” with his mother’s family in Australia and his father’s family in the United States. He continued “I want to live where my family is (and) I feel like I have to choose”.
24.X identified his family as “Z, Y, Mum and Dad”. He clarified that “technically” Z is his “half sister”. X spoke positively about spending time with and interacting with each of his parents. He also said “wherever I am, I am missing someone”. X did not identify any fears or worries in relation to either parent. X said that currently he speaks to his father by telephone for about an hour each day.
25.X said “I liked America, I had lots of friends” who lived nearby. He said in contrast “here, I don’t have many friends, two or three” and they are not in walking distance to visit. X said that “Australia has it’s pros and cons” and expressed concern about the proximity to him of brown snakes and poisonous spiders. He explained that he would need to go into the desert in the United States to find a rattlesnake and there he “do[es]n’t have to be scared of animals that [could] kill me” there. X also spoke positively about his pet dogs and friends in F State. X said, however, that he now has some animals, including a cow and a pig, that people his mother knows have given him, on his aunt’s farm. He said of remaining in Australia that he “feels it’s unfair, it happen[ed] so suddenly” and that he still has unopened birthday presents in his room in F State. X said he has spoken to his mother about missing “America”, missing his friends and that he feels sad that the decision to remain in Australia was made so quickly.
26.X said that “every time I move, I want to go back”. He explained that when he moved to America he had missed his friends in Sydney. X continued, that those friends “don’ remember me anymore”. He said “now that I’m back I still feel like I want to be there”. X then said that he hates flying and can’t drive or go by boat between Australia and the United States. X then said that he now worries about when he gets on an aeroplane what will happen at the other end and also that he is scared he won’t get off the plane.
27.When X was asked if he thinks about his parents living together again, he said “I understand that they don’t want to be back together”. He clarified that he feels sad about this situation. X then said that he sometimes wishes they had not moved to the United States in the first place.
28.When X was asked how he would feel if it is decided he will remain living with his mother; he said “[I] want Dad to come live near us”. X then said “Dad has explained his story, Mum has explained her story” and “both have good reasons” (“Dad cannot work here” and Mum “can’t go to America”) which he finds very difficult. He said “[I] want to be where both of them could live”. X then said he feels “like this situation is too much” and related this to feeling depressed. Given X’s response, it did not seem that it would be sensitive to X’s distress to ask him about how he may feel if it is decided that he will return to live in F State with his father. X then said that he does not want to be required to choose which parent he lives with (he was reassured during the course of the interview that this was not being asked of him) and similarly does not want someone from outside his family making this determination.
The older half sibling Z told the family consultant:
29.…Z described a generally positive relationship with her mother and indicated that she feels closer to her mother than to either her father or Mr Deacon.
30.Z described her relationship with Mr Deacon as “genuine” and “open”. She said that she and Mr Deacon maintain occasional communication by text message.
31.Z said that she would miss X and Y if they go to live with Mr Deacon in the United States. She said that in 2016, when she had remained in Sydney, it had been “okay” initially but that she had increasingly missed her siblings, particularly as her relationship with her father deteriorated. Z then added “I know Mum would be completely broken” if X and Y aren’t living with her. She reflected that this would be difficult for her in both missing her siblings as well as having “to see Mum sad”.
As to the mother and father’s assertions as to aberrant behaviour and conflict in the relationship, the family consultant observed:
“The accounts of each parent appear to represent poorly managed conflict, with each seeming to blame the other as the primary instigator of this, rather than representing a pattern of controlling or fear inducing behaviour by either parent. Both parents reported that the children had on occasion been exposed to their conflict.”
As to the parties’ mental health issues the family consultant concluded:
37.It is unclear whether a poorly managed mental health state for either parent is a predominant issue in this matter at this time. Mr Deacon reported that he has engaged with a therapist to support him following the breakdown of his relationship with Ms Deacon. Mr Deacon also reported a prior history of effective treatment for anger management. Ms Deacon provided similar information regarding the efficacy of Mr Deacon’s engagement with anger management treatment. Both parents reported a history of treatment for depression for Ms Deacon. Ms Deacon said that currently she is consulting with her local doctor and taking medication in relation to depression.
In “Evaluation” the family consultant said:
41.X and Y each indicated close relationships with each of their parents. Neither indicated a preference for one parent over the other. Each indicated a preference that their parents live in the same country. Both children appeared acutely aware of the dispute between their parents. Whilst there were no indications that the children’s views had been directly influenced by either parent, it appears likely that their views have been significantly influenced by exposure to or awareness of their parents’ dispute. Whilst, each parent identified practical difficulties for themselves in relation to a situation of the parents living in closer proximity to each other, neither parent’s proposals for the children appear to fully appreciate the apparent strength of each child’s relationship with the other parent.
42.A situation of ongoing physical separation from either parent is likely to be distressing for each of X and Y. They may benefit from counselling or support from a clinician who has significant experience in working with children in separated families with high parental conflict. Notwithstanding any difficulties that the parents may have in making joint decisions about the children, it is unlikely to be in either child’s interest to be engaged in any psychological or therapeutic intervention where the clinician is not able to obtain information from and provide treatment information to each parent.
43.If a decision is made (either by Judicial determination or by consent) that the children will live in a different country to one of their parents, then this is likely to be extremely difficult for the parent the children do not live with. In that circumstance, that parent is encouraged to seek support or, if needed, therapeutic intervention to assist with maintaining their well-being, particularly for times when they communicate with and spend time with the children.
44.It may assist (with communication, appropriately supporting the children and joint parental decision making) if the parents each complete a recognised post-separation parenting program (S Group in B Town may offer Parents not Partners, T Group C Town may offer Keeping Kids in Mind; it is likely that specialist agencies or suitably qualified clinicians in the City H area will provide such programs; an on-line program such as could also be considered).
Regrettably, the fact is that these children will on present indication have parents that choose to live internationally apart on a long term basis.

Interim Parenting

In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Since Goode (supra), s 69ZL of the Act has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.
In Marvel & Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122.Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

The Law

The relevant principles in relation to parenting and interim proceedings are well settled Goode (supra). The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub‑s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)];
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].
In the event that the Court makes an order that the parties have equal shared parental responsibility the Court must:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents: s 65DAA(1).
If no order is made for equal time then the Court must:
a)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
c)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: s 65DAA(2).
By reason of the international aspects to this matter, equal or substantial and significant time is not sought by either party. Thus the question of time with the non-resident parent is to be determined by the children’s best interest considerations.

Best Interests

The Primary Considerations: s 60CC(2)

The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Notwithstanding the parties’ allegations one against the other the family consultant reported:
35.Neither parent reported concerns that the children are at risk of physical harm or neglect with their other parent. Each expressed concern about the potential for emotional harm for both children with the other parent although also acknowledged that the children both had strong generally positive relationships with the other parent. Mr Deacon specifically expressed concerns about the implications for how the children may be raised given by Ms Deacon, given his perception of the increasing divergence of the parents’ values. Mr Deacon expressed concern that Ms Deacon has acted to influence the children’s views. It is noted that Ms Deacon indicated similar concerns about Mr Deacon in her affidavit filed on 9 August 2019.
In the overarching circumstances of this matter, the Court is satisfied that there is no need to fashion orders to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The remaining primary consideration focuses upon what orders can be made to maintain a meaningful relationship between both parents and the children. Both parents appear to be resolute in their desire to remain internationally apart. Ultimately, it will fall upon the parents or the Court to determine the nature and practical implementation of the children’s time with the non-resident parent. Both parents, if the children are to live with either of them, sensibly seem to focus on time with the other in terms of time during school holidays either in the USA or New South Wales. Regrettably, such arrangements are the only practicable arrangements so as to avoid ongoing disruption to the children’s educational attendances.
Both children, for their part as most children do, wish to see their parents back together again or at worst living in the same country so that time with both of their parents is not confronted by overwhelming distance and onerous travel.
The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents, regrettably, in the circumstances of the situation that confronts it. A relationship may be less than optimal but nonetheless meaningful (Godfrey & Sanders [2007] FamCA 102 (“Godfrey”) at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The children have established relationships with both parents. The mother presents as the children’s primary carer both historically and at present. The mother is more available to the children in their day-to-day care. The children, it appears, by reason of her primary role have a settled attachment with the mother. The father has engaged in full time work and his relationship with the children and the time available to him with them has been subject to such obligations and will continue to be so such that he is required to hire a nanny and utilise after school care to assist his parenting obligations if the children are to reside with him. In oral submissions the ICL expressed concern as to the negative impact on the children’s relationship with the mother should they be returned to the USA.
Both parties seek to implement contact with the non-resident parent in an appropriate way. Orders should be fashioned to ensure that the children have a meaningful relationship with the non-resident parent.

The Additional Considerations: s 60CC(3)

Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:
a)The views expressed by the children are at best ambivalent and represent the views of young children conflicted by the separation of parents that they both love. The High Court said recently in Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [34] – [35]:
… In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive status], but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.
It is thus difficult to ascribe any significance to the views expressed by the children as set out above with clearly orders to be made that are in the children’s best interests notwithstanding.
b)Both children have a settled and secure relationship with both parents. Historically, it appears that the children have had a more settled relationship with their mother who over recent years has devoted her time as full-time homemaker and caregiver for the children whilst the father has engaged in employment that has seen him absent from the home for extended periods each day and on occasions having an obligation to travel. Such is not a comment made in criticism of the father but simply the reality of the father who has undertaken the role of primary income earner. Otherwise, the children have an established relationship with the extended paternal family and maternal family and as they move between both parents such relationships will continue. Importantly, the children enjoy a good relationship with the child Z, their half-sister, who has been a member of their household now for some time. Both children importantly identify Z as family. A move of the children to the United States of America will dislocate this important sibling relationship with such a prospect described by the ICL as a “significant concern”.
c)This consideration favours the children remaining with the mother pending final hearing.
d)Both parents have acted unilaterally in respect of their actions relating to the children as outlined above. However, the family consultant observes:
38.Mr Deacon and Ms Deacon demonstrated a capacity to interact in a positive manner during the course of this assessment, in the presence and absence of the children. Underlying this, however, is likely to be significant issues of trust, with each parents alleging that the other has unilaterally made significant decisions regarding parenting and other arrangements for the children.
Yet it is clear that historically both parents have been actively involved in making relevant long term decisions in relation to the children and since January 2019 facilitating the children spending time and communicating with the other.
e)The mother seeks to retain the children in B Town, New South Wales whilst the father seeks that the children returned to reside with him in the United States of America. The children have now been settled in the circumstances in B Town for about six months. A dislocation of that arrangement will see the children once again being uprooted in their day-to-day lives and endeavouring to recommence their life in the United States of America but without the significant relationship with their mother. Both children appear reluctant to be dislocated again. However, such dislocation may be an inevitable reality after a final hearing or it may not. If the children reside with the father there is a prospect that they will be required following final orders to return to reside in Australia. There is no doubt that the children’s relationship with the non-resident parent will be difficult pending final hearing and inevitably if the mother and father remain steadfast in their wishes to live internationally apart.
The Full Court in Goode (supra) said:
72.Our view, 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 children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
And then:
80.Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC (3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.
It is to be remembered that the children were to return to Australia with the mother in January 2019 but for the father the day before travel secreting the children’s passports. They remained with him by reason of his own admitted subterfuge. He cannot now be seen to complain as the mother retaining the children here.
Should this matter proceed to final hearing in this Registry it is most probable that such hearing would be finalised within about six to nine months from now subject to exigencies that may arise in relation to a Chapter 15 Single Expert Report. There is significant sense in not disturbing the children’s present circumstances pending final hearing particularly where the father’s own evidence is that his prospects of permanent residence in the United States of America is not known. He has less than three years left on his temporary visa as do the children. Evidence as to status in terms of United States of America residence will no doubt form an integral part of his long term proposals for the children. Such will be a matter for evidence at final trial.
f)The difficulty of the children spending time with the non-resident parent is obvious. Both parents have promoted arrangements that address such issue. Notwithstanding who the resident parent is time with the other will be limited to school holidays and time when the non-resident parent can travel overseas to see the children. It is common ground that the NSW school holidays are more generous than those in F State and present good opportunities for the children to have time with the father should they remain in the mother’s primary care. The ICL submits in Supplementary Submissions that the father’s proposals are restrictive on the mother in circumstances where a significant financial burden will be placed on the mother. The ICL supports orders that provide for both parties to share costs of travel.
g)Both parents have made complaint against the other as to shortcomings in their respective parental capacity but not so much as to assert any significant disentitling factor. They both present as distrustful of each other but as the family consultant reports “demonstrated a capacity to interact in a positive manner during the course of this assessment, in the presence and absence of the children” and “neither parent reported concerns that the children are at risk of physical harm or neglect with their other parent.”
h)Whilst both parents make significant allegations one against the other in terms of conflict and conduct that may amount to family violence as defined, these are preliminary interim proceedings where clearly findings of fact are difficult. However, it is of concern that the father sought counselling for anger management over an extended period and such is perhaps reflective that the mother’s assertion is as to his confrontational and intemperate behaviour may be correct. The ICL, in submissions, was concerned as to the significant allegations of violence relating to the father and his engagement in counselling intervention for anger management. However, a determinative factual finding awaits a final hearing when both parties can be tested on the evidence. There is no family violence order in place. However, by reason of the matters discussed above, the Court is satisfied that there are reasonable grounds to believe that the father has engaged in family violence [s 61DA(2)]. Thus the Court is not satisfied that the presumption of equal shared parental responsibility should apply. It is in the best interest of the children that at least until final hearing the mother hold parental responsibility for the children.
i)These are interim proceedings and clearly the Court is unable to make orders in this context that would lead to the institution of further proceedings.
Otherwise, the children remaining with the mother will facilitate their ready engagement in the preparation of a final report for hearing and it is to be expected that the mother will similarly commence property proceedings in this Court.

Parental responsibility

Both parties seek disparate orders in relation to parental responsibility particularly as to issues relating to education and primary health care.
There are factual matters in dispute as the circumstances within the parties’ household in the United States of America with allegations one against the other. But a determination as to same will need to await final hearing. As discussed above, the Court is satisfied that there are reasonable grounds to believe that the father, a parent, has engaged in family violence sufficient to displace the presumption as to equal shared parental responsibility.
Both parents are clearly aware of the long-term anxiety suffered by the child X and have historically facilitated the child’s engagement in appropriate intervention. The mother proposes to continue the child’s intervention in appropriate services in B Town and should the child reside with him the father proposes to do so in the United States of America.
A consideration of the matters discussed above as to the best interest considerations are clearly indicative of the children remaining in the mother’s primary care and living in B Town, New South Wales pending final hearing. Should there be an order at final hearing for the children to reside with the father in the United States of America, it appears that such orders are likely to be made at a time that would facilitate the children recommencing education in the United States of America at the beginning of the school year in September 2020.
Otherwise, it is appropriate to make orders to facilitate the children’s time with the father pending final hearing with such orders focusing on the father’s time with the children during New South Wales school holiday periods or during such other periods as he may be in New South Wales providing that he affords to the mother appropriate notice.

International Enforcement

Section 70M of the Act provides:
(1)This section applies if:
(a)a court in Australia makes, in relation to a child who is under 18:
(i)a parenting order, other than a child maintenance order; or
(ii)a State child order; and
(b)the order is enforceable in a prescribed overseas jurisdiction under provisions corresponding to Subdivision C.
(1A)This section also applies if:
(a)a court in Australia makes, in relation to a child who is under 18, an order under regulations made for the purposes of section 111B; and
(b)the order is enforceable in a convention country (within the meaning of those regulations) under provisions corresponding to Subdivision C.
(2)A person referred to in subsection (3) may, in writing, request the Registry Manager of the court to send to an appropriate court or authority in the overseas jurisdiction or convention country the documents and information necessary for securing the enforcement of the order in the overseas jurisdiction or convention country.
(3)A request under subsection (2) may be made by:
(a)a person with whom the child is supposed to live under the order; or
(aa)a person with whom the child is supposed to spend time under the order; or
(ab)a person with whom the child is supposed to have contact under the order; or
(b)a person who has a right to custody of, or of access to, the child under the order.
(4)The Registry Manager of the court must comply with a request under subsection (2).

Regulation 14 of the Family Law Regulations 1984 provides:
For the purposes of the definition of prescribed overseas jurisdiction in subsection 4(1) of the Act:
(a)each country or part of a country, set out in column 2 of an item in Schedule 1A is declared to be a prescribed overseas jurisdiction for the purposes of:
(i)subsection 4(1) of the Act, in relation to the definition of overseas child order ; and
(ii)sections 70M and 70N of the Act; and
(b)each country, or part of a country, set out in Schedule 2 as a reciprocating jurisdiction is declared to be a prescribed overseas jurisdiction for the purposes of:
(i)subsection 4(1) of the Act, in relation to the definition of overseas maintenance agreement ; and
(ii)paragraph 89(b) of the Act.
The various states of the United States of America are “prescribed overseas jurisdictions” for the purpose of s 70M: Schedule 1A to the Regulations.
During the course of argument at interim hearing it became apparent that in the event that orders were made by this Court, arrangements would need to be made for the orders to be registered in a competent court of jurisdiction in F State to ensure their enforcement in that jurisdiction.
With the consent of the parties, the Court has facilitated communication through this Court’s International Hague Judge through the International Hague Network of Judges Judicial Communications Protocol.
As a consequence communications through her Honour Justice Bennett on behalf of this Court were undertaken and a redacted copy of the judicial Communications were marked into evidence as Exh “P”.
The relevant advice received is as follows:
Since the case in F State would occur in H County, such orders would be handled in Department 2, H Country Superior Court, City H, F State USA. The Honorable Judge …, presiding. The registration of foreign orders is not an uncommon procedure. The process is described in the case of In Re Marriage of Malak (1986) 182 Cal.App. 3d 1018, 227 Cal.Rptr. 841. The F State Judicial Council form Fl-580 (Registration of Out of State Orders and form FL-105 Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) are used.
It is a fairly straightforward process and once accomplished, the F State Court will honor the Australian Court Order.
Accordingly, as submitted by the ICL, there will be a requirement prior to the children travelling to the United States of America for time with the father that he procure registration of these Court orders in accordance with the advice received and that upon confirmation of such registration the children will be free to travel to the United States of America to spend time with him. Otherwise, should the father move to another state from F State there will be similar requirements to register this Court’s orders in that new state prior to the children travelling to the United States of America.
Orders will be made accordingly.

I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 December 2019.

Associate:

Date: 12 December 2019