Director-General, Department of Communities (Child Safety Services) & Rolfston
[2010] FamCAFC 149
•19 August 2010
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & ROLFSTON | [2010] FamCAFC 149 |
| FAMILY LAW - APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – HABITUAL RESIDENCE – where the child travelled to Australia with the mother from the United States with the consent of the father – where the mother informed the father she did not intend to return with the child – where the parties subsequently reached a parenting agreement – where the trial judge dismissed the Central Authority’s application seeking the child’s return – whether the trial judge erred in finding the Central Authority had not discharged the onus of establishing the child was habitually resident in the United States at the relevant time – where the Central Authority submitted the only way the child could have lost her place of habitual residence was by a finding of acquiescence and that the test of acquiescence had not been satisfied – consideration of the concepts of acquiescence and habitual residence – whether the trial judge failed to place any or sufficient weight on the stated intentions of the father to have the child returned – whether the trial judge placed too much weight on the father’s desire for reconciliation with the mother – whether the trial judge erred in applying the factual nexus and reasoning of the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 – no merit in any ground of appeal – appeal dismissed. FAMILY LAW - APPEAL – COSTS – orders made for the filing of written submissions. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16(1), 16(1A) & 16(3)(a)(ii) |
| LK v Director-General, Department of Community Services (2009) 237 CLR 582 Re H (Abduction: Acquiescence) [1998] AC 72 |
| APPELLANT: | Director-General, Department of Communities (Child Safety Services) |
| RESPONDENT: | Ms Rolfston |
| FILE NUMBER: | BRC | 10566 | of | 2009 |
| APPEAL NUMBER: | NA | 54 | of | 2010 |
| DATE DELIVERED: | 19 August 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, O'Ryan and Strickland JJ |
| HEARING DATE: | 3 June 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 April 2010 |
| LOWER COURT MNC: | [2010] FamCA 264 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Parrott |
| SOLICITOR FOR THE APPELLANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | Mr Kent SC |
| SOLICITOR FOR THE RESPONDENT: | Barry & Nilsson Lawyers |
Orders
The appeal be dismissed.
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a)on behalf of the respondent within twenty-one [21] days hereof;
(b)on behalf of the appellant in response thereto within fourteen [14] days thereafter;
(c)on behalf of the respondent in reply thereto within seven [7] days thereafter; and
(d)that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the Director-General, Department of Communities (Child Safety Services) & Rolfston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 54 of 2010
File Number: BRC 10566 of 2009
| Director-General, Department of Communities (Child Safety) Services |
Appellant
And
| Ms Rolfston |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the Director-General, Department of Communities (Child Safety Services), acting as the State Central Authority for Queensland (“the Central Authority”) against orders made by Murphy J on 12 April 2010 dismissing the Central Authority’s application seeking the return of the child E born in September 2006 to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
By a Form 2 Application filed on 19 November 2009 the Central Authority, on behalf of Mr Rolfston (“the father”), submitted that the child had been wrongfully retained in Australia by Ms Rolfston (“the mother”) and sought the child’s return.
The mother seeks that the Central Authority’s appeal be dismissed.
Background
The mother was born in Australia and was aged 37 years at the time of trial. The father was born in Trinidad and Tobago and was aged 46 years at the time of trial. The father is a United States citizen and the mother has dual Australian/United States citizenship.
The parties married in February 1998 in Z in the United States, where they lived together until November 2008.
The parties’ daughter E was born in September 2006 in Z and was aged 3 years at the time of trial.
On 28 November 2008 the mother and child travelled to Australia (with the father’s consent) for what was said to be a six month holiday to stay with the child’s maternal grandmother. They were to return to the United States on 24 May 2009.
The mother says that there were also financial imperatives which led to this trip to Australia. For four months prior to the mother and child travelling to Australia the father was unemployed and apparently had no job prospects [Father’s affidavit, Appeal Book 44, para 6]. The father had filed for bankruptcy to erase $55,000 in credit card debts and if the wife and child were not living in the United States the father would also not be required to pay $1,400 per month in health insurance.
In February 2009 the mother invited the father to travel to Australia for a holiday at the expense of the maternal grandmother.
In February 2009 the child commenced attending M Infant School in Brisbane.
In March 2009 the father visited the mother and child in Australia, during which time (on 13 March 2009) the mother informed the father that she did not intend to return to the United States.
On 13 March 2009 the parties discussed their position with the Child Support Agency. On 8 May 2009 a Child Support Assessment was issued with respect to the period 18 March 2009 to 17 June 2010, with the care percentage of the father recorded as zero. [Appeal Book 122]
On 25 March 2009 the father returned to the United States. The mother and child remained in Australia.
Following the father’s return to the United States, there was significant communication between the parties, largely by email, regarding their intentions in relation to the residence and care of the child and a possible reconciliation attempt. These communications will be outlined in greater detail later in these reasons.
In May 2009 the parties commenced mediation with Ms B, a Z based matrimonial attorney and mediator. As a result of the mediation a parenting agreement was prepared. On 28 May 2009 the father signed the parenting agreement in the United States. The mother signed the agreement on 2 June 2009 in Australia.
On 12 June 2009 the mother signed an “Authority to the State of [Z]” seeking the “ratification of the Parenting Agreement… with the Family Court in [Z]…”. [See Appeal Book 115 at [27]]
On 30 June 2009 the father commenced proceedings in the Family Court of Z seeking custody and residence of the child.
On 23 September 2009 the father made an application to the United States Department of State under the Hague Convention on the Civil Aspects of International Child Abduction (“Child Abduction Convention”). On 1 October 2009 the father signed an Article 28 Statement authorising the Central Authority to act on his behalf.
On 18 November 2009 the father’s proceedings in the Family Court of Z were dismissed upon the basis that the court did not have jurisdiction to hear the parenting proceedings.
On 19 November 2009 the Central Authority filed a Form 2 Application Initiating Proceedings under the Family Law (Child Abduction Convention) Regulations 1986 in this Court, seeking that the child be returned to the United States.
On 27 November 2009 Bell J made interim orders, inter alia, restraining the mother from removing the child from Australia or changing her place of residence, placing the child on the airport watch list and requiring the mother to surrender her and the child’s passports.
On 23 December 2009 the mother filed a Form 2 Answer and Cross Application.
The trial was heard by Murphy J on 22 February 2010. His Honour delivered his reasons for judgment on 13 April 2010, dismissing the Central Authority’s application and discharging the orders made by Bell J on 27 November 2009.
The Family Law (Child Abduction Convention) Regulations 1986
The relevant regulations for the purpose of this appeal are regulations 16(1), 16(1A) and 16(3)(a)(ii), and they provide as follows:
(1) If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A) For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child's removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
…
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child's return:
...
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
Reasons for judgment of the trial judge
At trial the Central Authority, on behalf of the father, contended that the child had been wrongfully retained in Australia. The mother argued the child was not habitually resident in Z at the time of the alleged retention and that in any event the father consented to or acquiesced in the child remaining in Australia.
At the commencement of his Honour’s judgment he recorded that, over objection from senior counsel for the mother, he permitted the Central Authority after their case had closed to amend the date upon which wrongful retention was alleged to have occurred to 30 June 2009, as his Honour found the respondent was not unduly prejudiced by such an amendment. The date initially pleaded was 1 January 2009 but that had been amended at the commencement of the hearing to 24 May 2009.
The trial judge recorded that “the sole attack” on the required pre-requisites for the return of the child was whether the child was habitually resident in a Convention country immediately prior to the child’s retention in Australia.
His Honour was of the view that the mother’s arguments with respect to habitual residence and whether the father had consented to or acquiesced in the child’s retention in Australia were inter-related, both arising from the “course of conduct between the parties and what it has to say about their respective intentions and the legal position emanating therefrom.”
His Honour considered it vital to detail the chronology of events and to refer to the emails between the parties. For his Honour the starting point was the agreed position that the parties both consented to the mother and child coming to Australia for a six month holiday on 28 November 2008, to return on 24 May 2009. His Honour found that it was plain that at the time the mother and child left the United States to travel to Australia the parties’ relationship had difficulties.
His Honour then proceeded to outline the chronology of events following the mother and child’s arrival in Australia, including the father’s visit to Australia in March 2009 and their communications following the father’s return, under the headings of “Conduct 28 November 2008 to 31 March 2009”, “Conduct 1 April 2009 to 2 June 2009” and “2 June 2009 to 1 July 2009”. His Honour referred in detail to the communications between the parties, which were largely by email, evidencing the parties’ intentions regarding the care of the child, the parenting agreement and a possible reconciliation. His Honour also recorded email communications between the parties, and also the Mediator, between 16 June 2009 and 31 July 2009, after the parenting agreement had been signed.
The trial judge recorded that the father had commenced proceedings on 30 June 2009 in the Family Court of Z (and which were ultimately dismissed after that court found it did not have jurisdiction) before commencing the process seeking the child’s return under the Convention on 23 September 2009. It was not in issue at trial that if the child was returned to the United States the jurisdiction of the Family Court of Z would again be enlivened.
His Honour then outlined the provisions of the parenting agreement entered into by the parties. That agreement provided, inter alia, that in the event of any irreconcilable differences, the mother was able to live in Australia or Z with the child and the father may live in Z. The mother agreed to bring the child to Z to visit the father and the agreement set out a “visitation schedule”. It was recorded that from 2010 the child was to attend the M school in Australia. The full terms of the parenting agreement are recorded at Annexure A to these reasons.
The Central Authority submitted at trial that, despite the agreement, the parties were not ad idem, and that the parties had completely different understandings of the nature and effect of the agreement. The Central Authority submitted that the agreement was a “contingency plan” only. That contingency was that the mother was to return to Z with the child for a 60-day period to attempt reconciliation and only upon the failure of the reconciliation attempt would the father agree to the plan.
His Honour considered that the emails exchanged between the parties were central to the arguments advanced by each of them, and were also crucial to the mother’s argument that the child was no longer habitually resident in Z. Given this view, the trial judge proceeded to outline in some detail the email correspondence between the parties regarding their intentions and the proposed parenting agreement.
Having outlined the chronology of events and communications between the parties and the issues regarding the parenting agreement, the trial judge turned to the legal principles applicable to habitual residence, with detailed reference to the High Court’s decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582.
His Honour then set out his conclusions on habitual residence. Senior counsel for the mother had conceded that during the time the mother and child lived in Australia, the father harboured a “keen and sincere desire” to reconcile with the mother and reunite the family in Z. It was submitted, however, that by 13 March 2009 “the predominant intention of the mother had become clear”, and that was to live in Australia, although she left open the possibility of either reconciliation or living in the United States. It was further submitted that “there was an acceptance of the mother and the child living in Australia by 13 March in the sense that the father was resigned to that occurring if, at the end of 60 days, the parties could not patch up their differences and effect a reconciliation.” His Honour observed that “against that background” the mother and child had become a part of a wide community of family and friends in Australia and that the child was enrolled in pre-school and school for 2010, which the mother asserted was with the father’s consent. His Honour found it was clear the father was aware of the enrolment, as it was provided for in the parenting agreement signed by the father.
On behalf of the mother it was ultimately submitted that the child’s habitual residence in Z was lost by 13 March 2009, and “may have been lost” by 5 February 2009 when the father sent an email to the mother (outlined in further detail below) in which he told the mother “[d]on’t worry about coming back”, that he would file for divorce and would send the mother her things.
On behalf of the Central Authority, it was submitted that the entirety of the correspondence between the parties needed to be looked at, rather than any one “aspect”, and that the correspondence is “redolent of the parties being equivocal as to what [was] in their minds about where [E] (and the mother) would be residing.” It was contended that the last time the parties were of “one mind” was 28 November 2008 and that beyond that date the parties’ words and actions are “equivocal” and not indicative of any settled intention.
At paragraph 77 his Honour summarised what he considered the evidence revealed in the period between 1 March 2009 and 30 June 2009 as follows:
· The mother and [E] were in Australia after the father informed the mother (on 5.2.09) that she ought not return to the USA unless she could do so happily and that she should tell [E] that he “was dead”;
· The father visited Australia and during that visit (March 2009) the mother advised that she (and [E]) did not intend returning to the U.S;
· On 13 March the parties discussed child support and, on 8 May an assessment issued on the basis of a 0% care percentage by the father;
· Communications between the parties evidence a consistent desire by the father (after his 5 February email) for the parties to reconcile;
· [E] commenced at pre-school with the father’s consent and was enrolled at the same place for school in 2010;
· Communications from the mother evidence her return to the U.S. being (as far as she was concerned) conditional upon a reconciliation;
· In particular, the mother saw the Parenting Agreement as central to establishing her position in that respect;
· The Parenting Agreement evidences a clear intention on the part of the mother to live with [E] in Australia unless a reconciliation was effected consequent upon a visit by the mother to the U.S.
His Honour rejected the submission that the agreement was a “contingency only”, and that on the contrary the agreement was entered into because the mother had formed the intention to establish the child’s residence in Australia.
His Honour found that there were “overt manifestations” of the mother’s intention, namely the child’s enrolment in school, the position with respect to child support, the mother’s insistence on a parenting agreement consistent with the child remaining in Australia prior to any attempted reconciliation, and that the mother and child remained in Australia after the father returned to the United States following his visit.
His Honour was satisfied that since forming the intention to reside in Australia, the mother had “set about establishing important connections with Australia consistent with her [and [E]] establishing the centre of their lives here rather than in [the U.S].”
His Honour considered that the evidence was more “redolent of an ambivalence about reconciliation” than an ambiguity about her intention as to her and the child’s place of residence, but that it was not possible to say that the mother had a settled intention that “excluded the possibility of reconciliation”.
His Honour observed that it is the child’s habitual residence which is in issue and referred again to the decision of LK v Director-General, Department of Community Services and the comment by the High Court that “[t]he younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing”. His Honour concluded that in this case it was not sensible to speak of a three and a half year old child having a habitual residence distinct from that of her mother.
His Honour then found that the Central Authority had not “discharged the onus of establishing that (the child) was habitually resident in the United States as at 30 June 2009”.
Given this, his Honour concluded that it was not necessary to consider “the defence of consent or acquiescence”.
The application of the Central Authority was thus dismissed.
Grounds of Appeal
The Notice of Appeal filed by the Central Authority on 11 May 2010 contains the following grounds of appeal:
1. The Court erred in finding that the child’s place of habitual residence at all relevant times was Australia.
2. The Curt [sic] erred in finding that the unilateral declaration by the respondent was sufficient to alter the child’s place of habitual residence.
3. The Court erred in finding that the unilateral declaration by the Respondent was sufficient (without clear and unequivocal words or conduct amounting to an acceptance of that declaration on the part of the father) to alter the child’s place of habitual residence.
4. The Court erred in placing no or insufficient weight upon the stated intentions of the father to have the child returned to the USA.
5. The Court erred in placing too much weight on the father’s desire to reconcile the relationship with the mother.
6. The Courts’ analogous application of the factual nexus relied upon by the High Court of Australia in LK v Director-General, Department of Community Services together with the reasoning of that Court to the factual nexus in the instance matter was erroneous.
At the hearing of the appeal Mr Parrott for the Central Authority conceded that ground 1 was not phrased correctly, as the trial judge did not in fact make a formal finding that the child’s place of habitual residence was at all relevant times Australia. Mr Parrott submitted that “the corollary” of ground 1 is that the Court erred in finding that “the child was no longer habitually resident in the United States at the relevant times.”
The Central Authority seeks that the decision of Murphy J be “reversed”. The Central Authority also seeks orders that the child be returned to the United States and orders to facilitate such return.
Discussion
Unfortunately, it was difficult to follow the appellant’s outline of argument in support of the appeal because it did not comply with the Rules of Court in addressing seriatim the grounds of appeal. However, doing the best we can, it is apparent that the central complaint of the appellant is that the real issue here was in fact acquiescence, but the trial judge determined the application on the basis that the issue was habitual residence. The issue was acquiescence because, it is said, the only way there could be a change of habitual residence on the facts of this case was if the father acquiesced in the child remaining in Australia. However, the argument goes, the trial judge incorrectly proceeded on the basis that the mother could unilaterally change the place of residence, and that is what she did. In summary, as Mr Parrott said in his written outline, “in effect the court put the cart (habitual residence) before the horse (acquiescence)”.
Relating this submission to the grounds of appeal, ground 1 was in effect recast to say that his Honour erred in finding that the child was not habitually resident in the United States at the relevant time, namely 30 June 2009. Thus grounds 2 through 6 can be said to particularise how it is that his Honour erred in this regard.
Before turning to grounds 2 to 6 we need to say something further about ground 1.
It is important to point out that even as recast this ground does not address what the trial judge in fact did. In other words, the onus being on the appellant to establish that the child was habitually resident in the United States as at 30 June 2009, what his Honour found was that the appellant had not discharged that onus.
Next, to suggest that the trial judge erred in putting the cart before the horse, the appellant was also not accurately expressing the complaint. The fact of the matter is that under the Regulations the trial judge is obliged to first consider and determine the requirements of regulation 16(1A) because it is only if wrongful retention is established that it would become necessary to consider consent or acquiescence within the meaning of regulation 16(3), and this is precisely how the trial judge approached this case.
In these circumstances it seems to us that what the appellant is complaining of here is that in considering habitual residence the trial judge has proceeded on the basis that even where there is no settled purpose or intention between the parents as to the residence of the child there can still be a change of habitual residence, and that can even be brought about unilaterally by the mother. Instead, his Honour should have recognised that in the circumstances of this case the only way that this child could have “lost her place of habitual residence” was by a finding of acquiescence, and although his Honour considered what the father had said and done prior to 30 June 2009, those words and actions did not satisfy the recognised tests of acquiescence as outlined for example by the House of Lords in Re H (Abduction: Acquiescence) [1998] AC 72.
On the other hand, the respondent says that in these submissions the appellant has proceeded on a “fundamentally flawed approach (contrary to LK)”. In other words, there is no basis to import the requirements to establish acquiescence under regulation 16(3) into the process when looking at the intentions and actions of the parties for the purposes of deciding habitual residence.
Habitual residence and acquiescence in regulation 16(3) are distinct concepts. The onus of establishing the child’s habitual residence is on the Central Authority here, but the onus of establishing that a parent has acquiesced to the child’s removal or retention would be on the respondent. Further, the two concepts are actually looking at different periods of time. The relevant time for determining the child’s place of habitual residence is the date on which the wrongful retention is alleged to have occurred. With respect to acquiescence though, the period looked at is that following the child’s retention.
That said, it is of course true that in any given case the same facts or events may be relevant both to the determination of the child’s place of habitual residence and to whether there has been acquiescence to the child’s removal or retention. However, as is apparent from the High Court decision in LK v Director-General, Department of Community Services in considering a child’s place of habitual residence, the enquiry is not necessarily whether there is a settled and unequivocal intention on the part of the party who is looking to establish no change, as is the case with acquiescence, but rather there are a whole range of relevant matters to be considered of which the intentions of the parties are but one. And further, if it is necessary to examine the intentions of the parties, then “the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged” (LK v Director-General, Department of Community Services at [34]).
It is perhaps useful at this point to turn to the decision of the High Court in LK v Director-General, Department of Community Services.
Under the heading “Habitual residence” the High Court initially said this:
21. The expression ‘habitual residence’, and its cognate forms, have long been used in international conventions, particularly conventions associated with the work of the Hague Conference on Private International Law. Although the concept of habitual residence was used in a Hague Convention (on civil procedure) as long ago as 1896, and has since been frequently used in other Hague Conventions, none of those instruments has sought to define the term. Rather, as one author has put it, the expression has ‘repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts’. Thus the Explanatory Report commenting on the Abduction Convention said that ‘the notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile’. (Footnotes omitted, emphasis in original)
However, the High Court cautioned:
22. To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term ‘habitual residence’ is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
23. Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence. (Footnotes omitted, emphasis added)
The Court indicated that while examination of intention is required, intention should not be given controlling weight when considering habitual residence:
28. Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
…
32. … because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.
33. Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
34. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged. (Emphasis added)
Their Honours continued:
35. It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them. (Emphasis added)
If one of the complaints of the appellant is that the trial judge failed to have regard to the above principles then we agree with the submission of the respondent that that complaint cannot be maintained. We consider that the trial judge undertook a careful examination of all relevant circumstances in accordance with the principles of LK v Director-General, Department of Community Services in determining the question of habitual residence.
To assist in the understanding of the issues raised in this appeal though, we consider it important to set out in detail the chronology of the communications between the parties following the wife’s travel to Australia with the child.
To repeat, the mother travelled to Australia with the child on 28 November 2008. The first relevant email communication is on 20 January 2009 when the father wrote to the mother saying that “[t]he only reason I lost my temper last week … is the fear of not seeing you and [E] again … I love you eternally”. On 22 January 2009 the mother sent an email to the father in reply which ended with “[w]e love you very very much”. [Appeal Book 84]
On 5 February 2009 the father sent the following email to the mother [Appeal Book 203]:
Don’t bother buying me a ticket and wasting your mother’s money.
Don’t worry about coming back. If you don’t want to do so happily I don’t want you here.
Tell me what you want me to pack up and send you.
I’ll file the divorce papers and send them to you.Tell [E] her Father is dead.
On 14 February 2009 the father sent an email to the mother indicating that he had changed his mind, saying “I’ve given it a great deal of thought and I would love to come to Brisbane to spend a few quality weeks with you and [E].” [Appeal Book 204]
On 4 March 2009 the father wrote by email to the mother that “… I want more than anything for us to get back to the loving place that we had when we first met… Please source and secure reputable marriage councelor [sic] for us to meet with when I get there…” The father continued “I love you still and want to make this happen … I need you to work with me so we can raise [E] together so that she never has to be without one of us the way we were when we were growing up.” [Appeal Book 85]
Again, to repeat the father travelled to Australia in March 2009 and on 13 March 2009 the mother informed the father she did not intend to return to the United States. On the same date the mother and father met with the Child Support Agency, which resulted in the issuing of the assessment in May 2009 which recorded the father as having no care of the child.
On 31 March 2009, following his return to the United States, the father wrote in an email to the mother that he was on his way to an AA meeting and that:
I want very much for you and [E] to come back to me. Things will be better for us and I am committed to our family. Over the past thirteen years we have created a wonderful home, gave birth to [E] here and intended on raising her here and together. [Appeal Book 87]
Later that day the father sent a further email to the mother in which he outlined his proposed arrangements for E if she and the mother returned to the United States. The father also outlined his plans for the parties’ relationship, namely that he had found a therapy service for them to attend and would submit an application. The father said he was willing to put in writing that he would commit to three years of therapy with the mother, that he would put in writing that he would stay in AA or a rehabilitation program or outpatient therapy to “stay sober” and be there for the mother and E. The father ended the email by saying that “[t]his is the level of my serious commitment and love for you and [E]. Please come back to me. I am doing everything you want and [sic] willing to do more.” [Appeal Book 88]
In an email sent to the mother on 16 April 2009 the father said: [Appeal Book 89]
I will end this email the way I begin it. I love you and want to [sic] our marriage to work, but if it can’t I still need to be a part of [E]’s life. [E] will not reach her full potential without both parents being active participants in her daily life.
I want very much to make things right by us but, since you have not responded to my previous email and you have not told me when I will see my daughter next I am taking the advice of my lawyer in an effort to maintain my rights as a parent.
… If you don’t contact me by Sunday night informing me of when I can expect both of you to return I plan to go to [sic] Family Court, of the State of [Z] on Monday morning and file for sole custody of [E]… the U.S court system does not look kindly on the fact that you left the country on false pretences and have refused to return with our daughter.
You have left me no other choice.
I love you and want to [sic] our marriage to work…
On 29 April 2009 the mother wrote to the father:
Before we return end of May I would like to consult with a mediation service, for us to try and work out [sic] best arrangement for [E]’s future ( education, health and financial) and us as loving parents of our beautiful daughter… I know we can work this out.
The mother said she had found a mediation service (Ms B) and had made an appointment, indicating that she would dial in to the sessions with the mediator from Australia. [Appeal Book 90]
On 30 April 2009 the father responded: [Appeal Book 90]
What exactly do you want to work out [the mother]? “Arrangement?”
Do you want a divorce? That is the only reason these people are used….
… Why can’t you just come back now? Why do we have to wait until the end of the month? [E] has already forgotten me and every hour of every day that she is away from me is beyond painful --- I have never done anything like that to you.
Please call me.
On 14 May 2009 the father wrote to the mother: [Appeal Book 91]
… I will meet you and [E] at the airport. [E] has her room and you can have either the office or the bedroom, your choice. If you intend to spend money on a hotel that would be foolish and a waste when there is so much room here….
That said please understand that if you choose a hotel or friends place that [E] will be coming home with me since this is her home and her room is here.
I am looking forward to embracing you once again and will move mountains to make you happy. I promise you.
On 19 May 2009 the mother sent an email to the father in which she set out her requirements for the parenting agreement. The email commenced: [Appeal Book 221]
… I support the 60-day plan and have listed what we started in Aus [sic] before you became threatening, vindictive and me – terribly terribly terribly upset and insecure not knowing how to respond.
We must work very hard on a parenting plan because I feel this is the only option we have …
…
I KNOW WE CAN WORK THIS OUT
The mother then outlined matters she required be resolved prior to any return by her with the child:
1.I want a formalized plan in place with [the mediator] before we arrive.
2.If after 60 days in the United States during our next visit, we feel we CAN live as a couple, then a NEW plan will be drawn up and formalized with [the mediator].
3.After the threats made to me it is important for you to understand. I am a mother with a young toddler and should not be put in a situation EVER, where I do not feel safe and secure.
Formalizing the plan before I arrive will remove that constant worry.
4.The formalized parenting plan is also vitally important so you feel secure.
…
7.By traveling [sic] on a visit to the United States (and I called the CSA and Family Assistance to confirm) I am able to continue my benefits and will be covered medically while on travel. If I stay then I can easily cancel as long as I tell the CSA and Family Assist [sic] office.
The mother then outlined a number of steps that were to be taken as follows:
1. This week – Parenting Plan so I feel secure.
2. [The mediator] to formalize.
3.I will arrive and happily stay with you after plan formalized. (if we are not getting along then I need the option to stay with friends close by).
4.We will arrive and stay 60 days.
5.I am not sure we can get this plan finalized before Sunday -
6.We will ask [the mediator] how long it will take and reschedule flight accordingly. This is not to cause more upset it will only be rescheduled after we find out from [the mediator] how long it will take to formalize. My guess [sic] couple of weeks.
Finally the mother outlined the following:
IMPORTANT
7. If we feel after the 60-days we want to change the plan with [the mediator] to STAY we have the option
8. If we would like to return to Australia and DEFINATELY [sic] RETURN to the United States in (September/October) and then again in (December/January) for our (SCHEDULED) visits – we (WILL) do that with no problems at all.
9. Neither of us should ever feel we cannot travel freely between the two countries.
10. I have included the draft parenting plan below - very detailed and very important to me that you read through and not disregard it.
11. I am not taking your extremely important rights away as a father. I am trying to find a way that will afford us quality time with [E] and live DECENT Affordable lives.
12. I have attached the Aus [sic] plan for [the mediator] and one - (as I said we can change). Easy to change that then me worrying about my life …
On the same date the mother sent a further email to both the father and the mediator, Ms B, in which she outlined the above twelve steps. The mediator responded, indicating she could have a draft available in a couple of days, which could then be signed by the parties and advised that it would take about four weeks for the agreement to be formalised. [Appeal Book 224]
The next day, 20 May 2009, the father responded to the mother as follows:
[If] you took the things I said as threats I am sorry for that. When it comes to you thinking I’m being vindictive nothing could be further from the truth --- just last week I told [C] that all I want is for you to come back so I could show you how much you mean to me and that as far as I’m concerned and I quote “all is forgiven” from my view. I love you and I want to make it up to you very much.
Everything else you laid out here is fine. Please send to [the mediator] and tell her to draft it, call me and I’ll go to her office and sign it … (Emphasis added)
On 21 May 2009, the mother emailed the father that “[w]orking on flights… Are you ok to celebrate [E]’s birthday last week of August if we would like to return? Based on the 60 days from June to August.” [Appeal Book 92]. As his Honour found [Appeal Book 19], “[w]hilst not apparent on the face of that email, it is common ground that there were discussions between the parties about an arrangement that would see the mother return to the United States for a period of 60 days with a view to the parties discussing the potential for reconciliation and their parenting of [E] generally.”
On 22 May 2009 the mother wrote “[t]hese last couples of months have been – absolutely dreadful – beyond anything, imagined, we would ever go through. Everyday I tell [E] we are going on a plane to see daddy. We are very excited.” [Appeal Book 93]
As previously indicated, the father signed the parenting agreement on 28 May 2009 and the mother signed the agreement on 2 June 2009.
On 18 June 2009 the mother wrote in an email to the mediator and the father [Appeal Book 96]:
As discussed, after the plan has been formalized, I can finalize our travel.
…
Please let me know as soon as the parenting plan has been finalized through the family court, so we can work out travel.
Further, on 18 June 2009 the mother wrote to the father [Appeal Book 95]:
Please re read our communications, there is nothing said or written to come to the interpretation you have made.
I will travel once the document has been formalized.
The father responded on the same date [Appeal Book 228]:
I’ve signed the document already. I’m not ratifying it in family court, I’ve already stated why. At no point did you make your return conditional on this docuement [sic] --- you gave me 60 days --- it is the least you could extend to me after 11 years of marriage. There is nothing to ”fear” about coming home. As we discussed, if you come back and things don’t work out we part ways but there is nothing to fear. I want nothing more than to resolve our differences and as I have tolded [sic] you repeatadily [sic] I am willing and have made profound changes for you to make you happy.
On 19 June 2009 the father further wrote to the mother [Appeal Book 95]:
a) I was never made aware that the parenting plan which could easily be interpreted as a custody document (if I say its fine for you and [E] to live in Australia full time I”m [sic] obviously giving up custody) needed to be ratified in family court. I thought we were done once I signed the document in [the mediator’s] office. The purpose of this document is a contingency, an understanding that “if” we separate/divorce that is what we agree but we “haven’t” separated/divorced at this time
b) when I first mentioned going to family court and seeking sole custody it was something I never intended, it was meant to have you start communicating with me and come back so we could at least try to work things out but you are in affect [sic] doing what I had only threatened
c) making your return contingent on this document is not what we discussed recently, recently we agreed that you would return at the end of June and if after 60 days it didn’t work out that we would either get you a place in the city or if you absolutely had to because of money return to Australia --- but you promised me 60 days
…
I love you very much and can’t wait to prove it to you.
Please finalize your plans
There were a number of emails between the parties on 23 and 24 June 2009. The mother again said on 23 June 2009 [Appeal Book 98]:
I have not booked our travel for this weekend, and cannot until the parenting plan has been formalized.
…
You are most welcome to travel to Australia to visit - stay at Nanna’s or will find a place nearby in Brisbane until we can sort out our lives.
My priority is making sure [E]’s life is not disrupted - safe and protected.
The past 6 months and years preceding have been extremely difficult for both of us.
I would like to resolve the issues – will part take [sic] in conference calls with a therapist if that would help.
The father wrote on 24 June 2009 [AB 98]:
This is the sixth month of the year so already over a hundred days have passed when I, as I did tonight took a powerwalk…. and saw fathers playing with their daughters. My heart is ripped to shreds every time I see a man doting on his daughter and I think about my daughter 10,000 miles away from me and forgetting me as each day ends. As I have told you again and again and again and again and again Skyping only stabs me in the heart over and over – WHAT PART OF THAT DO YOU NOT UNDERSTAND – ALL OF THOSE YEARS YOU CRIED. You are there with [E] and I am not. What is so difficult for you to understand???...
I need to know that you are getting on the plane this weekend but you have given me no assurances. You are being horribly cruel to me […]…
His Honour in effect found that in light of this series of communications between the parties and the terms of the parenting agreement, the appellant had not discharged its onus of establishing that the child was habitually resident in the United States as at 30 June 2009. For our part, we consider that on the evidence that finding was entirely open, and thus his Honour has not erred in this regard.
Ground 2
This is a ground that simply cannot succeed. There was no finding by the trial judge “that the unilateral declaration by the respondent was sufficient to alter the child’s place of habitual residence”.
To repeat, what the trial judge did was to conclude that the Central Authority had not established that the child’s place of habitual residence was the United States at the relevant time after a consideration of all of the relevant evidence. This evidence included the mother’s and the father’s intention, largely evidenced through the communications between the parties, the child support arrangements reached, the parenting agreement entered into and the conduct and actions of the parties.
Thus there is no merit in this ground.
Ground 3
This ground is a replication of ground 2 and must suffer the same fate. Again, there was no finding by the trial judge as alleged.
Grounds 4 and 5
It is convenient to address these grounds together as they both relate to the father’s “intentions”.
As was amplified in the appellant’s oral submission the context of these complaints is the submission at paragraph 17 of the written outline, namely:
... that the proper enquiry in this application was for the court to consider through an examination of all of the evidence whether the parents had jointly determined that the child was no longer to be habitually resident in the USA. At the very least in the circumstances before the court it was necessary to find the father had acquiesced in the move.
Then paragraphs 18, 19 and 20 of the outline are as follows:
18. It is the respectful submission of the Central Authority that on the evidence at no time would it have been open to the court to conclude that the father had accepted that the child was now going to be habitually resident in Australia and indeed the Court so found at paragraph 77 (Appeal Book 31) the court stated:
‘Communications between the parties evidence a consistent desire by the father (after his 5 February email) for the parties to reconcile.’
19. It is this possibility of reconciliation that the court further relies upon when comparing this decision with the facts of LK. (See paragraph 77 (Appeal Book 31)). However the possibility of reconciliation was only one aspect of the communications between the parties, and was irrelevant to the issue of whether the father had accepted the stated declaration of change of habitual residence of the mother.
20. However the evidence went beyond this in that the father consistently expressed a desire that the child should return...
Now, as the respondent submits, and referring back to what we said commencing at paragraph 57 above, it is not a correct interpretation of the principles of LK v Director-General, Department of Community Services that there must be a “joint determination that the child was no longer to be habitually resident in the USA”. Indeed, in oral submissions the appellant’s counsel recognised this and he was at pains to point out that any suggestion that the only way to change habitual residence was via the “mutual agreement of both parents” was incorrect and was “inconsistent with all accepted authority on the point”, and thus this was not a submission that the appellant makes.
In any event, we do not accept that the trial judge placed no or insufficient weight on the father’s intentions. The trial judge set out in detail the communications by the father evidencing his intentions. Through those email communications the father can be seen to express a desire for the child (and the mother) to return to the United States. However, the email communications cannot be considered in isolation and they are not the sole evidence of the father’s intentions. Also relevant is the conduct of the parties (and particularly the father) including with respect to the child support arrangements, and the father’s conduct in returning to the United States leaving the child in Australia with the mother. The father also consented to the child attending pre-school and being enrolled to attend school in Australia. The most significant piece of evidence of the parties’ intentions though is the parenting agreement that they both entered into, and in which the father expressly agreed that in the event of “irreconcilable differences” the mother could live with the child in Australia.
Indeed, if the appellant’s submission as to what needs to be established for there to be a change of habitual residence is correct then that agreement clearly demonstrates the joint determination of the parties to do so.
At paragraph 77 [Appeal Book 31], one of the conclusions outlined by the trial judge was that “[c]ommunications between the parties evidence a consistent desire by the father (after his 5 February email) for the parties to reconcile”. As the High Court has made clear in LK v Director-General, Department of Community Services, the question of habitual residence will fall for decision in a very wide range of circumstances, that it is necessary to look at all the circumstances of the case and a broad factual enquiry is involved. The father’s hopes of reconciliation was one matter taken into consideration by the trial judge, and we do not consider that his Honour placed an inappropriate amount of weight on this desire for reconciliation such as to lead to appealable error.
To return to the parenting agreement, as senior counsel for the respondent said, the presence of the agreement is an “insurmountable hurdle” for the appellant. We agree with that, and we consider that the agreement is fatal to the submission of the appellant that his Honour erred in not being satisfied that the child was habitually resident in the United States as at 30 June 2009.
In submissions before us the appellant posed the question, “how did the child lose her place of habitual residence?” The answer is by the parents entering into the parenting agreement. No stated intentions of the father or desire to reconcile can derogate from the relevance and significance of the terms of this agreement.
The appellant, both before the trial judge and before us submitted that the agreement was “a contingency plan” only. The contingency was the mother travelling to Z with the child for a 60-day period to attempt a reconciliation and “it was only upon the failure of the reconciliation attempt that the father would agree to that proposed plan”. However, that is not consistent with a plain reading of the agreement itself or the email communications between the parties surrounding the preparation and signing of that agreement. There was no condition precedent to this effect in the agreement; there was no reference in the recitals to the agreement or in the terms of the agreement itself that the agreement was conditional upon any attempted reconciliation. Further, the agreement was not a temporary arrangement to facilitate an amicable arrangement. It put in place an arrangement into the future and beyond any attempted reconciliation. It was not an arrangement in the meantime.
As found by the trial judge, the communications by the mother evidenced a clear and consistent insistence by her that she would not travel to the United States or attempt a reconciliation until the agreement was finalised and formalised. The mother stated in her email to the father on 19 May 2009 that she wanted the agreement formalised before she arrived, and if they decided to reconcile, a new agreement would then be drawn up. Then significantly, in his email of 20 May 2009 the father said this, referring to what the mother had outlined in her email of 19 May 2009:
Everything else you laid out here is fine. Please send to [the mediator] and tell her to draft it, call me and I’ll go to her office and sign it...
It was suggested to the trial judge and to us by the appellant that the parties were, despite the agreement, never ad idem, and that they had completely different understandings of the nature of and effect of the agreement. However, his Honour rejected that submission given the unequivocal terms of the agreement and the surrounding emails passing between the parties, and we can find no error in this approach by his Honour.
We do not consider that there is any merit in these grounds of appeal.
Ground 6
Finally, the Central Authority submits that the trial judge erred in the application of the factual nexus and the High Court’s reasoning based on that factual nexus in the decision of LK v Director-General, Department of Community Services.
The trial judge referred to the legal principles emanating from the High Court’s decision in LK v Director-General, Department of Community Services commencing at paragraph 61 of the judgment.
The Central Authority in particular refers to the trial judge’s findings which were linked to the reasoning in LK v Director-General, Department of Community Services at paragraph 80 and 81 as follows:
80. I consider that the mother has, since forming the intention that [E] (and she) should reside here rather than in the U.S., “set about establishing important connections with Australia consistent with her [and [E]] establishing the centre of their lives here rather than in [the U.S.].” (LK at para 30).
81. I would assess the evidence here as being more redolent of an ambivalence about reconciliation with the father rather than an ambiguity about her intention as to her (and [E]’s) place of residence. However described, here, as in LK, I do not think that it is possible to say that the mother had a settled intention that “excluded the possibility of reconciliation”. Yet, I very much have in mind that:
… in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. (LK at para 30)
In paragraph 82 his Honour continued with reference to the decision in LK v Director-General, Department of Community Services:
82. I should also mention that I am very much aware that it is, of course, [E]’s habitual residence which is in issue. But, as the High Court said in LK (at para 27): “The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.”
The Central Authority contended that it was not open to the trial judge to draw the comparisons he did between the decision of LK v Director-General, Department of Community Services and this case, and that the two cases are not of “all fours”, with reference to the relevant facts in LK v Director-General, Department of Community Services.
As submitted by senior counsel for the mother [summary at [5.1]], there are clear analogies that can be drawn between the cases, but what was important was the trial judge’s distillation of the principles from LK v Director-General, Department of Community Services as they applied to the current case. We do not accept that the trial judge inappropriately applied the factual nexus or reasoning from that case. It has not been established that the trial judge fell into appealable error by his reference to or application of the principles of the High Court’s decision in LK v Director-General, Department of Community Services. Thus there is no merit in this ground of appeal.
Conclusion
We are not satisfied that the trial judge erred in concluding that the applicant had failed to discharge its onus of establishing that the child was habitually resident in the United States at the relevant time. In light of the entirety of the evidence, namely the actions and intentions of the parties, the email communications, the child support arrangements reached and importantly the parenting agreement entered into between the parties providing for the child to be able to live in Australia with the mother, we consider that it was open to his Honour to so determine. There being no merit in any ground of appeal, the appeal will accordingly be dismissed.
Costs
In the event that the appeal was unsuccessful the appellant submitted that there should be no order for costs in favour of the respondent.
Senior counsel for the respondent though sought to reserve his position on costs pending the delivery of our reasons for judgment.
In these circumstances we propose to make orders providing for the filing of written submissions with regard to the costs of the appeal.
I certify that the preceding one hundred and fifteen [115] paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 August 2010.
Associate:
Date: 19 August 2010
Annexure A
PARENTING AGREEMENT, made this 2 day of June 2009, by and between [Ms Rolfston] (the “Mother”), residing at […] Brisbane, Australia […] and [Mr Rolfston] (the “Father”), residing at […] Apartment […], [Z].
RECITALS
A.The parties were married on February […], 1998 in [Z], and ever since then have been and now are Husband and Wife.
B.There is one child of the marriage, namely, [E] born on September […], 2006 (the Child).
C.The parties desire that this Parenting Agreement, which is entered into after due and considered deliberation, shall be and constitute an agreement which defines certain rights with respect to their daughter.
D.The Mother has been living in Australia with the child since November, 2008 and the Father has been living in [Z].
E.The CSA (Australian Government Child Support Agency) has calculated the Father’s current income and decided and advised that the Father is responsible for paying annual child support. The CSA will assess the Father’s income each year and calculate support accordingly.
F.The parties agree that the annual calculated child support amount shall be used towards airfares for the child to fly to the United States to visit with the Father.
G.The Mother will be responsible for all the child’s living, educational, extra-curricular and private medical costs.
NOW, THEREFORE, in consideration of the promises and the mutual undertakings herein contained, the parties mutually agree as follows:
I. Parenting Time Schedule:
A.In the event of any irreconcilable differences, the Mother may live either in Australia or [Z] with the child. The Father may live in [Z].
B.The Mother agrees to bring the parties’ daughter to [Z] to visit with her Father. The visitation schedule is below (see No. II A)
C.The Father agrees to cover the daughter’s airfare and travel insurance for all visits.
D.The parties agree the preferred carrier is Quantas [sic] or Virgin Airlines, with the most direct route between the United States and Australia. The parties agree the Mother shall make the arrangements for their daughter to fly to the United States or another agreed upon destination between the parties in accordance with the Father’s visitation schedule.
E.The parties’ daughter currently attends the [M] infant school and child care part-time in Australia, and in 2010, she shall attend the [M] School full-time.
II.2009 Visitation Schedule:
A.Based on the following 2009 dates listed on the Australian school holiday website, The [sic] Mother and child shall visit with the Father in the United Stated as follows in 2009:
1. (JUNE JULY)- SATURDAY JUNE 27 TO MONDAY JULY 13
2. (SEPTEMBER OCTOBER) - SATURDAY SEP 19 TO SUN OCTOBER 4
3. (DECEMBER JANUARY) - SATURDAY DEC 12 TO SUNDAY JAN 24
…
B.The child’s birthday is September […]. If the school allows, the Mother and child may travel to the United States earlier to celebrate the child’s birthday in the United States on her actual birthday, or else celebrate during the September school holiday period.
C.The Father may visit the child in Australia as often as he is able to with prior written notice to the Mother.
III.Future Annual Visiting in United States:
A.A schedule shall be submitted in writing via email between the Father and the Mother by each August for the following year, and confirmed by booking three months prior to travel. If changes need to be made to flights, change fees need to be taken into consideration. The visits shall be scheduled according to the Australian school holiday schedule mentioned above.
B.Travel and medical insurance will be purchased through Medibank private or airline’s preferred insurance in Australia by the Mother.
IV.California Visits:
If the Father has any business meetings or social time in California, for example; with (current retainer client) – The Mother can arrange flights with the daughter to meet with the father in California, in lieu of [Z] as the travel from Brisbane to the United States west coast can be achieved with shorter notice and reasonable cost.
V.Accommodation During Visits:
A.The Mother shall accompany the daughter on travel to and from the United States and other destinations to meet the Father until the age of twelve of the child and/or when the child feels comfortable traveling by herself.
B.The Mother and daughter shall have the option to stay with the Father at [his apartment], (or at another address, if he moves) or at a hotel, with a friend or to rent a furnished short term apartment, a reasonable distance from the Father’s home during the Father’s visits with the child in the United States.
VI.Primary Residence:
The parties agree that the child shall primarily reside with the Mother, [Ms Rolfston].
VII.Changes to Schedule:
The parties agree any schedule for sharing time with the child may be changed as long as both parents agree to the changes ahead of time in writing.
VIII.Makeup of Missed Parenting Time:
The Parties agree only substantial medical reasons will be considered sufficient for postponement of parenting time. If the Child or Mother is ill and the child is therefore unable to spend time with a parent, makeup parenting time will be scheduled. If a parent fails to have the child during their scheduled parenting time for any other reason, there will be no makeup of parenting time unless the parties agree otherwise in writing.
IX.Permanent Changes to Schedule:
The parties agree after this Parenting Plan is finalized, any changes the parties agree on can be made only by mediation, which must be first attempted, and then by applying to a court and proving that there has been a “change in circumstance.” Before applying to the court, the parties understand that they will try to agree to resolve any dispute through mediation or other means.
X.Major Decisions:
A.Major decisions include, but are not limited to, decisions about the Child’s education, non-emergency healthcare, religious training, and extracurricular activities.
B.The Mother agrees to always consult with the Father prior to making major decisions.
XI.Information Sharing:
The parties agree both parents are entitled to important information regarding their child, Including, [sic] but not limited to, the child’s current address and telephone number, education, medical, governmental agency, psychological and law enforcement records. Information about the child’s progress in school and any school activity shall be equally available to both parents. Both parents may consult with school staff concerning the child’s welfare and education. Both parents will immediately notify each other regarding any emergency circumstances or substantial changes in the health of the child. Both parents will provide each other with contact numbers and addresses and will notify each other of any change in that information within 72 hours of such a change. If either parent travels with the child from their usual place of residence, they will provide the other parent with an emergency contact phone number.
XII.Parent – Child Communication:
The parties agree that both parents and child shall have the right to communicate by telephone, in writing, by e-mail and computer conference during reasonable hours without interference or monitoring by the other parent.
XIII.Mutual Respect:
The parties agree neither parent will not say things or knowingly allow others to say things in the presence of the child that would interfere with the child’s love and respect for the other parent.
XIV.Notices:
All notices or other communications by either party required under this Agreement, shall be in writing and sent to the other party by certified mail, return receipt requested, addressed to the other party at the address set forth at the beginning of this Agreement, unless such party shall give notice of a change of his or her address by like certified mail.
XV.Mediation:
This agreement has been arrived at by the parties through mediation with [Ms B] as mediator. The parties will share the costs of this mediation.
XVI.Order:
The parties agree this document shall be formalized in the State of [Z].
XVII.Signing:
Each of the parties has read this Agreement carefully and understood and is signing it freely and voluntarily and with full knowledge prior to the signing thereof. The parties will both sign all documents necessary to implement the terms of this agreement.
IN WITNESS WHEREOF, the parties have signed and acknowledged this Agreement.
[Signed the mother]
[Signed the father]
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