Gutierrez & Sujatha - [2024] FedCFamC1F 421

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gutierrez & Sujatha [2024] FedCFamC1F 421

File number(s): ADC 1047 of 2022

Judgment of: BERMAN J

Date of judgment: 28 June 2024

Catchwords:
FAMILY LAW – CHILDREN – International relocation – Where the mother considers relocation was temporary, but the father intended to relocate permanently – Best interests – Where the children are settled in Australia – Where the parties acknowledge the children have a meaningful relationship with each parent – Consideration of the impact on transitioning back to the USA – Where the children cannot fully comprehend the consequences of relocation – Consideration of the psychological impact on the mother staying in Australia – Travel costs – Where a lack of evidence was presented as to the parties’ ability to financially support travel – Consideration of the mother’s visa – Submissions made that the mother’s uncertain immigration status is not a determinative factor in the proceedings – Where the Court considers the best interests of the children will be served by remaining in Australia until 2026 – Relocation then permitted subject to the children’s wishes.

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Consideration of configuration of time spending – Where the children currently spend each alternate day with each party – Where the father seeks for time spending to be in a block – Where the mother seeks to retain the current arrangements – Consideration of the impractical nature and unnecessary handovers – Where the parties have a poor coparenting relationship – Where the report writer supports block time spending – No evidence that supports a retention of the mother’s proposal – Orders for block time spending.

Legislation: Family Law Act 1975 (Cth) Div 12A, ss 60B, 60CA, 60CC, 61DA, 69ZT

Cases cited:
AMS v AIF [1999] HCA 26

Starr & Duggan [2009] FamCAFC 115

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 307

Date of hearing: 12, 13, 15 and 20 March 2024

Place: Adelaide

Counsel for the Applicant: Ms Miller

Solicitor for the Applicant: Andersons Solicitors

Counsel for the Respondent: Mr Anderson

Solicitor for the Respondent: Resolve Divorce Lawyers

ORDERS

ADC 1047 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GUTIERREZ

Applicant

AND:
MS SUJATHA

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

28 JUNE 2024

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for X born 2010 and Y born 2015 (collectively “the children”).
2.Subject to the wishes of the children (or each of them) and no sooner than 1 June 2026 and on not less than three (3) months written notice, Ms Sujatha (“the mother”), be at liberty to relocate with the children to City B, State C, United States of America (“the USA”) on the following conditions:
2.1That as from the date of this order, the mother shall do all necessary acts and things to inform Mr Gutierrez (“the father”) and keep him informed in writing in relation to the following:
2.1.1her projected departure date with the children;
2.1.2any arrangements made by her in relation to the children’s school enrolments; and
2.1.3details of the children’s residential address, contact phone number and email address in City B, State C.

3.Pending the mother’s relocation to the USA with the children:
3.1 The children shall live with the parties as follows:
3.1.1In week 1 and each alternate week thereafter:
3.1.1.1With the father from the conclusion of school on Friday (or 3.30 pm if a non-school day) until the commencement of school on Monday (or 9.00 am if a non-school day) commencing 5 July 2024; and
3.1.1.2With the mother at all other times.

3.1.2In week 2 and each alternate week thereafter:
3.1.2.1With the father from 4.00 pm on Sunday until the commencement of school on Wednesday (or 9.00 am if a non-school day) commencing 10 July 2024; and
3.1.2.2With the mother at all other times.

3.2Notwithstanding the above and unless otherwise agreed between the parties in writing, the parties shall spend time with the children on special occasions and school holidays as follows:
3.2.1During all short mid-term school holiday periods:
3.2.1.1With the father from the conclusion of school on the last day of each school term until 3.00 pm on the middle Saturday of the school holidays; and
3.2.1.2With the mother at all other times.

3.2.2During all long end-of-year school holiday periods:
3.2.2.1With the father each alternate week from 3.00 pm on Friday until 3.00 pm on the following Friday commencing on the last day of school term; and
3.2.2.2With the mother at all other times.

3.2.3During the Christmas period as follows and NOTING THAT this order shall take precedents over paragraph 3.2.2 of these orders to the extent of any inconsistency:
3.2.3.1With the mother from 12.00 noon on 21 December until 12.00 noon on Christmas Day (25 December); and
3.2.3.2With the father from 12.00 noon on Christmas Day (25 December) until 12.00 noon on 29 December.

3.2.4With the mother on Mother’s Day each year from 6.00 pm on the day before Mother’s Day to the commencement of school (or 9.30 am if a non-school day) on the Monday after Mother’s Day.
3.2.5With the father on Father’s Day each year from 6.00 pm on the day before Father’s Day to the commencement of school (or 9.30 am if a non-school day) on the Monday after Father’s Day.
3.2.6During the Easter period at such dates and times to be agreed between the parties in writing and failing an agreement, as follows NOTING THAT this order shall take precedence over other orders to the extent of any inconsistency:
3.2.6.1With the father in 2024 and each alternate year thereafter from 10.00 am on Maundy Thursday to 10.00 am on Easter Saturday;
3.2.6.2With the mother in 2024 and each alternate year thereafter from 10.00 am on Easter Saturday until 5.00 pm on Easter Monday;
3.2.6.3With the mother in 2025 and each alternate year thereafter from 10.00 am on Maundy Thursday until 10.00 am on Easter Saturday; and
3.2.6.4With the Father in 2025 and each alternate year thereafter from 10.00 am on Easter Saturday until 5.00 pm Easter Monday.

3.3The parties be at liberty to travel:
3.3.1Interstate with the children during any period that the children are in their care.
3.3.2Internationally with the children (including to the USA) for a period of up to three (3) weeks (inclusive of travel time) on two (2) occasions per calendar year on the conditions that:
3.3.2.1At least three (3) months prior to the expected travel date, the travelling parent shall provide to the non-travelling parent details of the children’s travel arrangements including:
3.3.2.1.1an itinerary, flights and accommodation;
3.3.2.1.2contact details, including emergency contact details; and
3.3.2.1.3confirmation of return flights for the children to Australia.

3.3.2.2The travelling parent do facilitate the non-travelling communicating with the children via telephone or video chat on at least two (2) occasions per week at such times to be agreed between the parties and failing agreement at 5.00 pm on Monday and Thursday (local time to the children).

3.4Unless otherwise agreed between the parties, all handovers that do not occur at the children’s school or extra-curricular activity shall occur with the father collecting the children from the mother’s residence at the commencement of his time with the children and with the mother collecting the children from the father’s residence at the conclusion of his time with the children.

4.In the event the mother relocates to City B, State C, United States of America after 1 June 2026:
4.1 The children shall live with the mother.
4.2 The children shall spend time with the father as follows:
4.2.1In the USA for a period of four (4) weeks to coincide with the USA Christmas school holiday period on such dates to be agreed between the parties in writing and on the following conditions:
4.2.1.1That the father provide the mother with eight (8) weeks’ notice of his proposed date of travel;
4.2.1.2The travel expenses associated with the father travelling to the USA and returning to Australia shall be borne by the father; and
4.2.1.3The father shall facilitate the children speaking to the mother each alternate day when the children are in his care.

4.2.2That the mother shall facilitate the father speaking to the children by Skype, Facetime or telephone on not less than one (1) occasion in each week other than if the children are in his care.

5.Notwithstanding any other order herein, if the children are in the USA they shall spend time with the parties for Christmas as follows:
5.1In odd numbered years with the mother from 12.00 noon on 24 December until 12.00 noon on 25 December and with the father from 12.00 noon on 25 December until 12.00 noon on 26 December; and
5.2In even numbered years with the father from 12.00 noon on 24 December until 12 noon on 25 December and with the mother from 12.00 noon on 25 December until 12 noon on 26 December.

6.At such further and other times as agreed between the parties including any further period that the father travels to the USA or the mother travels to Australia with the parties to provide one another with at least four (4) weeks’ notice in the event they intend to travel at times outside of those which are provided by these orders.
7.The parties shall communicate by way of email as the primary form of communication with respect of information relating to the children except in the case of emergency or urgency when such communication shall occur via SMS.
8.Each party shall keep the other informed of:
8.1Their current residential address, mobile and landline telephone numbers and any available email address and advise the other parent of any change thereto within seven (7) days of such change (except as otherwise provided herein); and
8.2Any serious illness, accident or incident involving the children including any medications prescribed or recommended by any health practitioner for the children, with each party to be at liberty to visit during any periods when the children may be hospitalised.

9.The parties shall ensure that the children each have valid USA and, if eligible, Australian passports at all times and the parties shall do all things, including providing the other party with any of the children’s original documents required for the purpose of renewing the children’s passport and sign all documents necessary to obtain a passport at the parties joint and equal expense and for the purpose of this paragraph:
9.1The passport(s) for X shall remain in the father’s possession at all times, except in circumstances where the children are travelling with the mother; and
9.2The passport(s) for Y shall remain in the mother’s possession at all times, except in the circumstances where the children are travelling with the father; PROVIDED THAT if the children relocate to USA after 1 June 2026 the mother shall retain and hold all passports.

10.In the event that either party is travelling internationally with the children, then the non‑travelling party shall provide the travelling party with the children’s passports no later than seven (7) days prior to the intended travel and the passports shall then be returned to the relevant party immediately upon the children’s return and no later than three (3) days of immediate return.
11.The costs of the renewal of passports shall be met equally by the parties.
12.The parties shall provide the documents necessary and/or sign the documents necessary to obtain a USA passport for the children within seven (7) days of any request by the other party.
13.Both parties shall do all things necessary and execute all documents as may be required to obtain Australian passports for the children upon meeting the eligibility criteria at the equal shared costs of the parties.
14.The parties shall each complete and sign the form 1229 – Consent form to grant an Australian Visa to a child under the age of 18 years and do all other things necessary and sign all necessary documents to apply for and obtain permanent residency status and Australian Citizenship, when eligible, for and on behalf of the children in a timely and cost-effective manner.
15.The parties shall each do all things necessary and sign all documents required to register this order in State C, USA.
16.Paragraph 4 herein is conditional on the mother serving on the father documentary proof that she has:
16.1Obtained from a Court of competent jurisdiction in State C, USA recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measure for the Protection of Children, signed at the Hague on 19 October 1996 (“the Child Protection Convention”) of the orders of the Federal Circuit and Family Court of Australia Division 1 made in these proceedings; or
16.2Obtained from a Court of competent jurisdiction in State C, USA a Declaration of Enforceability in State C, USA pursuant to Article 26 of the said Child Protection Convention of the orders made in the Family Court of Australia and these orders; or
16.3Registered in a Court of competent jurisdiction in State C, USA pursuant to Article 26 of the Child Protection Convention, the orders of the Federal Circuit and Family Court of Australia Division 1 orders, she will be entitled to remove the children from Australia at the expiration of seven (7) days from the date upon which the documentary proof has been served on the father but in any event not before 1 June 2026.

17.The order placing the children on the Airport Watch List be discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION

Mr Gutierrez (“the father”) and Ms Sujatha (“the mother") are the parents of X born 2010 and Y born 2015 (collectively “the children”).
The parties are unable to agree to parenting arrangements for the children and of importance, where the children should live. The mother seeks an order that the children be permitted to relocate to the United States of America (“USA”) which is opposed by the father.
The parties are also no longer in agreement as to what the time spending regiment should be in effect. In late 2021, the parties obtained a divorce decree in the Court of State C (“the divorce decree”) which sets out the time spending arrangements. Since the divorce decree came into effect, the parties have followed that order notwithstanding that it has not been registered in Australia and is therefore, unenforceable. The father considers that the current time spending regiment is no longer tenable in circumstances where there are six handovers each week and as such, he seeks to amend the same.
By Further Amended Initiating application sealed 5 December 2023, the father seeks final orders that the parties have equal shared parental responsibility and that the children live with the parties equally. The father proposes that the children spend four nights with him in the first week and three nights with him in the second week.
In the event that the Court permits the children to relocate to USA with the mother, the father proposes orders that relocation occur not before 1 June 2026 following which the children live with the mother and spend up to 20 weeks each year with the father.
By Amended Response to Initiating Application sealed 16 February 2024, the mother seeks orders that she be permitted to relocate the children’s primary place of residence to the USA on or before 25 April 2024, that she have sole parental responsibility and that the children live with her.
In the event that the father remains in Australia, she proposes that the children spend three weeks with the father in Australia provided that the father pay for the children’s travel fees and the mother be available to accompany the children. She further proposes that the father spend four weeks with the children in the USA over the Christmas period. In the event that the father relocates to the USA, the mother’s proposal is that time spending continue in accordance with the divorce decree.
The mother proposes further alternative orders in the event that the Court declines to make orders permitting the children to relocate namely, that she have sole parental responsibility, the children live with her and spends three nights each week with the father however, she opposes that the father’s time with the children be consolidated into a block of time. Additionally, she seeks extensive orders pertaining to overseas travel.
BACKGROUND
The father was born in 1973 in the USA. At present, he is employed on a full-time basis as a manager.
The mother was born in in the USA. She is currently employed as an educator at a school and works four days per week.
The parties met in State C, USA and commenced cohabitation in about mid-2001. They were married in mid-2003 in State C, USA and separated on a final basis on 10 January 2018. In late 2021 the parties obtained a divorce decree in the Court of State C (“the divorce decree”). The divorce decree dealt with both parenting and property matters.
There are two children of the relationship namely, X, aged 13 and Y, aged 9. Both children were born in State C, USA.
In between separation and obtaining the divorce decree, the parties attended several mediation conferences and in December 2018, the parties reached agreement with respect to various parenting arrangements including, that the children spend overnight time with the father each Monday, Thursday and Saturday and with the mother each Tuesday, Wednesday, Friday and Sunday. This agreement was drafted into a parenting plan and eventually became the divorce decree which to date, the parties have complied with.
Shortly after separation, the mother commenced a relationship with Mr D and in or around mid-2018, she and the children moved into Mr D’s home in City B.
Prior to separation, in approximately late 2015, the parties commenced discussions about moving to Australia and in late 2015, the parties and the children travelled to Australia for a holiday. It was during this holiday that the father considers the parties agreed to relocate to Australia.
In early 2016 the father commenced looking for employment opportunities in Australia and started considering visa options. In mid-2016, the parties engaged the services of Ms E of F Agency (“the migration agent”) to commence the visa application process. In early 2017 the parties applied for a permanent Visa and were ultimately unsuccessful. However, in late 2017, the parties applied for a temporary Visa and in early 2018, the visa was granted.

The parties’ migration agent advised them that a temporary visa was easier to obtain and that the application process for permanent residency would be “simple” once they were granted a temporary Visa and could show that they lived in South Australia for two years and worked on a full-time basis for one year.
The mother was the primary visa holder having been granted a visa in respect of her abilities. The father, being the secondary visa holder, was unable to live or work in Australia without the mother’s consent and he was unable to advance to permanent residency without the collaboration or consent of the primary visa holder, being the mother.
However, between applying for and the granting of the visa, the parties separated. Notwithstanding the separation, the parties moved to Australia with the children although there is disagreement as to whether the move was intended to be permanent or temporary.
The father considers that there was a mutual agreement to permanently relocate to Australia and that Mr D also planned on relocating and living with the mother. The mother considers that she was hesitant to agree to the move and considered it to be temporary and only for a short period of time.
Notwithstanding the foregoing, in late 2018, the parties, the children and Mr D travelled to Australia to ratify their visas.
In early 2019, the parties’ sold the City B property and resolved property matters. The father was unable to find suitable accommodation in City B and in or about mid-2019, the father informed the mother that he wanted to relocate to Australia sooner rather than later.
The parties met on several occasions between July and September 2019 to discuss relocation. The mother agreed to travelling to Australia with the children on various conditions including that Mr D was also able to relocate, the father financially support the mother, the parties maintain a “collaborative spirit to the adventure” and that in the event of any disagreement, the mother was able to return to the USA with the children.
The parties agreed that the father would travel to Australia first to obtain employment, find a place to live and set up the children’s personal belongings together with the parties’ furniture. They further agreed that the mother and children would arrive in Adelaide in approximately late 2019 which would allow for sufficient time for the children to settle before commencing school in January 2020.
The father arrived in Australia in late 2019 and commenced working in transport whilst he searched for more permanent employment. In late 2019, the father obtained other employment.
For the first two months the father resided in an AirBnB and in late 2019 the father acquired a rental property. Shortly thereafter, a shipping container of the father and the children’s belongings arrived.
The mother contacted the father in late 2019 and indicated initially, her hesitation, and ultimately, her desire to remain in the USA with the children in circumstances where Mr D no longer wanted to relocate. The parties do not agree as to what conditions, if any, the mother imposed in order to facilitate the relocation with the children however the mother considers that it was her intention that she and the children only spend a few months in Australia.
Ultimately, in early 2020 the mother informed the father that she had purchased airfares and a short time later, the mother and the children arrived in Australia and moved into the father’s rental property. Mr D intended to arrive in Australia within two months following the conclusion of his employment in the USA.
In early 2020, X commenced attending G School and Y commenced kindergarten at J School. Some weeks later, as a result of the Covid-19 pandemic, the Australian Government closed its borders to all non-Australian residents with 24 hours’ notice - the effect being that Mr D was unable to travel to Australia.
In early 2020, the Australian government changed the conditions for the parties’ visa such that if either party left Australia they would not be permitted to re-enter. Again, whilst it is in dispute as to the reason why the parties remained in Australia, ultimately, they did.
The mother obtained causal employment in or about mid-2020 however, her income was limited and it was agreed that the father would continue to financially support her and the children.
The parties’ and the children remained living together for 16 months however by mid-2021, their co-parenting relationship had disintegrated, and the living arrangements were no longer tenable. The mother obtained temporary accommodation in June and in August 2021 she had secured a rental property in Suburb H, being the property that she currently resides in. The mother’s rental property is a five-minute drive from the father’s rental property and is in close proximity to the children’s school.
Upon the mother reaccommodating in June 2021, the parties agreed to reinstate the care arrangements as set out in the parenting plan. Towards the end of 2021, the mother considered that it was more appropriate for the father collect the children from the mother’s home at 5.15 pm instead of from the conclusion of school. As a result of the change, the parties came into contact with each other more frequently and the children were subjected to six handovers each week.
The mother considers that it was in or about August 2021 that she commenced asking the father to agree for the children to return to the USA and making requests for the children and her to be allowed to travel to the USA for a holiday and/ or to visit friends and family which was not agreed to by the father.
In late 2021, the children and the mother travelled to State K to renew their passports and have a holiday. They were met in State K by Mr D where they spent approximately two weeks. Upon their return to Australia in early 2022, the mother told the father that she intended to return to the USA with the children in a short time later noting that the visas were due to expire in early 2022.
Proceedings were commenced by the father on 11 March 2022 in circumstances where the father asserts his concerns that the mother was a flight risk, were increasing.
On 13 April 2022, an order was made placing the children’s names on the airport watchlist and restraining the mother from removing the children from Australia. Notwithstanding the order, the father was learned from reading an earlier affidavit deposed by the mother that in early 2022 she purchased airfares to the USA for her and the children to attend a relative’s memorial. The father was unaware, nor consented to, the mother travelling to the USA with the children until he read about the same in the affidavit. As a result of the airport watchlist order, the mother and the children were stopped in Sydney airport and returned to Adelaide.
Aside from the dispute as to where the children should live, the parties are also unable to agree upon what the time spending arrangements should be. As mentioned, the children spend time with the parties in accordance with the divorce decree however, the parties’ relationship has deteriorated such that handovers have become problematic, and the time spending regiment requires the parties to come into contact with one and other on at least 6 occasions per week.
DOCUMENTS RELIED UPON
The father relies upon the following documents:-
(1)Further Amended Initiating Application sealed 5 December 2023;
(2)Affidavit of the father sealed 5 December 2023 (“the father’s trial affidavit”);
(3)Affidavit of the father filed 8 March 2024 (“the father’s reply affidavit”);
(4)Affidavit of Ms L sealed 11 December 2023;
(5)Affidavit of Ms M sealed 22 December 2023;
(6)Affidavit of Ms N sealed 5 December 2023;
(7)Affidavit of Ms O sealed 11 January 2024; and
(8)Single Expert Report of Mr P dated 6 March 2024.
The mother relies upon the following documents:-
(1)Amended Response to Initiating Application filed 16 February 2024;
(2)Affidavit of the mother filed 6 February 2024 (“the mother’s trial affidavit”);
(3)Affidavit of the mother filed 16 February 2024 (“the mother’s reply affidavit”);
(4)Affidavit of Ms Q filed 6 February 2024;
(5)Affidavit of Ms R filed 19 February 2024; and
(6)Affidavit of Mr D filed 20 February 2024.
Prior to the commencement of trial, both parties filed a Case Outline and Cost Notice. In addition, they both relied upon the Family Assessment Reports of Ms T dated 9 March 2023 and 24 February 2024.
TREATMENT OF THE EVIDENCE
At the commencement of the trial, the Court highlighted the five principles pertaining to child related matters as well as the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Whilst the mother has alleged that the father perpetrated family violence during their relationship, the mother does not consider that the father presents as an unacceptable risk to the children. The mother concedes that it is in the best interests of the children that all that can be reasonably done to foster and maintain their relationship with the father noting that, at present, the children spend six nights a fortnight with the father.
The parties agree that the children should maintain a relationship with the father and that but for the mother’s application to relocate the children to the USA there would be no contention as to whether or not the children should spend time with the father.
In those circumstances, s 69ZT(1) of the Act shall apply and evidence that would not be admitted as a consequence of the Evidence Act will be admissible but the weight that such evidence is to be given is a matter for the Court’s discretion.
THE EVIDENCE
The father
The father relies upon his trial affidavit filed 5 December 2023 and his affidavit in reply filed 8 March 2024.
The father is currently employed as a manager having worked for the same employer since late 2020. Whilst his employment commitment is notionally from 9.00 am to 5.00 pm Monday to Friday, it is likely that the father has flexibility that enables him to attend to the children’s curricular and extra-curricular activities.
In mid-2021, the father re-partnered with Ms O. Ms O is based in Adelaide however, she works for an international organisation and is currently situate overseas. It is her intention to live in Adelaide where she owns real property.
An aspect of the proceedings concerns the extent to which the father is able to access money from his late father’s retirement account. Income received by way of distribution is categorised as “foreign income”. Some question remains as to whether the father, given he is the sole beneficiary, could access more funds than is the current minimum distribution. The relevance of the inheritance as a financial resource is as to the extent that the father is able to pay for travel between Australia and the USA should the mother be successful in her application to relocate the children to City B, State C.
Whilst there may well remain a dispute as to the nature and extent of the time that the children spend with the father, it is the relocation component of the mother’s proposal that separates the parties from reaching agreement.
A number of issues arise between the parties but in particular, a dispute as to the basis upon which the parties but especially, the mother and the children, came to Australia. The mother’s contention is that it was for a limited period of time whereas the father’s position is that despite the separation on 20 May 2018, it was the intention of the parties that Australia would become the habitual place of residence of the children.
A significant proportion of the parties’ trial affidavits but in particular the mothers, deals with the issue of their separate intentions in respect of relocation to Australia.
The father’s contention is that after four years there is little utility or relevance in considering a determination of the intentions of the parties in coming to Australia.
Simply put, the father considers that the children are well settled and consistent with the well understood authorities, the Court needs to consider the separate proposals of the parties taking into account the advantages and disadvantages of each proposal in determining what is in the children’s best interests.
The father does not cavil with the reason given by the mother for her decision to return to the USA with the children. There is no suggestion that the mother’s decision is motivated by malice or as a strategy to interfere with the father’s relationship with the children.
The mother has a relationship with Mr D who is well settled both as to his employment and accommodation in City B, State C.
The father acknowledged that following the separation of the parties on 1 May 2018, and following mediation, a document was filed in the Court of State C which resolved issues of property settlement, child support, spousal maintenance and the future parenting arrangements for the children (“the Divorce Decree”). The Divorce Decree (exhibit “2”) contained a parenting plan entered into by the parties.
The parenting plan was underpinned by the following acknowledgments and considerations:[1]
The parties acknowledge that this Parenting Plan was negotiated prior to the parties' decision to relocate to Australia in 2019-2020. It is the parties' best intention to cooperatively navigate a move to Australia such that Mother, Father, and the children are able to qualify for permanent residency in Australia in two years' time. However, the parties also acknowledge that the default United States location for Mother and the children will be City B, State C, unless an alternate mutually agreeable location is determined in writing by both parties.
The parties' move to Australia will happen in multiple stages over the next 6-8 months. This move may require the parties to be temporarily separated from the children at various times. Both parties acknowledge that such temporary separation is an anticipated part of the family's move and in no way constitutes abandonment of the children (including times where one parent is in the U.S. while the children are in Australia, or the children are in the U.S. and a parent is in Australia)
[1] Exhibit 2, page 41.
In broad terms, the parenting plan provided for the mother to have “sole legal custody of the children” which carried with it, subject to consultation with the father, the ability to determine major issues affecting the children such as education, health care, and religious training.
It was intended that there would be effective shared care of the children however, if the parties were not able to reach reasonable agreement, then the children would spend time with the father on Monday, Thursday and Saturday of each week, for some period over the weekend and for substantial time over school holidays.
It is common ground that the parties did not seek to register the overseas orders in Australia, but the father concedes that each of the parties considered that the provisions of the parenting plan were binding on the parties and in broad terms, they followed the arrangements. It is a relevant observation that the USA and Australia are signatories to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of parental responsibility and measures for the protection of children (“the 1996 Convention”) which would apply to children who have not yet attained the age of 18 years.
Orders made in the USA could have been registered in Australia (if the parties elected to do so) and similarly, orders made in Australia could operate in the USA.
The 1996 Convention provides a mechanism for the recognition and enforcement of orders made in one contracting state in all other contracting states.
A further aspect of the parenting plan, in particular the entirety of the orders made in City B, is that whilst made in contemplation of the relocation to Australia, it was signed well after the intended travel had taken place.
The father considered that the parenting plan did not take into account what would happen in Australia and on reflection, he considered that the document was likely to be unenforceable.
The father agreed that it required the mother to bring an application to compel him to sign the proposed orders.
Whilst now the relevance is likely to be limited, the father concedes that by late 2019 the mother had indicated to him that she was no longer enthusiastic about moving to Australia. The father accepted that the mother was having relationship difficulties with Mr D and wanted to explore a reconciliation with him.
In early 2020, the mother and the children arrived in Adelaide and initially lived with the father in his rented accommodation.
The parties altered the terms of the Divorce Decree such that the father was to pay no child support until one month after the mother had left the Suburb V property.
The father acknowledged that he had a lengthy video call with the mother in early 2020 but denied that the substance and tenor of the conversation was that the mother and children would remain in Australia on a temporary basis with the understanding that the children would return with the mother to City B when she decided it was appropriate to do so.
I accept the father’s evidence that he assisted the mother to settle into life in Adelaide.
Relevant to the future parenting arrangements is the poor relationship that now exists between the parties and in particular, the father’s acknowledgement that they have limited ability to communicate. The collaborative spirit for adventure has now dissipated.
The parties do not talk to each other at handover and by reference to email communication passing between the parties, it is evident that even relatively mundane parenting arrangements require a high level of communication that at times is redolent with anger and accusation. The lack of civil relationship between the parties is acknowledged by the father in the following paragraph from his trial affidavit:
97.As the months went on, significant fractures in our co-parenting relationship started to appear. By around May 2021, tensions between [the mother] and I were at an all-time high and it was becoming more and more difficult for me to live with [the mother]…
The father was asked to consider the mother’s allegation as set out in paragraph 40.5 of her trial affidavit which alleged that when she told the father she intended to return to the USA he threatened to “break [her] phone and break [her] too” and made a neck breaking gesture whilst running through the house. There is a further allegation that the father was abusive towards the mother and threatened that he would do all that he could to make sure that the children were not able to return to the USA. The father did not admit the particulars of the incident as alleged by the mother but did acknowledge that he did not tell the mother that the children had been placed on an airport watchlist.
By reference to the mother’s Case Outline document, she sets out her concerns as follows:
12.The arrangements, which have hitherto existed have had a detrimental impact on the Mother’s mental health. She is unable to live with her partner, [Mr D]. She has been in a relationship with him for a period of seven years. In addition, the Mother has experienced significant difficulties in relation to the Father’s behaviour both prior to and subsequent to the children’s arrival in Australia. The Mother deposes to:-
12.1.The Father being financially controlling during the relationship and subsequently;
12.2.The Father intimidating, abusing, denigrating and criticising her. The Mother says that often, such acts occurred in the presence of the children;
12.3. Difficulty communicating with the Father.
13.Sadly, the Mother deposes to feeling that her life and her ability to return home is being controlled by the Father.

Without attempting to minimise the very real impact the conflict has had not just on each of the parties, but importantly to the children, it is not the mother’s case that the father poses a risk to the children. The emotional and psychological risk to the mother on her case arises from her upset and distress about not being able to return to the USA.
The conflict between the parties often played out in the presence of the children.
The father sets out an incident that occurred on 15 June 2023 involving the handover of the children to and from their drama class in Suburb U.
Whilst not necessarily accepting the version of events as promoted by the father or the mother, it is apparent that the children were exposed to aggressive and angry conduct by each of the parties. The inability of the parties to coordinate the children’s curricular and extra-curricular activities around the parenting arrangements necessitated the children’s teacher, Ms S, to forward correspondence to the parties in June 2023 setting out in precise detail how she would like the parties to interact with each other, the children and the class arrangements.
The following appears in an email repeated by the father in his trial affidavit at paragraph 183:
... This Thursday and every workshop here on in we would like the following to occur:
1.[The mother] will bring children to workshop and hang with [X] throughout this time in the bar area.
2.At 4.55 [the mother] & [X] will be invited to enter our workshop through the backdoor leading into the bar area. Once they have said their goodbye, [Mother] you will exit back through the same door and will not be permitted to leave the bar area under any circumstances.
3.[Father] at 5pm every class here on in, you are not permitted past the foyer door leading into the bar area. When the foyer door opens at 5pm, you can welcome and collect [Y] & [X], and all three of you will leave through the front door.
4.When they have completely left the premise, [the mother] will also leave the building and will not try to make any contact with the girls under any circumstances.
We believe this to be reasonable and fair for all concerned. Please respond to let me know you have read and received this message.
As matters have transpired, there was disagreement with the proposal by Ms S. It appears that as a result of the incident and the attempt by Ms S to mediate an arrangement between the parties that would hopefully avoid conflict in the presence of the children, the children no longer attend those classes as and from June 2023.
X is currently attending W School. There is disagreement between the parties as to the extent to which the father made a unilateral decision to enrol X or whether opportunity had been given to the mother to be involved.
Y remains at G School. The father’s evidence is that he is likely to remain in the Suburb V area and as such both children would attend W School.
The father’s financial position was a matter of challenge in particular in relation to the financial arrangements that enables access to access funds from his late father’s estate.
The amount is substantial and the relevance is the extent to which the father’s access to those funds contribute towards a fund set up by the parties and called the “children’s fund” and more generally, the extent to which the funds would enable the father to travel to and from Australia and the USA.
It appears that notwithstanding the distributions available to the father, the balance of the fund is approximately $845,000 however, it does not appear to change much.
What is not understood is the basis upon which withdrawals can be made and whether access is available only in respect of interest as opposed to the underlying income generating asset.
I do not consider that the extent of the father’s access to funds was readily explained by him and find that there was a level of reluctance to assist the Court in a better understanding as to the extent of his access to money available for distribution to him given he is the sole beneficiary.
The father’s evidence is that he does not intend to leave Australia even though the mother’s proposal is that if she is allowed to relocate the children to the USA then the father would have extensive time with them.
The father’s evidence is that he would need to obtain his own private rental accommodation and subject to considerations of the income that he might receive from the trust monies, he remains concerned that he would have difficulty in finding rental accommodation in City B. Income opportunities are limited and poorly renumerated.
The father has four weeks paid annual leave and he sets out that even a one three week return trip to City B would be a financial challenge. At paragraph 331 of the father’s trial affidavit he sets out the likely costs involved in returning to the USA for a limited period.
The father calculates his monthly living expenses in the sum of $5,913 but with total monthly income of $6,551 which comprises his salary of $4,476 and overseas pension (from his late father’s estate) of $2,075.
The significant aspect that arises from the father’s evidence, consistent with the mother’s evidence, is that each of the parties concede that the children have a strong relationship and close emotional attachment with them.
I consider that the father presented as a reliable witness.
Ms O
Ms O and the father met online in early 2021 and commenced a relationship soon thereafter.
The parties do not live together. At the time of signing her affidavit, Ms O was living overseas and travelled back to Australia on a regular basis.
Of interest is what appeared to be a developing relationship between the children and Ms O. Particularly, their interest in relation to her employment and an interest in humanitarianism.
Ms O has not met or spoken to the mother, however, has received a number of messages from her via Facebook Messenger which could be perceived as aggressive in content.
Ms O should be considered as an impressive witness who is likely to bring benefit to the children.
The mother
The mother relies upon her trial affidavits filed 6 and 16 February 2024.
The mother’s evidence as set out in her trial affidavit and repeated in her evidence, is that the travel to Australia with the children was intended to be temporary and, on her case, not to be for a period longer than three months. The Covid-19 pandemic and the resultant closure of boarders and inability to travel has resulted the children remaining in Australia for now more than four years.
The parties continued the parenting arrangements that were in existence as a result of orders made in the State C Court.
The mother does not consider that the care of the children has been shared but by the very nature of the time that they spend with the father, it amounts to three days per week.
Whilst not required, the mother underpins her proposal by highlighting that she is not able to engage in a relationship with Mr D nor can she take up employment opportunities which are not available to her in Australia.
Whilst there are some complaints in respect of the father’s behaviour which she describes as financially controlling, intimidating and verbally abusive, she also complains that she has difficulty in communicating with the father.
The mother’s current occupation is that of an educator. She presents as having high level qualifications and there is no reason to doubt her assertion that if she was able to return to the USA she would find ready employment.
The mother made a candid admission that when she received the father’s Application for final orders she did not read it other than to scan the first page. The mother then sought help from a friend to better understand the purpose of the application and in particular, that the father sought orders for the children to remain in Australia.
The mother accepted that she had booked airfares for herself and the children to travel from Adelaide to the United States of America leaving in early 2022 with an overnight stopover in Sydney and a departure from Australia the following day.
The children were with the father in early 2022. On that day, the parties communicated with each other by text message.
The following exchange is relevant:[2]
[Father]:Can you please let [X] know that I found the pens she was looking for, and then ask her if she would like then brought over.
[Mother]:Girls received. [X] says thanks but we have got it covered. Would you like to try Thursday, Friday, and Saturday this week? What do you think if I have Monday, Tuesday, Wednesday.
[Father]:Sure that works I like that it’s less back and forth are the girls happy with that schedule.
[2] Father’s affidavit of 5 December 2023, exhibit ‘JTB-17’.
It was put to the mother that she was disingenuous in her communication with the father by offering to agree future parenting arrangements even though at all material times she and the children would be leaving Australia to return to the USA.
It is also agreed that the mother had booked a one-way airfare and it is likely that upon receiving the father’s application she had made the overseas travel arrangements.
The mother conceded the arrangements that she made and that she had planned to tell the father once the children had arrived in the USA. The mother and the children were stopped at customs when they attempted to leave Sydney airport. The father had apparently placed the children on an Airport Watchlist. The mother agreed that it was an upsetting incident and that the children were distressed.
Whilst the mother contends that she had effectively warned the father that she intended to leave Australia with the children, she agreed that she did not tell him of her plans for fear that he would stop their departure.
The mother also agreed that the children enjoy their time with the father and that her rationale was that she expected the father would follow the children back to City B.
There was also a concession by the mother that she had told the children that Australia is a “shit country” and that she felt she was “captive”.
The conduct of the mother borders on reckless in her attempt to remove the children from Australia. She was intentionally deceptive in her dealings with the father.
Following the failed travel to the USA, in June 2022 the mother forwarded a generic email to about 14 people in City B. The mother was asked as to the purpose of the email and whether she was attempting to garner support for her proposal to relocate the children.
Whilst it was a matter for the mother to communicate with whomever she wished, the more concerning aspect is the open invitation to recipients of the email to contact the children so that they would remain connected with City B based friends and community. The mother agreed that she considered the circumstances in which she and the children found themselves was akin to an international hostage situation.
The mother considered that she was well supported by Mr D who was a good friend before the relationship transitioned to one of him being a partner.
The mother was asked to consider the current orders in terms of the number of handovers that take place in each fortnight. Emphasis was placed on limiting the extent of block time to no longer than five nights. The mother did not consider that the father was sufficiently diligent as to routine parenting matters and at least one of her complaints was that the children on occasion returned to her care unkept and at times, dishevelled.
Whilst the mother considered that the father’s interaction with her was aggressive and that there is now diminished goodwill, nonetheless she impressed as recognising a close relationship existed with the children hence, her intention to support their relationship with the father whether the children are permitted to relocate to the USA or remain in Australia.
The mother’s evidence as to the proposed arrangements for the children, should they be permitted to return to the USA, were not the subject of significant challenge. I accept that the mother’s relationship with Mr D is one of mutual commitment and there is no reason to doubt that proper arrangements were made for the children’s education and further engagement in curricular and extra-curricular activities.
I am not however persuaded by the mother’s confidence that she is able to fully support the children’s relationship with the father either were he to return to the USA or if time is to be spent remotely.
Ms Q
Ms Q is a registered psychologist holding two degrees. She has practiced as a clinical psychologist since 1989 and is familiar with giving evidence in this Court. Ms Q provided a psychological report dated 29 January 2024 (“the report”) which was annexed to an affidavit filed 6 February 2024.
The mother first consulted Ms Q in June 2022. Ms Q has had 17 sessions with the mother, the last of which took place in December 2023.
Ms Q was asked to consider a diagnosis in relation to the mother and it was her opinion that in July 2022 the mother’s stress and anxiety scores were in the normal range with a depression score in the mild range. In December 2023, the stress score was in the moderate range and anxiety and depression scores were in the extremely severe range.
By reference to her report, Ms Q considered that the depression and anxiety was directly related to the mother having to remain in Adelaide and also having to navigate an abusive relationship.
In evidence, Ms Q conceded that the mother’s health issues may well have been exacerbated by the litigation and not necessarily as a result of an abusive relationship.
Ms Q opined that if the mother was allowed to return to the USA then her mental health would likely improve significantly because she would be able to resume a relationship with her partner, obtain better paid and more meaningful employment and enjoy the advantage of friendship and family groups.
Ms Q considered that if the mother was to remain in Australia, then she would need ongoing counselling and support and in respect of the specific consideration as to what impact, if any, on her mental health the following opinion is of assistance:[3]
Given the issues noted above, I would be concerned about [the mother] if she were to remain in Adelaide. On the one hand, her access to resources (her partner, family friends, professional work, income, familiarity of home environment, cultural connections) would continue to be severely undermined, and her exposure to high levels of ongoing stress (related to having to deal with [the father]) would be significantly amplified. This combination of reduced access to resources and high levels of ongoing conflict is especially toxic and in my view, would significantly undermine [the mother]’s mental health. I am not saying that she would not be able to manage her parenting and other responsibilities adequately, but it would come at a great personal cost.
[3] Psychological Report dated 29 January 2024 at page 3.
Mr D
Mr D gave his evidence remotely and confirmed that he remains the long-term partner of the mother.
Mr D confirmed his understanding from discussions with the mother that in late 2018, Mr D and the family travelled to Australia as the mother, father and the children had obtained temporary visas in mid-2017.
By his own admission, Mr D concedes that consequent upon the parties and the children applying for a temporary visa to reside in Australia in mid-2017, he travelled with the mother to Australia in late 2018. He agrees that active consideration was given to spending time and working in Australia however in late 2019 Mr D expressed concern as to the prospect of remaining in Australia and advised the mother that he considered his future was better served in City B.
There is no reason on the evidence to doubt the position that Mr D had adopted namely, that he did not intend to move to Australia and whilst he explored the options available to him, there remained some difficulty in obtaining short term visas. There is no obligation on Mr D to move to Australia, it is a matter entirely for him.
I accept his evidence that he is in a committed relationship with the mother and if she were to return to City B, they would resume a close personal relationship.
Ms T
Ms T (“the report writer”) is a Clinical Psychologist with two degrees. She is familiar with giving evidence in this Court and is considered by both parties to be a skilled single expert witness.
The report writer was asked to undertake a parenting assessment and prepare a Family Assessment Report in relation to the children consequent upon an order made on 5 August 2022. Accordingly, a Family Assessment Report dated 9 March 2023 was produced.
As is consistent with the report writers usual protocol, the assessment consisted of interviews with each of the parties, each of the children and observed interactions. The report writer utilised various standardised tests and had the advantage of a raft of court documents that comprise the file.
Of note is the differing representations by each of the parties to the report writer as to how they considered the children had settled into their schools. The mother considered that whilst Y was bright and had high emotional intelligence and compassion she considered that Y had been acting out since they were supposed to return to the USA and were stopped by the father’s actions. The mother conveyed a history of the children exhibiting tantrums, kicking, hitting, and destroying property such that the mother had arranged counselling for Y.
The father’s observations were significantly different. He considered that the children were happy at school and that Y in particular, enjoyed learning especially in the areas of maths and science. He had not witnessed any developmental concerns in respect of Y and whilst he understood that Y acted out at the mother’s home, however it was not his experience of Y in his home. He considered that the children were both happy and well settled in their current environment.
The mother was not complementary of the father and his interaction with the children and the report writer noted that the mother thought the father was narcissistic and that he subjected the children to neglect and emotional abuse.
The result of the Child Behaviour Checklist (“CBCL”) was that X demonstrated borderline clinically significant issues.
In interview, X presented as friendly and spoke in a positive manner about her new school and friends that she was making. She enjoyed language and music classes and had taken up dancing. She also plays musical instruments.
X indicated to the report writer that she was happy in her current circumstances and did not wish there to be any substantial change.
The children were aware of the dispute in broad and general terms noting that they thought their mother wanted them to go back to City B whereas their father did not.
X presented as having a positive perception of herself and was happy and free from worry. X’s presentation did not accord with the mother’s view that both she and Y were unhappy and not coping.
Y confirmed that the mother had advised them that their father had held them captive, that they were trapped and that the father was holding them hostage. Y however appeared happy in Adelaide and was keen to highlight her friendship group with whom she was closely related.
The report writer summarised Y’s position as follows:[4]
[Y] said that she did not really mind where she lived, but she also felt “kind of sad” at the idea of seeing less of her father. She said that he is “really nice” and does things that are nice. About her mother [Y] said that she is really caring, and that she hugs [Y] when [Y] is sad. [Y] conveyed she likes to play with both parents. Although [X] said that she did not think her father had a new partner, [Y] conveyed that he does have a partner, called [Ms O], who she said she really likes.
[4] Family Assessment Report dated 9 March 2023 at page 10.

X presented to the report writer as having positive memories of State C but also enjoyed her time in Adelaide referring to a close-knit friendship group, her dog and a fondness for her life in Adelaide.
The report writer considered that X at age 12 (now 13) was comfortable in her relationship with her parents and happy with the parenting arrangements. She had a positive perception of herself and presented as being well settled.
The report writer did not consider it was within her remit to make a recommendation about relocation but found that:[5]
…From a psychological perspective the writer is confident that the children, despite the parents’ criticism of each other, have positive and loving relationships with both of their parents. The writer is confident that given the children’s ages, and shared history with both parents, that the relationships could be maintained long-distance (with electronic communication and in person visits).
[5] Family Assessment Report dated 9 March 2023 at page 17.
The report writer summarised the competing issues as follows:[6]
The recent Affidavit material indicates how poor the co-parenting relationship has become, with arguments over birthday party arrangements taking on such significance. The writer does not share [the father]’s confidence that this will settle if a Judicial Decision is made for the girls to remain here. [The mother] makes a compelling argument why it would suit her personally to be able to return to the U.S. For the girls, it is less clear. It is not the responsibility of children to guide decisions about relocation, nor do they have the developmental capacity to consider all the relevant factors, but in any case, neither [X] nor [Y] expressed a strong view either way. They are now, finally, settled into school and friendships here in Adelaide. Their parents live close by, and near to both schools. They are managing with shared-care. If they move and [the father] does not, he will have less regular involvement (not be a part of school, extracurricular events or regular friendships). If they stay and [the mother] relocates, the same limitations hold for her. Children typically do best with two loving involved parents, but there are certain situations where this cannot be achieved. Of significant concern from this assessment is [the mother]’s report about the impact on her mental health, and the risk to both her own wellbeing, but also that this may compromise her care of the children and directly or indirectly, [X] and [Y’s] wellbeing…
[6] Family Assessment Report dated 9 March 2023 at page 18.
Despite the mother’s obvious desire to return with the children to the USA, the report writer’s impression of the mother was that her parenting was child focused and there was no suggestion that she tried to create a difficulty or difference for the children nor to undermine the father’s relationship with them.
At times, the mother did present as stressed at her personal circumstances.
In interview, X expressed a preference to remain in Adelaide and was not keen for change.
The report writer considered that X was not able to understand all the relevant factors and presented as a happy child. Y was more open to travel to the USA than was X.
It is an important part of the mother’s proposal that if allowed to relocate the children to the USA, then they would be able to travel between Australia and the USA if the father did not relocate. That consideration was important. If the Court could not be confident of the mother’s proposal or her preparedness to facilitate time should the father visit the children in the USA then this was a matter that needs to be given significant weight.
The report writer was certain of the close emotional attachment that the children have with each of the parties notwithstanding the mother may well doubt the closeness of the father’s relationship with them.
When asked to consider the father’s proposal that there be shared care the report writer considered that anything above five nights a fortnight is effectively shared care given that involves significant engagement with the day-to-day needs of the children. Even though the mother opposed any change to the current arrangements, the report writer was certain that some consolidation of time needed to be made to reduce the handovers which were in and of themselves a potential source of conflict and anxiety.
It is a reasonable summary of the report writers’ input that the issue is the mother’s anxiety about having to remain in Australia rather than any distress evident in the children’s presentation or circumstances.
Mr P
Mr P is an Accredited Specialist in Immigration Law. He has expertise in complex family visa issues.
Mr P holds several qualifications:
Mr P has given evidence in numerous proceedings relating to immigration, citizenship and migrant services.
Upon the joint request of each of the parties, Mr P provided an affidavit filed 7 March 2024 which annexed his report dated 6 March 2024 consequent upon the joint instructions of the parties.
An issue arose during the course of the proceedings in respect of the immigration status of each of the parties and the children.
The parties agreed that the affidavit and report of Mr P would be read into evidence without the need for him to be called for cross-examination.
It appears that the mother was granted a visa as the primary applicant with the father and children as secondary applicants.
The visa was granted in early 2018 and carries with it a condition that the applicant (being the mother) must live, study and work in a regional and/or low population growth metropolitan area of Australia. As a result of the travel restrictions imposed consequent upon the Covid-19 pandemic, the visa was extended until early 2025.
The ability of the mother to remain in Australia and to progress to a visa that would give her permanent residence status requires compliance with the conditions that underpin a different visa.
It requires that within the relevant period, the mother undertake 12 months of continuous full‑time employment either with a single employer or comprising a range of different employment but cumulatively totalling one year.
There is some evidence as to the mother’s ability to obtain the employment necessary to satisfy the visa conditions.
As considered, the mother holds significant qualifications. Mr P annexes a Curriculum Vitae of the mother at page 54 of his report. I do not propose to repeat the matters as set out therein other than to note that the mother’s expertise, experience and qualifications are significant.
The potential for uncertainty does not relate to the father.
In early 2024, the father was granted a visa for indefinite stay. The consequence is that if he chooses to do so, the father has permanent residency status in Australia and is able to progress to seeking an Australian Citizenship.
The children were originally included on the father’s visa Application as secondary applicants however, to progress an application to obtain permanent residence status, the Department of Home Affairs requires a Form 1229 to be signed by the parties. At the time of Mr P report, the mother had declined to do so and accordingly the children were removed from the father’s visa application.
It is understood that upon the parties signing the relevant immigration documents, the children’s status to remain in Australia will be conferred.
As considered, the mother’s visa has been extended to early 2025. Her ability to remain in Australia thereafter will be depended upon whether the mother has satisfied the employment conditions necessary to progress to a different visa similar to the process undertaken by the father.
If the mother’s visa is cancelled, it appears that she can then apply to the Minister seeking that his discretion be exercised in allowing her to remain in Australia and if unsuccessful, then recourse is available to the Administrative Appeals Tribunal for a review of the exercise of the Minister’s discretion.
The mother’s position is summarised by Mr P in his report as follows:
2.7If [the mother] meets the eligibility requirements for the […] visa prior to the expiry of her […] visa and lodges that application prior to the expiry, she will be granted an associated Bridging visa […] that comes into effect automatically upon the expiry of the […] visa and remains in effect until the permanent visa application is finalised. This Bridging visa will have unrestricted work and study rights. Should [the mother] seek to depart Australia and return while waiting for the permanent visa application to be processed, she can apply for a Bridging visa […] to facilitate this travel. [The mother] can be in or outside of Australia when that application is finalised.
(Citations omitted)
The important consideration is for the mother to complete twelve months of full-time employment prior to the visa expiring in early 2025.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties, in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act, are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the parents’ family, (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
PRINCIPLES APPLICABLE TO RELOCATION CASES
In AMS v AIF [1999] HCA 26, Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218. To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father ... or to be in the custody of the mother ... . That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother's custody ...
The Full Court in Starr & Duggan [2009] FamCAFC 115 ("Starr & Duggan"), gave clear direction as to the co-existence principle that the best interests of the child are the paramount consideration and the legislative framework will, of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38. ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties' respective proposals. In the case of Starr & Duggan (supra), it was the wife's application that she be permitted to relocate to Germany with the children.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children, and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90, the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48."Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
Of course, the mother is able to return to the USA without the need for an order of this Court. The focus is to consider the separate proposals of the parties, having regard to the benefits and detriments that the children will experience and ultimately, the Court is required to determine the matter on the basis of the best interests of the children.
PARENTING CONSIDERATIONS
Meaningful relationship
As discussed, the Court is required to focus on the practicality of each of the parties’ proposals and to consider the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
It is an important feature of the proposals of each of the parties that they expressly support the children maintaining a relationship with each of the parties together with the stated recognition that it is important for the children to do so.
The mother’s proposal is that if relocation is allowed to the USA, then the children should spend time with the father at a minimum as set out in the parenting orders as appear in the Divorce Decree granted in the Court of State C.
For his part, whilst the father opposes the orders sought by the mother that would result in the children relocating to the USA, he considers that the children’s best interests are served by equal time.
The orders sought by the parties are complex. The mother considers that there are three possible outcomes comprising firstly of if the mother is successful in her application to relocate the children to the USA and the father remains in Australia, secondly if she is successful in her relocation of the children and the father determines to also relocate to the USA or thirdly, if the mother is unsuccessful in her relocation application.
As such, consideration needs to be given to each of the proposals of the parties to gage whether the importance that the parties recognise of the children having a meaningful relationship with each of them will be met.
If relocation of the children is ordered and the father elects to remain living in Australia then the mother proposes that provided the father shall pay the travel costs associated with the children (but not the mother), the children shall spend time with the father for a period of at least three weeks to coincide with the USA summer holidays and for a period of four weeks, in the USA, to coincide with the USA Christmas school holidays.
If the mother’s application is successful and the father also relocates to the USA then as considered, the parenting arrangements are to be determined by reference to the State C Divorce Decree dated late 2021.
If the mother’s application to relocate to the USA is unsuccessful then the mother proposes the following orders:
(a)The children live with the mother.
(b)The children spend time with the father each week as follows unless otherwise agreed between the parties:
(i)From 5.15 pm on Monday until the commencement of school (or 2.30 pm for non-school days) on Tuesday;
(ii)From 5.15 pm on Thursday until the commencement of school (or 2.30 pm for non-school days) on Friday; and
(iii)From 5.15 pm on Saturday until 5.15 pm on Sunday.
In addition, the mother proposes that during short school holidays the children spend five nights with the father and during the long school holidays the children shall spend for two periods of five nights commencing 2 January and 12 January in each year.
If the Court considers that it is in the best interests of the children to relocate to the USA, then the father seeks that it not occur before 1 June 2026 and in any event, on not less than three months written notice.
Upon the children relocating to the USA the father seeks that he be at liberty to spend time with the children for a period of up to 20 weeks per annum although, he does not specify with any precision other than in the following terms:
5.2.1The father shall notify the mother in writing of the dates that he intends to spend time with the children no less than three months prior to the commencement of such time spending and, unless otherwise agreed between the parties in writing, the mother shall do all necessary things and acts to facilitate the father’s requested time with the children.
5.2.2The father shall do all necessary acts and things to minimise any disruption to the children’s schooling and extra-curricular activities and shall make every effort to spend time with the children during the school holiday periods including spring break, winter break and summer break.
5.2.3There is no requirement that the father’s time with the children be taken consecutively.

In summary, the father seeks extensive time with the children but on the basis that the parties should be able to reach an appropriate agreement.
There is some uncertainty as to the nature of the orders sought by the father if the children are to spend time with him in Australia.
It appears that the father’s orders contemplate the children traveling to Australia at his election during the 20 week period that he nominates with the parties sharing equally in the children’s travel costs but if it is required that the father or his agent travel to the USA to accompany the children back to Australia, then the travel costs would be borne by the mother.
The father rejects any proposition that he intends to return to the USA to live permanently. It is of course possible that the father may change his mind but I accept the father’s evidence that in reality, his relocation to the USA on a permanent basis is not a viable option.
Accordingly, whilst the terms and conditions that might apply are not the subject of agreement, the three options are as follows:
(1)That the mother’s application for relocation is not permitted;
(2)That the mother be permitted to relocate the children to the USA forthwith; or
(3)That the mother is permitted to relocate the children but not before 1 June 2026.
I bring to account the evidence as to the current relationship that the children have with each of the parties as observed by the report writer. Whilst there remains some uncertainty as to how the detailed orders sought by each of the parties will operate, I am satisfied that the children would maintain a meaningful relationship with each of the parties in particular the father, if they relocated to the USA.
The need to protect the children
I have regard to the matters raised by the mother as set out in paragraph 39 of the mother’s trial affidavit.
The alleged family violence encompassed financially controlling behaviour, intimidating and angry outbursts and a propensity to refer to the mother in derogatory terms. The father denies the broad spectrum of the mother’s allegations but accepts that at times there were angry exchanges.
Family violence must always be given careful attention and if there is evidence that provides substantiation to a claim of family violence, whilst it may be one factor to bring to account in determining appropriate parenting orders, it should be given significant weight.
I am not satisfied that the evidence as presented on behalf of the mother is able to satisfy the requisite standard of proof. In order to assess its impact, I bring to account that post separation the parties engaged in what might be considered an unusual plan involving the parties, the children and Mr D moving from the USA to Australia.
Whilst there is some dispute on the evidence as to what properly should be considered as the mother’s overarching intention in terms of travel to Australia, the evidence of Mr D, at least from his perspective, was that he was open to relocating to Australia but ultimately found it not to be his preferred position.
It could not be said that the separate proposals of the parties are formulated to bring to account concerns as to family violence. Whilst I accept that the parties may well harbor and intense dislike for each other, the evidence does not suggest that there has been any adverse impact on the children.
The matter to be considered is whether it will be to the advantage or disadvantage of the children of living primarily in the USA or in Australia.
Any views expressed by the children
Each of the parties give evidence as to their perception of how the children are coping in their current circumstances.
The mother considers that X was shy, may present with autism like behaviours and struggled with emotional stability. In interview with the report writer the mother set out her observations that despite the teachers not raising any concerns, X would have frequent meltdowns at school, had displayed aggressive and angry behaviour and had told the mother that she wanted to return to the USA and in particular, her friends.
For the father’s part, he considered that X was a good student and had managed the transition to High School easily. His observations of X’s peer support group was qualitatively different to that of the mother. He did not agree with the mother’s purported observations of autism like behaviours and broadly considered that X was happy in her school, content with her friendship network and had expressed a willingness to remain in Australia.
In interview with the report writer, X was observed to be a quiet child but spoke enthusiastically about her educational circumstances, her school, her friends and the suite of curricular and extra-curricular activities.
Music is an important feature of the presentation of the parties but also the environment in which the children were brought up. Each of the parties has a high level of musical aptitude and it appears that in X being able to play two instruments, there is some corroboration for X’s statement of contentment in her current circumstances.
There is some uncertainty as to the extent to which the children have an understanding of the parameters of the dispute between the parties. It is likely however that X knows that her mother would wish the children to return with her to the USA whereas her father opposes that move. The issue was brought into stark focus in respect of the mother’s attempt to depart with the children from Australia in 2022 without the father’s knowledge.
When asked, X reported a positive experience living in Adelaide as being that she has “a bunch of friends that already know me more”, and that her dog (who lives with her father) is also here. X described her dog (a boy) as “very energetic and funny”. About Australia, X also said “that it is easy to travel to other states in Australia”.
X conveyed feeling close to both parents. About her mother’s partner, Mr D, X said that she liked that “he has Netflix and Disney”. She did not have any complaints about him. Asked if her father had a new partner, X said “she did not think that he did”.
An important consideration is that X’s response to the Piers-Harris Children’s Self-Concept Scale which measures self-concept in children indicated that she had a positive perception of herself in all areas. The report writer considered X to be generally happy and other than some anxiety (at the time) of starting High School, she was free from worry.
Both parties were in closer agreement that initially Y had a difficult experience starting in Year 1 without the advantage of a feeder kindergarten to enable school preparation.
The mother considered that Y had been exhibiting tantrums, aggressive conduct that also included destroying property and it was the mother’s perception that the behaviour could be explained by Y expressing a wish to return to the USA but being prevented from doing so.
The father’s observations as to Y’s behaviour were significantly different to the report of the mother. The father considered that Y was happy at school, had now made several good friends and whilst there was still some “tantrum” like behaviour it was rare and easily managed.
The report writer involved each of the parties in the Achenbach Child Behaviour Checklist (“CBCL”) which is a questionnaire completed by each of the parties that provides an opportunity for the children’s behaviours to be categorised.
The summary of each of the parties CBCL responses are relevant in highlighting the extent to which the parties hold a differing view as to how Y currently presents:[7]
On the CBCL [the mother]’s responses indicated that [Y] is demonstrating symptoms of ‘Anxious/Depressed’ behaviours that are on the borderline of being clinically significant (e.g., being fearful, crying a lot, not wanting to go to school). [The mother]’s responses also indicated that [Y] demonstrates clinically significant ‘Aggressive’ behaviours (e.g., destroying things, being disobedient, screaming a lot, attacking people, having a temper). In contrast, [the father]’s responses did not indicate any behavioural or emotional concerns.
On the CBCL form [the mother] wrote: “I believe she ([Y]) is the recipient of narcissistic abuse from her dad. I witness emotional neglect and psychological abuse, and also experience the fallout from this when she is with me. It is destroying her sense of self.” [The father] wrote: “My understanding is that [Y] has some behaviour problems (i.e., tantrums) when with her mother, however I almost never experience this. When picking up the children, both girls – but especially [Y], change their behaviours as soon as we walk away from [Ms Sujatha]. It’s almost as if both become more mature and able to have a conversation”.
[7] Family Assessment Report dated 9 March 2023 at page 8.
An enquiry of Y’s teacher revealed that in class Y was calm, friendly and although slightly reserved she was confident, self-motivated and had a good attitude to learning.
Similar to X’s understanding of the conflict, Y was not entirely sure as to the nature of the dispute but she was aware that the mother wanted the children to return with her to the USA whereas her father stopped that from happening.
It is reported in the Family Assessment Report that the mother said to Y:[8]
“the reason we are stuck here is because Daddy said something where we can’t leave”. [Y] later said that her mother had also told her “Dad has holded us captive”, that her father has “trapped us”, and “is holding us hostage”. [Y] also reported that her mother thinks that Australia is a “S word country”. Nonetheless [Y] reported she was okay with being in Adelaide, because her friends are here. She said her father does not really talk about the issue of where to live.
[8] Family Assessment Report dated 9 March 2023 at page 9.
Y reported that she was unconcerned as to where she lived but understood that if she returned to the USA she would see less of her father which made her “kind of sad”. Y considered that each of the parties were caring and did nice things for her. The report writer considered Y was happy with the current arrangements.
The report writer considered the extent to which the views and perceptions of the children should influence the decision as to whether relocation would be in their best interests. After a consideration of the more recent affidavit material, the report writer provided the following summary:[9]
The recent Affidavit material indicates how poor the co-parenting relationship has become, with arguments over birthday party arrangements taking on such significance. The writer does not share [the father]’s confidence that this will settle if a Judicial Decision is made for the girls to remain here. [The mother] makes a compelling argument why it would suit her personally to be able to return to the U.S. For the girls, it is less clear. It is not the responsibility of children to guide decisions about relocation, nor do they have the developmental capacity to consider all the relevant factors, but in any case, neither [X] nor [Y] expressed a strong view either way. They are now, finally, settled into school and friendships here in Adelaide. Their parents live close by, and near to both schools. They are managing with shared-care. If they move and [the father] does not, he will have less regular involvement (not be a part of school, extracurricular events or regular friendships). If they stay and [the mother] relocates, the same limitations hold for her. Children typically do best with two loving involved parents, but there are certain situations where this cannot be achieved. Of significant concern from this assessment is [the mother]’s report about the impact on her mental health, and the risk to both her own wellbeing, but also that this may compromise her care of the children and directly or indirectly, [X] and [Y’s] wellbeing…
[9] Family Assessment Report dated 9 March 2023 at page 18.
The nature of the relationship of the children with each of the parties and other persons
Whilst the conflict between the parties is ongoing, the children would appear to be well supported in each parent’s home. It is not suggested by either of the parties that there is a poor or troubled relationship with each of the children. As considered, the orders sought by each of the parties could only be explained by a recognition that the current level of interaction is in the children’s best interests.
There is scant evidence as to the interaction between the children and members of their extended family in the USA. For his part, the father considers that the mother may well have an unnecessarily optimistic view of the relationship she has with her extended family but the focus of the evidence centred upon the parties and their relationship with the children rather than the role that may be played by other more peripheral family members.
Whilst the children have a positive relationship with Mr D, his involvement is secondary to the important role played by each of the parents in the lives of the children.
In any event, whatever is the outcome, the proposals of each of the parties would enable the children to return to the USA on a regular basis.
The extent to which each of the child’s parents have fulfilled or failed to fulfil the parent’s obligations to maintain the child
The parties have each made a significant parenting commitment to the welfare and development of the children. There are no complaints in respect of either the involvement of each of the parties in the children’s curricular and extra-curricular activities and the extent to which the financial needs of the children have been appropriately met.
Whilst the parties consider that they appropriately engage with the children, the more reliable indicator is the extent to which the children have indicated to the report writer that they are content with the current parenting arrangements.
I do not ignore that the parties have a significantly different view of how the children are functioning and where there is disagreement, I refer to the evidence of the report writer’s interaction with the children, but also the corroboration provided by the outcome of the standardised psychological testing which indicates a level of contentment on the part of the children.
The effect of any changes in the child’s circumstances
I accept that if the children’s relocation to the USA is permitted, the father will remain in Australia.
If the children are not permitted to relocate, then it is likely that the arrangements for the children will remain as relatively settled. I do not ignore that the mother considers the current arrangements should persist whereas the father argues that there should be block time which will reduce the volume of handovers each week.
I do not ignore the issue of the detail of the parenting arrangements but essentially the children will remain in the shared care of each of the parties.
The significant change arises if relocation is permitted. The children will take up primary residence in the USA but in particular in City B, State C. It is likely that they will be part of a household that involves Mr D.
It is conceded on the part of the mother that if the father does not relocate then of necessity, the children will spend significantly less time with him.
Whilst I do not consider that the mother’s proposal would result in the children losing their relationship with the father, the lack of day-to-day interaction is significant, and the relationship thereafter would be qualitatively different.
The mother proposes that if permitted to relocate the children then commencing in 2025 the children will spend at least three weeks with the father to coincide with the USA summer holidays with the travel expenses associated with the children traveling to Australia and returning to the USA to be borne by the father. However, the mother undertakes to pay her own travel costs.
The time proposed by the mother is subject to a number of conditions. It is not suggested that at least for the foreseeable future the children would be able to travel unaccompanied. The mother’s proposal provides for the possibility that she might not be able to accompany the children in which circumstance the parties may agree for an alternate adult to travel with the children. There is some uncertainty as to what might happen if the mother was unable to travel and an alternate adult was not the subject of ready agreement.
A further condition is that the children will spend time with the father provided he is not engaged in employment in which circumstance they will spend time with the mother or presumably such other person who may have accompanied the children from the USA.
The mother also proposes that during the period that the children are with the father, he facilitate the children speaking to her each alternate day and that they should spend some time with the mother on one occasion per each five-day period.
The mother also proposes that the father have the option of traveling to the USA for a period of four weeks again to coincide with the USA Christmas school holidays and with the father to pay his own travel expenses. She proposes that a similar arrangement be put in place in terms of the children being able to contact the mother every second day and to spend one occasion per five-day period of at least five hours with her.
There remains the possibility that if the father elects to travel to the USA on other occasions, then the children shall spend time with him as may be agreed.
The mother also proposes that there shall be no make up time in the event that one party is unable to care for the children during their scheduled time.
Should the children be able to relocate to the USA then the father proposes that he be at liberty to spend time with them for a period of up to 20 weeks per annum on the condition that he shall notify the mother in writing that he intends to spend time with the children not less than three months prior to the commencement of such time spending and presumably the arrangements will be the subject of agreement between the parties.
The father contemplates that his time would not necessarily be taken consecutively and as such, it may well be that his 20 weeks are spread out across the year.
The father also reserves the option of electing to spend time with the children in Australia which would require international travel. The costs of the children’s travel would be borne equally by the parties however, the father’s costs and costs of any other accompanying person shall be borne by the mother.
At its most basic level, the mother’s proposal would enable the children to spend time with the father in Australia for three weeks and then at the father’s election for a further four weeks in the USA.
The father’s position is that he is able to spend collectively 20 weeks with the children per annum at times as may be agreed.
The mother’s proposal is more straight forward. The father’s proposal invites disagreement and disruption arising out of the poor relationship that the parties have. Their ability to communicate is compromised and I give weight to the evidence of the report writer that the father’s view of an improving relationship with the mother once litigation is over is unrealistic.
I do not ignore the parties’ hostility and the allegation, and counter allegation, that each of the parties make about each other.
The overarching concern is that on the mother’s proposal, the children’s time with the father will be dramatically reduced and will amount to no more than holiday time.
There is no circumstance where the father will be able to engage with the children’s curricular and extra-curricular activities.
The report writer acknowledged that whilst the children were well settled in Australia, she considered that with some disruption, the children would navigate a return to the USA. The evidence does not support the mother’s contention that the children are unhappy, distressed or have psychological or at a psychological risk if they are not permitted to return to the USA.

It is the mother’s presentation in terms of her distress and upset about not being able to return to the USA and in particular to pursue what she considers are expanded opportunities to advance her music practice but of significance, to resume a relationship with Mr D. What is ignored is a consideration of the advantages and disadvantages to the children of the proposals of the parties.
What is apparent is that the children are not disadvantaged by remaining in Australia. Evidence from the children’s school, as obtained by the report writer, is supportive of the children’s integration, development, academic progress and peer group stability.
Moreover, the children enjoy a close attachment and relationship with each of the parties. Their evidence is that they are content with the current arrangements of shared care.
The disadvantage arises from the psychological functioning of the mother and the potential adverse impact of the mother not being able to return to the USA. Ms Q considered that the mother’s mental health would improve if allowed to relocate to the USA but Ms Q did not say that the mother would not be able to manage if she was not permitted to relocate.
The further disadvantage is that the report writer did not consider that at present the children were able to fully comprehend or weigh up the consequences of relocating. The most obvious outcome of the mother’s proposal is that the children would immediately go from a shared care arrangement to one of minimal time with the father. Again, whilst I do not consider that the father will be forgotten by the children, there is no evidence that enables me to find that at present, the children would be able to navigate an easy transition to life back in the USA without the significant involvement of the father.
Simply put, the children’s current circumstances are well understood and has enabled them to thrive developmentally. A return to the USA brings with it unknown consequences, even though the Court can have confidence that the parties would act responsibly.
The practical difficulties and expense of a child spending time with or communicating with a parent
Overseas relocation of necessity involves disruption but also significant cost. No evidence was presented as to the ability of either of the parties to financial support the travel costs component inherent in each of their extensive and detailed orders sought.
A further problem is that the parties are not agreed as to how the costs should be borne by each of them if relocation was allowed. In the absence of evidence, the Court is not able to make a reliable determination. It is reasonable to assume that at present, the father is in the more secure financial position whereas the mother remains hopeful of employment if able to return to the USA. However, there is no evidence that would provide either certainty of employment or even reasonable probability of same and if so, at what level of renumeration which would need to be considered against the background of the mother’s fixed and discretionary expenditure.
Any other fact or circumstance that the Court thinks is relevant
The evidence of the report writer supports the children spending block time with each of the parties rather than the current informal arrangement which is effectively each alternate day.
The mother opposes block time for school term but supports a block time of five days during school holidays.
There is no evidence that supports a retention of the mother’s proposal.
The children are easily of an age where they could remain in the care of each of the parties for longer periods without adverse impact.
Again, the objective outcome of standardised testing of the children supports a finding that their level of adjustment is far more stable and secure than as considered by the mother. To some extent, it is likely that the mother brings her own distress into consideration and potentially superimposes her anxiety upon the children.
The mother’s proposal is that the children spend significant extended time with the father for either three weeks over the USA Summer holiday period or up to four weeks over the USA Christmas holiday period. While some conditions apply, it is inherent in the mother’s proposal that she recognises the children are able to remain in the primary care of the father for extended periods.
The father recognises that the children are able to remain in the mother’s primary care for extended periods.
Both parties agree that international travel should be allowed and properly structured, this may well see the children spending significant time in the USA for shorter periods mid-year but for extended periods at the end of the year.
I do not ignore the matters raised by the mother as to the advantages that she considers would inure to the children of returning to the USA, reconnecting with extended family and friends and to consolidate their cultural heritage.
At present, the evidence of the report writer was such that less weight should be given to any views expressed by the children at this stage of their development. As they get older, their views may well change.
The father contemplates the possibility that the children could return to the USA on or after 1 June 2026. There is some merit in that consideration. By that stage, the children will have a clear understanding of their life in Australia and would have had the further advantage of return visits to the USA.
Whilst not suggesting that the litigation should be ongoing, there is likely to be a significant advantage to the children of having the option and opportunity to elect to return to the U.S.A. It is likely that as of 1 June 2026 the children will be spending time with each of the parties upon their terms and as such it would be anticipated that the parties would facilitate the views of the children.
Immigration status of the mother
The issue of the mother’s immigration status and, the extent to which she is able to satisfy the employment requirement necessary to secure a visa, is uncertain. The mother has indicated that if the outcome of the proceedings is such that the children are to remain in Australia, then she will do all that is necessary to remain with them.
I accept that there is no circumstance, other than if the mother is forced to do so, that she will return to the USA without the children.
The Court is not able to accurately predict the future particularly in terms of the mother’s employment opportunities. It is sufficient to find that the mother has an intention to do all that is required that would enable her to remain in Australia.
The matter was the subject of consideration by the mother’s counsel who submitted that I was entitled to find that for at least the next few years there would be no resolution to the immigration issue and therefore the mother would be able to stay in Australia. Upon the expiration of the visa, then a consideration would be given to a different visa. On the evidence of Mr P, the entire process might take between 447 days to 1,112 days.
I am satisfied based on the mother’s evidence and the unequivocal submission of counsel that given the orders I propose to make, any uncertainty in the immigration status of the mother is not a determinative factor in the proceedings.
Counsel further submitted that I am able to find that the mother would do all things necessary to sign documents that would enable the children to obtain permanent residency.
CONCLUSION
Matters involving the international relocation of children are never easy. Of necessity, they produce a difficult outcome which often sees one parent’s relationship with a child or children significantly interrupted. That does not mean that international relocation should never occur but it highlights the complexity and the competing interests of the children and the extent to which their best interests are adversely affected.
On balance, I find that the interests of the children will be best served by remaining in Australia until 1 June 2026 whereupon they will be permitted to relocate with the mother if they should express a wish to do so.
I do not ignore the mother’s adverse psychological presentation, but I am persuaded by the evidence of Ms Q that the mother’s distress can be appropriately managed and, in any event, does not yet appear to have adversely impacted her ability to parent the children.
The parties agree that they should be able to travel with relative freedom internationally and there will be adequate opportunity for the children to return to the USA and bring to account what is likely to be a pleasant experience for them.
Given that at the very least the children will remain in Australia until 1 June 2026, there needs to be a change in the parenting arrangements taking into account the evidence of the report writer who properly considered the attitude of the parties towards each other, the nature of the conflict, the dispute and the impractical nature of the frequent and unnecessary handovers.
I do not consider that the evidence supports the proposal of the father that would see shared care continuing but in the guise of four nights in each intervening week and three nights in each alternate week.
The children should spend three nights with the father in each week. The children are comfortable with the current arrangements, and I see no need for the father’s time to either be increased but certainly not decreased. There is no disadvantage to the children of spending block time rather than the alternate day arrangement currently in place.
There is also no evidence to support the mother’s concern that any block time to the father should be limited to five consecutive days.
I propose to order that the school holidays should be shared and in particular that each of the parties should enjoy one half of the Christmas school holidays thereby enabling overseas travel to occur.
It is not beyond the ability of the parties to reach other arrangements to suit their circumstances however, orders need to be put in place to at least set out a minimum parenting arrangement.
Again, over the next few years the children will mature and it would be reasonable for increasing weight and consideration be given to their changed circumstances but also how they would want to interact with each of the parties and whether at some point they would be keen to relocate to the USA.
The parties are not agreed as to parental responsibility. Given the circumstances, there is no good reason why the parties should not be able to reach appropriate consensus in respect of matters affecting the children.
If the children remain in Australia, the proposals of the parties are in effect shared care. If the mother was permitted to relocate the children back to the USA and the father was to follow, then the children would be in the shared care of the parties.
I bring to account the relevant factors pursuant to s 60CC of the Act and find that there should be an order for equal shared parental responsibility. The parties are able to communicate remotely and whilst there remains mistrust, anxiety and upset, there is no evidence that suggests they are not able to focus on the needs of the children as and when they arise.
The orders sought by the mother presuppose that even if she has sole parental responsibility, prior to making any major long term decision concerning the care, welfare and development of the children, she undertakes to notify the father, to seek his input, to consider any views expressed by him and whether she accepts or rejects his input and if so the reasons for that decision.
I have considered the appropriate arrangements for the children and as such whilst equal time is not indicated, the children spending three nights each week with the father coincides with their satisfaction with the current parenting arrangements and is in effect shared care.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and seven (307) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 28 June 2024

File number(s):	ADC 1047 of 2022
Judgment of:	BERMAN J
Date of judgment:	28 June 2024
Catchwords:	FAMILY LAW – CHILDREN – International relocation – Where the mother considers relocation was temporary, but the father intended to relocate permanently – Best interests – Where the children are settled in Australia – Where the parties acknowledge the children have a meaningful relationship with each parent – Consideration of the impact on transitioning back to the USA – Where the children cannot fully comprehend the consequences of relocation – Consideration of the psychological impact on the mother staying in Australia – Travel costs – Where a lack of evidence was presented as to the parties’ ability to financially support travel – Consideration of the mother’s visa – Submissions made that the mother’s uncertain immigration status is not a determinative factor in the proceedings – Where the Court considers the best interests of the children will be served by remaining in Australia until 2026 – Relocation then permitted subject to the children’s wishes. FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Consideration of configuration of time spending – Where the children currently spend each alternate day with each party – Where the father seeks for time spending to be in a block – Where the mother seeks to retain the current arrangements – Consideration of the impractical nature and unnecessary handovers – Where the parties have a poor coparenting relationship – Where the report writer supports block time spending – No evidence that supports a retention of the mother’s proposal – Orders for block time spending.
Legislation:	Family Law Act 1975 (Cth) Div 12A, ss 60B, 60CA, 60CC, 61DA, 69ZT
Cases cited:	AMS v AIF [1999] HCA 26 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	307
Date of hearing:	12, 13, 15 and 20 March 2024
Place:	Adelaide
Counsel for the Applicant:		Ms Miller
Solicitor for the Applicant:		Andersons Solicitors
Counsel for the Respondent:		Mr Anderson
Solicitor for the Respondent:		Resolve Divorce Lawyers

ADC 1047 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GUTIERREZ Applicant
AND:	MS SUJATHA Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	28 JUNE 2024