Kerson and Blake - [2020] FamCA 674

FAMILY COURT OF AUSTRALIA

KERSON & BLAKE

[2020] FamCA 674

FAMILY LAW – CHILDREN – international relocation – contested residence – re-hearing – where the mother contends for the children to live with her in the United States of America – where the father contends for the children to remain living with him in Australia – orders made for the children to remain living with the father in Australia

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Kerson

RESPONDENT:

Mr Blake

FILE NUMBER:

CAC

1154

2017

DATE DELIVERED:

20 August 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

17, 18 & 19 February and 1 May 2020

REPRESENTATION

THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr G Stagg

SOLICITOR FOR THE RESPONDENT:

Campbell & Co

Orders

THE COURT ORDERS ON A FINAL BASIS:

That the children, B born … 2006 and C born … 2012 (“the children”) live with the father in Australia.
That the parents have equal shared parental responsibility for the children.

THE COURT ORDERS UNTIL FURTHER ORDER:

That noting the further evidence required as set out at paragraph 106 of the Reasons for Judgment delivered 20 August 2020:
(a)the matter be listed for further submissions and hearing at 2.00pm on 2 October 2020 in the Family Court of Australia at Brisbane, by video using Microsoft Teams; and
(b)that whilst the parties are encouraged to negotiate and seek to reach agreement as to pending travel arrangements and future travel arrangements, if they are unable to do so, taking into account current COVID-19 restrictions, then each party shall file and serve by 25 September 2020 an Affidavit setting out any further evidence they wish to rely upon in respect of travel between Australia and the United States of America and return, and a minute of the order they contend for in respect of that issue.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CAC 1154 of 2017

Ms Kerson

Applicant

And

Mr Blake

Respondent

REASONS FOR JUDGMENT

Introduction

When two parents, who previously shared the care of their two sons (now aged 13 and 8) for three years, choose to live in separate countries that are 13,000 kilometres apart, it is only fair to observe that the Court’s power to determine the best future parenting arrangements for the children is severely limited.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kerson and Blake

Details

AGLC: Kerson and Blake [2020] FamCA 674
Case: [2020] FamCA 674
Decision Date: 20 August 2020

CaseChat Overview and Summary

In the matter of *Kerson and Blake*, heard by Baumann J, the dispute concerned parenting orders for two children, B and C. The father sought orders for the children to live with him in Australia and for the parents to have equal shared parental responsibility.

The court was required to determine the primary issue of where the children should live and whether to make orders for equal shared parental responsibility. Additionally, the court needed to address pending travel arrangements between Australia and the United States of America, particularly in light of COVID-19 restrictions, and to consider further evidence in relation to this aspect.

Baumann J made final orders that the children live with the father in Australia and that the parents have equal shared parental responsibility. The court also ordered that the matter be listed for further submissions and hearing on 2 October 2020 to address pending travel arrangements. The parties were encouraged to negotiate these arrangements, but if agreement could not be reached, they were to file and serve affidavits by 25 September 2020 detailing any further evidence and their contended orders regarding travel between Australia and the United States.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS:

That the children, B born … 2006 and C born … 2012 (“the children”) live with the father in Australia.

That the parents have equal shared parental responsibility for the children.

THE COURT ORDERS UNTIL FURTHER ORDER:

That noting the further evidence required as set out at paragraph 106 of the Reasons for Judgment delivered 20 August 2020:

(a) the matter be listed for further submissions and hearing at 2.00pm on 2 October 2020 in the Family Court of Australia at Brisbane, by video using Microsoft Teams; and

(b) that whilst the parties are encouraged to negotiate and seek to reach agreement as to pending travel arrangements and future travel arrangements, if they are unable to do so, taking into account current COVID-19 restrictions, then each party shall file and serve by 25 September 2020 an Affidavit setting out any further evidence they wish to rely upon in respect of travel between Australia and the United States of America and return, and a minute of the order they contend for in respect of that issue.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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