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.
However that is the dilemma the United States of America (“USA”) based Applicant mother Ms Kerson and the Australian based Respondent father Mr Blake have placed their children in and which the Court, after an earlier hearing in March 2018 and a successful appeal determined in November 2018, is asked to again determine.
This finely balanced case has required the Court to make a hard decision where there are no “winners” – especially for the boys. The reasons which follow seek to explain to both parents the pathway to its decision – with full knowledge that at least one of the parents will be extremely said and disappointed.

Competing proposals

For this rehearing the competing proposals set out in the parties’ respective case outlines – the mother’s filed 11 February 2020 and the father’s filed 13 February 2020 are set out below.

Mother

The mother’s primary proposal is that the children live with her in City D, State E and her carefully drawn proposal is set out in the document attached and marked Appendix One to these Reasons (without paragraphs 9 to 15). Although the mother includes a proposal in the event that both parents live in the USA, the father’s evidence makes it clear that he has no intention of doing so and, as a result this Court does not further consider these scenarios. I accept that if, in the future, the father does relocate and the children are also living in City D (or elsewhere in the USA), then the appropriate parenting arrangements for the children at that time will, if disputed, be a matter for a State Court with appropriate jurisdiction. Accordingly, in summary the mother proposes that:
a)if the children are permitted to live with the mother in City D and the father lives in Australia, then:
i)residence in City D occur in July 2020;
ii)the children spend time with the father:
(i)for up to five weeks of the City D Summer holidays (approximately nine weeks) in either Australia or the USA at the father’s discretion, with an attempt for some of the time, in Australia, to coincide with the Australian Capital Territory (“ACT”) end of term two school holidays;
(ii)in City D including the City D Winter holiday (approximately two weeks) for up to five weeks, with Christmas Day alternating week about for the two week holiday period. This proposal for all Christmases to be in the USA shall remain in effect as long as the paternal and maternal grandparents are living; and
(iii)if the father is in City D at other times, the children can spend up to three weeks additional time with the father on 28 days’ written notice, and subject to other conditions (see proposed order 6.3).
(b)if the children remain living in Canberra with the father, then:
(i)he cannot commence cohabitation with a partner without stringent conditions being met (see proposed order 17);
(ii)the children spend time with the mother:
1.for 10 days at end of term one school holidays either in Australia or another country of the mother’s choice – but not “continental” USA;
2.for a minimum of four weeks in the end of term two school holidays in the USA;
3.for 10 days at the end of term three school holidays, on the same basis as the end of term one school holidays;
4.for a minimum of four weeks in the end of year school holidays in USA “with the location of the visit alternating yearly between Australia and the USA” and, I infer, with the children to spend alternating Christmas Day with each parent;
5.if the mother is otherwise in Australia, for up to three weeks on the same conditions as the father would confront if the children were living in City D and he was in the USA.
b)At proposed orders 20 to 36.5, the mother carefully sets out a range of orders to apply “under all eventualities” relating to:
i)communication (orders 20 to 27);
ii)any serious health issues relating to the parents (order 28);
iii)travel arrangements (order 29);
iv)contact with wider family members (order 30);
v)restraint against the father and Ms F “co-sleeping” with C (order 31);
vi)how costs of travel are to be paid (orders 31.1 to 31.4);
vii)parental responsibility (orders 32 to 35.3);
viii)provision of information (orders 36.1 to 36.4); and
ix)restraints on both parties (orders 36.5 to 36.55).
As I observed during the hearing, and as where necessary I further examine later in these Reasons, although the Court understands the context in which this unrepresented mother seeks such overly prescriptive orders, issues of the way orders should be described; issues of enforceability (in either Australia or USA) that arise, and the general desirability to make orders less likely to lead to further conflict and proceedings, all must be considered in what orders are made within the statutory framework under the Family Law Act 1975 (“the Act”), that applies to the determination I am required to make. Furthermore, in the absence of any tested or available expert legal evidence about the family law provisions which apply in the State of State E, an Australian Court should be very cautious in assuming principles to be applied under Australian law are the same under the laws of various States in the USA.
A further significant complication now arises from the difficulties associated with international travel as a result of COVID-19 restrictions. For reasons explained at the conclusion of these Reasons, I will require submissions from each party before pronouncing how future travel should occur – so as to do the best I can to minimise the difficulties previously encountered with both interpretation and enforcement of earlier Orders.

Statutory pathway

As I sought to explain to the unrepresented mother during the trial, the law I am required to apply in the determination of what is now a contested residence case, is the law of Australia and the principles and objects framed in the Family Law Act 1975.
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Act and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
In this respect, the mother’s Affidavit filed 2 December 2019 contained in part submissions (rather than evidence) that, for example:
c)her legal advice was the “Hague Convention” mandated the children remain in Australia “regardless of their citizenship and regardless of their temporary Visa status” (see paragraphs 15 to 26 and also 36);
d)the “retention” by the father of the children on “foreign land” violated the children’s rights “as outlined in the International Rights of the Child” (see paragraph 29);
e)that the children’s USA citizenship creates some form of “right” for them to return to their “birth country” as a guiding principle without a consideration of the events in their life which caused the family to move to Australia in late 2011 for the husband (also a citizen of the USA) to advance his career;
f)the USA (and particularly City D), is a superior country to Australia in general (and Canberra particularly).
I took some of these submissions as a demonstration of the strength of this highly intelligent and articulate mother’s passionate advocacy rather than a failure to understand that the test is, on the evidence before me now, whether it is in the best interests of B and C to live with their mother in City D or with their father in Canberra.

Contextual history

Before setting out a contextual history – which does not seek to set out every detail of the relationship history – I indicate that I found both the mother and the father reliable witnesses and issues of credit do not loom large in this matter.
They are competitive parents who use, in many ways, words as their weapons. It is not necessary for me to detail at great length the numerous email exchanges – often sent in the heat of the moment and within the increasing conflictual parental environment the parents had created.
Let me make it clear however, that none of the evidence persuades me that although these parents have often communicated in an intense and impassioned manner, they did not genuinely believe that their final proposals are in the best interests of the boys and that they both love their sons dearly.
Statements of fact which follow should be construed as findings of fact.
The mother was born in City P in 1969 and the father born in City N in 1971, and the parties married in 2003.
B was born on … 2006 (and will soon turn 14 years) and shortly after his birth the father completed his studies.
The mother claims that the parents separated for about six months during 2009, which I accept. On more than one occasion during the hearing the mother referred to comments said to have been made by a family therapist during this period (Mr Q) who is said to have “labelled” the father as “abusive”. There is no probative evidence of this assertion and, even if that were the case as the mother asserts, without understanding the full context of the parental relationship at that time, such “labelling” is of little assistance at this time.
What is not disputed, is that the family decided in late 2011 for the father to take up an opportunity in Canberra. At the time the mother must have been pregnant, as C was born on … 2012 in the USA, prior to the entire family moving to Canberra in July 2012.
The mother says, and I accept, that she had genuinely supported the father’s career ambitions, including the move to Australia. However the mother says, and I accept, that it was her understanding that the family would return to the USA in two or three years. Although the family returned to the USA to connect with both maternal and paternal family members and friends, in June/July 2013 and again in August 2014, the mother’s growing unease with the certainty of the permanent return to the USA I find was a contribution to the growing tensions in the relationship.
The mother desperately missed her family and connection with her home land.
On the evidence the father projected, by his words and behaviour, a degree of ambivalence about leaving his position in Canberra and the lifestyle in Australia which he felt was providing benefits for the children. This growing impasse, I find, lead to the separation in mid-2015 occasioned, the mother says, by increasing aggressive behaviour by the father (which he denies).
The parties attempted in late July 2015 an arrangement they described as “bird nesting” where the children remained in the family home and the parents took turns in being the primary carer in that home in the absence of the other parent. This experiment did not prove successful, and the post-separation arrangements progressed without formal orders in a form of shared care before the mother commenced proceedings in July 2017, formally seeking permission to relocate.
During this period of over two years post separation the children returned for holidays to the USA in July 2015, December 2015/January 2016; July 2016 and December 2016 in the company of a parent and at times, when both parents were in the USA, time with each parent with their extended families.
The mother, who had indicated to the father by an email of 27 November 2015, her intention to move to City P, was finding it difficult to gain emotional and financial support in Australia – although she continued to work in health care for R Group until May 2017. The mother says that she was forced to live in sub-standard accommodation in a dangerous area of Canberra. The communication between the parents was tense. I have no doubt the children were well aware of the parents’ conflict. In fact, the mother further says the father “assaulted” B on 30 November 2015 and again whilst in the USA in December 2016. The father and his mother gave evidence about the conflict between the father and B on the holiday in the USA.
In the context of these uncertainties, the parents’ decision at around the time of separation to apply for permanent residential visas for each of them and the children is somewhat surprising, from at least the mother’s perspective. Permanent residential status for all family members was granted in February 2016 – and it is this immigration status which preserves the father and the children’s right to remain in Australia. It also allows the mother to live in Australia if she wished to do so.
The parties and the children’s USA citizenship is not affected.
The father, in January 2017, began a relationship with Ms F and although that relationship continued to blossom, the relationship had ended by the time of the trial before me in February 2020 – for reasons explained by the father and Ms F – in no small part exacerbated by the distractions from the continuing family law litigation.
Any faint hope that the mother retained about the father choosing to relocate back to the USA were dashed when, after she had filed her Application in Court, the father made clear his position then that he was not willing to relocate. Even though that was the father’s position, a pre-arranged private mediation took place on 20 October 2017. The mother found the mediation extremely stressful and that day the mother “enters hospital for acute trauma related to the events of mediation” (the mother’s description).
Although the mother was discharged from hospital on 6 November 2017 in circumstances where no interim orders were in existence, the conflict between the parties continued to escalate – with the mother seeking the children return to spending unsupervised time with her and the father not supporting that position because of the mother’s hospitalisation. The father informed the Child Support Agency that he was now the full time carer – and the mother’s financial position further deteriorated.
On 16 November 2017, consent orders were agreed to in these terms:
“1.That the parties have equal shared parental responsibility for the children B (born … 2006) and C (born … 2012) ("the Children").
2.That, if both parties reside in Australia or both parties reside in the United States of America:
a.Unless otherwise agreed by the parties in writing, the children will spend time with each parent as follows:
i.In Week One:
1.With their Father Mr Blake ("the Father") from 4:30pm on Sunday until the commencement of school on Wednesday (or 8:30am in the event the children are not required to attend school on a given Wednesday);
2.With their Mother Ms Kerson ("the Mother") from the commencement of school on Wednesday (or 8:30am in the event the children are not required to attend school on a given Wednesday) until 10:30am on Saturday;
ii.In Week Two:
1.With the Father from 10:30am on Saturday through to the commencement of school on Wednesday (or 8:30am in the event the children are not required to attend school on a given Wednesday);
2.With the Mother from the commencement of school on Wednesday (or 8:30am in the event the children are not required to attend school on a given Wednesday) until 4:30pm on Sunday.
b.That notwithstanding Order 2(a), unless otherwise agreed:
i.The children will spend time with the Mother on Mother's Day from 9:00am to 5:00pm;
ii.The children will spend time with the Father on Father's Day from 9:00am to 5:00pm;
iii.Where the Mother or Father's birthday falls on a day when the children would otherwise be living with or spending time with the other party, the following Orders apply:
1.If the relevant birthday falls on a school day, the children are to spend time with the party having the birthday for a period of at least three hours at a time to be agreed between the parties, but failing such agreement from after school until 6:00pm; or
2.If the relevant birthday falls on a day on which the children are not required to attend school, the children are to spend time with the party having the birthday for a period of at least five hours at a time to be agreed between the parties, but failing such agreement, from 9:00am until 2:00pm;
iv.On each of the children's birthdays each year, the party with whom the children are currently living with or spending time with is to make the children available to spend time with the other party as follows:
1.If the relevant birthday falls on a school day, for a period of at least three hours at a time to be agreed between the parties, but failing such agreement from after school until 6:00pm; or
2.If the relevant birthday falls on a day on which the children are not required to attend school, for a period of at least five hours at a time to be agreed between the parties, but failing such agreement, from 9:00am until 2:00pm;
c.That any changeovers that do not occur at the commencement or conclusion of school are to occur by the party with whom the children are currently spending time delivering them to the party with whom the children are to commence spending time per the orders.
3.That if the Father continues to reside in Australia and the Mother resides outside of Australia:
a.The children shall live with the Father in Australia.
b.The children shall spend time with the Mother:
i.For 28 days commencing 28 December 2017 during the ACT end of school year holidays in the USA.
ii.The mother will keep the father informed of where the children are travelling and their contact details during this period.
c.That for the purposes of implementing Order 3(b)(i), the Father will cause the children to be delivered to the Mother at arrivals half of the international airport at City D, State E, USA, and the Mother shall return them to the Father at the arrivals half of the international airport at Sydney, New South Wales, Australia, with the father to bear the cost of transporting the children to City D, United States and the mother to bear the cost of transporting the children back to Sydney, Australia. If practicable, the children’s flights are to be purchased as round trip tickets and the parties are to pay 50% of the cost of that total round trip.
d.The children shall communicate with the Mother via Skype, FaceTime, or other electronic communication on no less than three occasions per week (during the periods in which the children are not spending time with her per these Orders), as agreed, but failing agreement:
i.Saturday morning Canberra time at 10:00am;
ii.Monday morning Canberra time at 7:30am; and
iii.Thursday morning Canberra time at 7:30am.
e.The children shall communicate with the Father via Skype, FaceTime, or other electronic communication on no less than three occasions per week during the periods in which the children are not spending time with him per these Orders), as agreed, but failing agreement:
i.Saturday morning Canberra time at 10:00am;
ii.Monday morning Canberra time at 7:30am; and
iii.Thursday morning Canberra time at 7:30am.
f.The children shall communicate with the party with whom they are not spending time with via Skype, FaceTime, or other electronic communication on Christmas Day, the Children's birthdays, Father's Day (as appropriate), Mother's Day (as appropriate), the relevant party's birthday (as appropriate), and the Mother's Birthday as agreed, but failing agreement, at 5:00pm in whichever time zone the children are located on the relevant day.
Orders Applicable Regardless of County of Residence of the Parties:
4.That each of the parties is to inform each other as soon as practicable in the event they determine to change their place of residence.
5.That pursuant to Section 65Y(2) of the Family Law Act, the parties are permitted to take the children out a place outside Australia in accordance with these Orders.
6.In the event that the children or either of them express a wish to speak with the party with whom he/they are not currently living with or spending time with, the other party is to facilitate that communication.
7.That each party will notify the other parent of any change of email, telephone or mobile telephone number within 48 hours of doing so.
8.That each party will notify the other parent by telephone, if an emergency or otherwise via text message or email of all matters concerning the health of the children as soon as practicable, being:
a.Any illness, accident or injury suffered by the children, including any follow up treatment;
b.Any significant medical or dental treatment provided to the children;
c.Any medication the children are to take while in the other parent's care including particulars of dosage.
9.By this Order, all schools, medical or dental practitioners and organisers of extra-curricular activities are hereby authorised to discuss all matters relating to the children with both parties and to release all information concerning the children to both parties as may be requested from either of them from time to time.
10.Each of the parties are to provide the other with the contact details and qualifications of any babysitter/carer (who is not a friend or relative of the parties) for the children engaged during the time the children are with that parent. That parent must also ensure that any person who is caring for the children in the absence of the other parent is provided with a copy of C’s asthma management plan and is made acquainted with his asthma issues and the appropriate responses should an asthma-related issue occur.
11.Neither party is to say unkind or uncomplimentary things about the other to or in the presence of the child, nor cause or allow anybody else to do so.
12.Both parties be and are restrained from discussing these proceedings with or in the presence of the child.
…”

Although the holiday in the USA was prescribed in the Orders, the mother regarded it as necessary to delay the return to Australia for 24 hours because of the severity of B’s migraine. The father was unhappy with the delay.
The trial before Gill J took place over three days commencing 19 March 2018, and judgment was reserved.
The mother says she had informed the father from at least December 2017 and confirmed same prior to the trial, that she intended to leave Australia immediately after the trial. I do not accept the father was unaware of the mother’s intentions, however he may have thought it was unlikely she would leave before a decision was delivered.
At least by 23 March 2018, the father had offered the mother $1,000 for her expenses “to take the children to spend some time” with her before she left. The mother did not accept the offer, but did book the flight to the USA on 28 March 2018 – leaving Australia around 4 April 2018.
The Honourable Justice Gill delivered judgment on 4 May 2018, dismissing the mother’s application for relocation. The Orders of Gill J made provision for time between the children and the mother if, as it transpired, she remained in the USA. In July 2018, the children travelled to City D to spend time with the mother – the mother describing the visit as “emotionally challenging”. At the same time, C was suffering from a skin condition, with the mother’s firm belief being the father had not caused the condition to be properly treated. At the hearing before me the father gave evidence, which I accept, of the medical advice and treatment given. The mother, a healthcare professional, asserted the treatment was inadequate. C did recover from the condition and there is no evidence it has had any permanent effect on his health.
The mother filed an Appeal against the Orders made by Gill J, and on 12 November 2018, the Full Court (Alstergren CJ, Ainslie-Wallace and Austin JJ) delivered reasons and allowed the Appeal; set aside the Orders made 4 May 2018 and ordered a rehearing. The effect of the Orders made on Appeal was that from 12 November 2018 there were no existing parenting orders.
Although this did cause some difficulties, to the parents’ credit they were able to arrange for B and C to travel to City D in July 2019 to spend time with the mother.
It had been hoped, once the matter came into my docket for the rehearing on 8 February 2019, that an early rehearing could take place, and an Order for an updated family report by Family Consultant Ms G culminated in interviews taking place, with the mother attending personally on 5 June 2019.
An earlier trial listing for mid-August 2019 had to be vacated on the application of the mother’s then solicitors. Ultimately the mother represented herself when the trial commenced in Canberra on 17 February 2020 for three days. Unfortunately the trial could not be completed as the final witness, Ms G, was unavailable due to personal reasons and the trial finished, with parties appearing by Microsoft Teams on 1 May 2020, when the cross-examination of Ms G took place and final submissions were delivered orally by the mother and by Counsel for the father, Mr Stagg.
For completeness, I confirm that Orders were made by me on 11 October 2019 for the children to spend time with the mother in City D for Christmas 2019, and then, as the father intended to also be in the USA after Christmas Day, time with him and his parents. Again, these arrangements did not go smoothly and the Court was moved urgently to intervene, which it did with subsequent orders made on 4 December 2019. The children delayed their return to Australia because, the father says, of some concerns with the effect of devastating bush fires throughout Australia.
And finally, as if this matter has not already had significant complications to navigate, the international travel restrictions arising from the COVID-19 outbreak in both Australia and the USA, at least at the time of delivery of these published Reasons, create some further immediate uncertainties.

Family report

Experienced Canberra based Family Consultant and Psychologist Ms G had the opportunity to interview the parents and the children, and make observations, for two separate family reports:
a)on 7 March 2018 resulting in a report dated 16 March 2018; and
b)on 5 June 2019 resulting in a report dated 5 July 2019.
The benefit of this longitudinal assessment between the first interviews conducted a month before the mother had returned permanently to the USA, and the second interviews conducted 14 months after the mother had left Australia during which period the children had resided exclusively with the father is an important context.
Whilst I accept that in the first report Ms G felt unable to make a recommendation as to whether the children should live in the USA with the mother or in Australia with their father (see paragraph 133), by the second report, Ms G’s opinion had moved to being supportive of the children remaining in Australia, recommending at paragraph 117 that:
“In light of the above discussion, it seems there may be more advantages than disadvantages to the children continuing to live with their father in Australia.”
Understandably, the mother regarded the Family Consultant’s change in position as flawed, and apart from conducting a thorough and well prepared cross-examination of Ms G on 1 May 2020, the mother relied upon a somewhat theoretical critique by her treating Psychiatrist Dr S contained within her Affidavit sworn 26 December 2019.
It is appropriate at this juncture to record that the father, in the case before me, did not raise as an issue psychiatric functioning of the mother. In view of the evidence as to the assessment of the mother by Dr S (who as a result was not required for cross-examination), that position adopted by the father was a proper one.
Dr S had been treating the mother since July 2018 and since January 2019 (when the mother had obtained employment and therefore medical insurance) consultations occurred up to two times a month. The evidence of Dr S relevantly opines that:
a)After review of the records of the mother’s voluntary psychiatric hospitalisation in October 2017, the doctor described the event as “a brief reactive incident that did not impair her parenting capacities. I view it not only as a temporary reaction, but also as a constructive response and a sign of strength more than weakness to reach for additional support when she needed it”. I agree with this assessment;
b)For reasons set out in her Affidavit, Dr S summarises her position at paragraphs 28 and 29, that the family reports “fail to recognize primarily the children’s wishes, but also relevant nuance, situational circumstance, bias toward the ‘status quo’, and the very plausible misrepresentation of facts by either parent.”; and
c)I agree with the assessment, not now challenged by the father, that the mother “takes her parenting role very seriously and would provide her children with high level of care if she were given physical custody”.
It is somewhat regrettable that, although Dr S acknowledges “all history giving is subjective”, she felt in advocating for the mother it was necessary to be so critical of the family assessments when she had no opportunity to interview or observe the father or the children. Her simple statement that longer visitation would be in the children’s best interests, fails to take into account the distances involved and the need for the children’s schooling to be considered.
Nonetheless, the core assessment by Dr S of the mother’s functioning now – where she is happily residing in City D; has gainful employment and a reduction in the chronic pain she has suffered for over 15 years is accepted.
Returning now to the reports and evidence of Ms G, I record the following aspects of that evidence and cross-examination:
a)Since the preparation of her second report, Ms G had received and considered the report of C’s counsellor Ms T; the Affidavit of Dr S and the parents’ trial Affidavits. It gave her more information;
b)The material raised concerns in her view about the mother “involving the children in the dispute” and she opined that shielding the children from the conflict was an important issue. Ms G relied upon the tenor of some emails from the mother and the fact that even for the second report interview, that the mother felt a need to be highly critical of the father (see paragraph 21) about some incidents of a relatively minor nature that had occurred four years earlier, as concerning;
c)When referred to Annexure “F-13” in cross-examination by the father’s Counsel, Ms G said the email was quite inappropriate and is likely to have added to B’s stress. I agree;
d)The more recent information and emails from the mother and her observations support the father’s concerns recorded at paragraph 102 (essentially that the mother undermines his role as a parent), and Ms G believes the father’s perceptions are justified;
e)Ms G was not “overly optimistic” that parental communication would improve – in her view it had gotten worse by the time of the second report. If the children are continually exposed to the “toxic conflict”, then limiting the interactions – such as daily Skype calls – might need to occur. Ms G, opined that such interactions are “intrusive” and that the children do not need daily contact in this way;
f)Under cross-examination, even allowing for the mother’s status as an unrepresented litigant, she seemed overly focused on the first family report and decision of Justice Gill;
g)Although Ms G did not recall either party raising concerns about family violence, she accepted the mother’s proposition that if the Court finds that there was family violence, in the relationship before separation, that could have caused a negative impact on the children;
h)The distance between the parents (with, I infer, resulted in some reduction in conflict that arises from regular changeovers etc), has been a good thing for the children and has given the boys an opportunity to develop a better relationship with the father, since 2015. I agree with this assessment; and
i)Although it is an important factor that, as the mother put to her, there are 27 relatives in the USA (many who have funded trying to get them home) begging for their return, that is but one factor in this difficult matter.
Noting the mother’s concerns about the father’s health (arising from his stroke in May 2006) and the comments in the email of 29 March 2020 (Exhibit 15), Ms G acknowledged that she regarded the email as reasonable communication by the father; that she has no evidence that suggests the father’s likelihood of “incapacity” is high; that, in an attempt to allay the mother’s fears if the father was “incapacitated”, that it was unlikely, where the mother was a good and available parent, that authorities in Australia would place the child in “foster care” in that unlikely event.
I found the evidence of Ms G helpful, persuasive and reliable. When discussing other aspects of the competing proposals for residence within the matrix of the primary and additional considerations, I will refer to other parts of the evidence of the report writer as necessary.

Primary and additional considerations

I propose to now make findings about the competing proposals for residence within the matrix of the primary considerations (s 60CC(2)) and additional considerations (s 60CC(3)). In so doing I do not attempt to deal with every issue of factual dispute – many of which are historical and not necessarily a good guide as to future parental behaviour.
Also, the decision by the mother, which I accept she had telegraphed from around at least December 2017 of her intention to move back to the USA as soon as the trial finished, changed the landscape for these children dramatically. Even with the “warning” they had, it is unlikely they could be prepared for the range of emotions that would naturally flow from the mother leaving.
As a consequence however the father being required to assume the full-time care of the boys from April 2018 has meant that rather than speculate on how he might handle (and how the boys might cope) with the change, evidence is now available of effectively two years of primary care by the father. This is an important distinction because whilst the mother’s Affidavit raises a range of criticisms of the father’s conduct and behaviour before, at the time of and after separation, that behaviour needs to be now seen along with evidence available from April 2018.
Similarly, the mother’s frustration and unease about being so far away from her children and not, as she always had, been involved in the daily care and management of the boys has erupted at times in some emails which, she herself accepted under cross-examination as at times “toxic, sarcastic, belittling, insulting and abusive” when put to her – although she maintained any unfortunate emails should be seen in the context of her trying to escape an “abusive” relationship in which she describes the father as the “perpetrator”.
I rely upon, but do not repeat earlier findings made in these Reasons.

Primary considerations

The benefit to the children of having a meaningful relationship with both parents

The parents both make proposals of the children to spend time and communicate with the other parent, reflective of an acceptance that each of them is important in the lives of the children. I accept that the children will benefit from a meaningful relationship with both parents. However “meaningful” is not always the same as “optimal”, and simply stated, living on different sides of the Pacific Ocean is never going to create an optimal situation for the boys.

Need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The findings I make in respect of this factor are shaped by the reality that these parents are different and parent differently. I do not accept that the children are inherently more at risk in Australia or USA. Both countries are clearly developed nations with strongly demonstrated desires to apply the Rule of Law; support for education and health needs and recognise family values. As a result, the findings I make reflect an examination of the evidence in terms of the household offered by each parent in the country of their choice.

The father

As I examine more closely below (when considering s 60CC(3)(j)) although some incident involving the father and the mother and the children have occurred in the past, I am not satisfied on all the evidence that the father is a risk of exposing the children to physical or psychological harm. He has contributed to the parental conflict through the emails and at times curt responses to the mother’s concerns and there is no doubt the children are aware of this conflict. He has the same obligation in the future to minimise the involvement of the children in adult issues – but on balance I believe since at least April 2018, he has been better able to do that than the mother.
I agree with Ms G that he was insensitive to his requests to be involved with the boys when they were spending time with the mother on holidays, however her exclusive attitude, as I refer to below, was provocative – if not understandable.
The mother would ask the Court for example to be concerned, as she is, that the father:
a)did not deal with C’s skin condition appropriately;
b)that he underestimates the extent of her concerns if he were incapacitated;
c)that he has demonstrated, in the past, a lack of control in managing B when he has a “meltdown”; and
d)that he dismisses the importance of the children’s “birth country” and extended family across the USA.
I do not accept the mother’s submissions or fears. The father did seek to manage the skin condition with appropriate medical attention. The mother, as a healthcare professional, might have done differently but that is not the point. There is no evidence of any greater need for the father (because of his stroke 14 years ago) to be concerned about becoming incapacitated in the future than another seemingly healthy adult now. As the father himself acknowledges, some of his past management of child behavioural issues could have been different – and he says, and I accept, his parenting experience over the last two years shows him different strategies. I acknowledge he appropriately engaged C in counselling within months of the mother returning to the USA.

The mother

I would not find, nor does the father assert, that if the children were to live with the mother that they would be exposed to physical harm, abuse, neglect or family violence.
The mother must share responsibility for the ongoing parental conflict through many of her emails. Whilst I make allowance for the fact that since April 2018 she has relied upon information from the children through daily (mostly Skype) sessions and she asserts less than timely responses or information from the father at times, an examination of many of the mother’s emails show a lack of respect towards the father; a subtle lack of support for some of his “on the spot” parenting decisions about medical treatment or care arrangements (e.g. when the children were cared for by his partner) and silly, at times, immature “name calling” – e.g. “you silly fuck”, “narcissist”.
Furthermore, her insistence on “her time” to the exclusion of any involvement by the father is not an entirely balanced perspective.
That she chose to involve B in the discussion when B told her to stop is not justified one bit by her desire, as she expressed it to the Court, that it was important for B to see his father as an “abuser”. In fact, it is the clearest example of the mother’s continuing attitude to the father and one which, when shaped by her in this way, shows her inability to contain her emotions at times and thereby exposes the children to psychological harm. This is a significant concern that Ms G opined.

Additional considerations

Views expressed by the children

Caution must be exercised in applying determinative weight to what the children are saying to the parents as it is likely (and the mother fairly acknowledged), that the children’s exposure to and awareness of the unresolved issue of which country they live in (and each parent’s investment in that decision), makes it more than likely that the children are prone to tell a parent what they may perceive that parent wants to hear.
For this reason, the views expressed to Ms G in the interviews conducted by her on 5 June 2019 are likely to be the most reliable – but are still views and feelings expressed by children at the time aged nearly 13 years (B) and seven years (C) who are at quite different development levels. B’s interview recorded at paragraphs 62 to 73, were expressed by a child who presented as “calm and articulated his views competently”. He expressed a view that:
a)he wished he could see his mother more often;
b)he likes the routine of living with his father;
c)was “non-committal” as to his views of where to live, including “if I say I want to live here (Australia) I will hurt everyone there (in the USA) and vice versa. I think C wants to live in America”; and
d)wished “everyone to be happy”.
C’s views are recorded at paragraphs 74 to 80 and he presented as “fidgety and restless” giving brief responses, which Ms G says is usual for a child of his young age. He expressed the view that:
a)he likes spending time with his mother “because I love Mamma” and that he feels “worried when Mum is sad” and that “she cries sometimes”;
b)although he said he feels “happy” spending time with his father “sometimes I feel weird”, further saying he would be happy if he lived in the USA; wishes to go “for winter because there is snow” and that “I don’t want to go to school in America, I just want to live there”; and
c)he wished he could “live with Mum”.

The age of C, coupled with the fact (confirmed by Ms T, his counsellor in her evidence) of him missing his mother, make the way he expresses his feelings entirely understandable.
However unlike B, C is, as a result of his age and maturity, less able to understand the effect of living with the mother and seeing less of his father. I accept however that unlike B, C has consistently and strongly asserted he wants to live with his mother.
Whilst it was not challenged that Ms G inaccurately recorded the children’s views, under cross-examination on this section of her report, Ms G further opined that:
a)in the first report, B did not express his wishes in the same manner as he does now. The mother indicated she believes B, at that time, held a “fear about hurting his father’s feelings”. Ms G felt B now was more positive about Australia and his father’s care (having experienced it) and not so positive about the USA – but still misses his mother “greatly”;
b)by August 2019 (see “M02”) B was expressing concern about leaving his school and friends – a perfectly normal reaction;
c)C is at an age that he is not able to truly comprehend the effect of the decision, however he misses his mother. Ms G assessed him as more easily influenced, but I do not find the mother has attempted to do so. He is aware of her level of sadness however, and his emotional connection with his mother would make it difficult, in my view, to be seen not to support her position.
When two highly intelligent and caring parents have proved unable to determine where the children should live, we should not be surprised the children, particularly B, feels divided. I do accept the evidence of Ms G that B’s feelings overall reflect that, by the time of the second interviews, he was more comfortable living with the father than was his perceptions in March 2018.

Nature of relationships

The primary relationships each of these delightful boys are their parents. I find that at March 2018 it is likely both boys’ relationship with their mother was the stronger one – however, through the father’s dedication to parenting these children since April 2018, I would not now differentiate the quality, warmth and strength of the bond each parent has with each child.
Much of the mother’s case referred to the 27 relatives the children have in the USA – who love them and wish to be involved with them. I heard from the mother’s brother Mr U, who fairly acknowledged because of where the extended family live around the country getting together regularly is not easy or a regular occurrence. Certainly I accept that if the children lived in the USA, they would likely see the extended maternal family and family friends much more often. However, no relatives live in City D and to that extent, where no relatives of the father live in Canberra, things are not much different. The father’s parents live in City N USA, and the father has in the past, and intends in the future, to facilitate the children spending time with them wherever they live. I accept the mother would, if the children live with her, not be an obstacle to the contact with the paternal grandparents.
The mother says the volume and strength of friends and community support for the boys in America, is greater than the father can offer the children in Australia. On the evidence presented, this is difficult to assess – although of course the father spent the first approximately 43 years of his life in USA – and the mother the first 41 years.
However it needs recognition, that B was nearly six years of age and C was a baby under six months when the family moved to Australia in July 2012. The history means that nearly most of B’s life has been spent in Australia and attending schools and developing peers in Canberra. Really all of C’s life has been spent here. Although the mother gives evidence of family friends and children who B maintains contact with, it is reasonable to find, and I do, that the boys’ most significant peer friendships are now in Canberra. This is a factor which, by his own words, B is acutely aware of and I regard as important.

Parents taking opportunities to spend time, make decisions and maintain the children

As far as the evidence takes it, I am satisfied that even though challenged by the poor and at times ineffective parental communication coupled with the tyranny of distance created since April 2018, each parent has done their best to maintain contact, making decisions about the children and maintaining them (factors referred to at s 60CC(3)(c) an (ca).
I will deal with s 60CC(3)(d) later in these Reasons – the effect of change.

Capacity and attitude to parenting

I am satisfied both parents have the capacity to provide for the emotional and intellectual needs of the children. Both the mother and father are educated, articulate and value education. Although the mother, by her nature and through the role she has played from birth (at least until April 2018) has been more emotionally attuned to the children, on my assessment in many aspects the father has demonstrated a significant development in his understanding and management of the children’s emotions. He has been tested and in my view has shown, when required to do so, the capacity which the mother says he never had and still does not possess, to meet the children’s emotional needs. I disagree with the mother.
Sadly, I feel compelled to find that on all the evidence, including the mother’s self-prepared Affidavit and her cross-examination, the mother does believe she is the “superior” parent and that the children’s ultimate development will be less positive if they remain in the care of the father. Whilst occasionally she was able to concede the father had “done alright” and done some good things for and with the children, the mother nonetheless is defined by her role as the parent who has nurtured these children. She says she has done so for many years in a country not of her choice and in a relationship she regards as abusive.
Whilst I comfortably pay tribute to her commitment and dedication to her children, and whilst in many ways she has done the “hard yards” and feels that she should be recognised, acknowledged and even “rewarded” – the fact remains that the test to be applied is what is in the best interests of the children now, on the evidence.
I do not discern any significant difference to the attitude to parenting – although as different parents, of different genders and interests, they parent differently. The mother generously acknowledged the shared interest the father and the boys have in “climbing” and outdoor activities – many of which, living in State E where Winter snow is abundant, the mother can and would hope to share with her sons as well.

Maturity, sex, lifestyle and background

It is a theme of the mother’s case that weight must be given to the children returning to their birth country. However, as I have already noted, cognitively the boys have spent more of their life in Australia then the USA. Thankfully they are able to enjoy the benefits of American citizenship as well as permanent residency in Australia. This case does not hinge on the quality of the snow in State E or of the beaches on the South Coast of New South Wales. If they live with the father they will, as time practicably permits, be able to enjoy the wonderful American lifestyle during holidays, and vice versa if they live with the mother in City D and visit the father over holidays in Australia.

Family violence

The mother says throughout the relationship but, it seems, particularly during the period leading up to final separation and thereafter, the father subjected her (and at times the children) to family violence.
The term “family violence” under the Act is defined at s 4AB(1) and means:
“…violent, threatening or other behaviour by a person that coerces or controls a member of the person's family… or causes the family member to be fearful.”
Examples of behaviour that may constitute family violence include, under s 4AB(2):
a)“an assault” (ss (a));
b)“repeated derogatory taunts” (ss (d));
c)“denying the family member the financial autonomy that he or she would otherwise have had” (ss (g));
d)“unreasonably withholding financial support” (ss (h));
e)“preventing the family member from making or keeping connections with his or her family, friends or culture” (ss (i)).
I refer to these examples as they appear to be the areas specifically relied upon by the mother in her case. I now choose to deal with them sequentially:
a)There is a dispute of what occurred at V Street between the parents – although shouting from both sides occurred. I accept C (only very young) was present. I cannot be satisfied the father put his hand through the wall as the mother alleges, but I am satisfied that the father was upset, and his behaviour caused the mother some fear. No actions were taken after this event to obtain any protection orders from a local Court. The two incidents involving the father and B, at best, was strong physical restraint when the child was having a “meltdown” and tired. The father concedes he could have handled the situation better. I agree. The incident at changeover involving C, whilst regrettable and did neither party credit, was a one-off on the evidence;
b)Derogatory taunts. The emails I have seen frankly include more examples of derogatory and hurtful remarks made by the mother towards the father than by the father towards the mother;
c)I accept that at separation, after the period of “bird nesting”, the mother was under more financial pressure than the father. After living for a time with a friend, she moved into unit accommodation which was inferior and, it seems, in an area where a least three criminal events occurred and police were involved. The mother not unreasonably feared at times for her safety and that of the children – but still, I find, rejected the father’s offer in late 2017 to “swap” houses. This was at a time when the mother had confirmed her intention to return to the USA after the trial;
d)The mother gives evidence that her decisions to support the father meant her own career development was put on hold but, even if true, the mother worked independently for some time and retained some financial autonomy;
e)Certainly the mother claims – as her Affidavit makes clear – that the father’s actions in resisting the boys living primarily in the USA has had the effect of making it more difficult for her and her sons in maintaining, keeping and making connections with her family, friends and culture. I do not agree. The mother chose voluntarily to come to Australia and supported applications for permanent residency. Whilst I accept she always expressed a desire to return to the USA – which desire post separation manifested into her intention and finally decision to return to the USA, the mother and children have visited the USA regularly over the years and the mother, as best she could whilst living in Australia, maintained electronic contact with family and friends. The father did not seek to restrict her choices – just ultimately her wish to relocate the children.

Making an order least likely to lead to further proceedings

The litigation journey for these parents – now involving two full hearings and an Appeal – has been costly and emotionally draining. Whilst I do not anticipate either parent has any great desire to continue to litigate, because of the stakes involved, one of the parents will be bitterly disappointed. Neither parent indicated, if the decision was not as they hoped, that they would move to the country the children will be ordered to live with the other parent.
If that is not to be the case, then I could envisage further negotiations and perhaps proceedings, to provide parenting orders if the parents lived in the same country, might be commenced.
Sadly the capacity for these overly literate parents to dissect words means that highly prescriptive orders might be required. The risk with such an approach (as evidenced by the Court attention required when making and then revisiting Orders for the Christmas holidays last year), is that both parties have shown a reluctance to be flexible and to look at the tenor (if not the exact words) of the order. This simply means no order, however carefully crafted, is likely to be safe from attack by either of these parents – unless they put down their written and oral swords once the decision is made.

Discussion

At paragraph 114 of the most recent family report, the Court expert said, and I agree and adopt that:
“114. In considering the two options before the Court, that the child live with their mother in the USA or with their father in Australia, as discussed in the previous Family Report, neither arrangement is wholly satisfactory, because it requires that the children live without day-to-day, regular time with one parent. This necessarily involves grief to the children of the loss of time with one of their parents. At this time, there appears to be some advantages for the children continuing to live with their father in Australia. This arrangement provides stability and continuity of parental care, schooling and peer friendships. The children do not appear unduly negatively affected by their living in Australia in the absence of their mother, and the father seems to have facilitated regular contact between the children and their mother.”
Section s 60CC(d) requires the Court, as one of the factors, to consider the likely effect of any changes in the children’s circumstances.
Lest the Court be accused of beginning from a “status quo” of the children now living in Australia such that the mother has some onus to establish a move now to America, I categorically dismiss that as the test or principle to be applied. The test is what is at this time in the best interests of C and B – who both parents sensibly agree should not be separated, and should live together.
The mother contends that she agreed to come to Australia on a temporary basis and she stayed and “stuck it out” as long as she could, and that she felt she had no choice but to return to the USA. I accept she is gainfully employed and happier living in her homeland with easier access to family and friends. I recall vividly her emotional heartfelt plea that “I just want these children home for a few years” based she asserts on her belief that:
“the father is the only person on this plant who believes the children should live in Australia.”
Sadly for the mother, on the evidence of this case before me, I also believe it is in the best interests of the children that they should live with their father in Australia.
I rely on findings already made and accept that the case is finely balanced. I accept the impact of my decision on B is likely to be less than C. However the father has clearly demonstrated his capacity to assist the children to cope with this decision, now finally made.
I cannot expect the mother would easily be able to hide her disappointment and sense of unfairness from the children. However as B asked her to do in his email, so must I ask the mother to try and not let the children feel this is all the fault of the father.
I propose to order the parents have equal shared parental responsibility – an Australian legislative concept – because I believe despite the communication difficulties, it is in the best interests of C and B that both parents be involved in major long term decisions. The mother has much to offer the father in such decisions. Hopefully with issues of schooling, faith and the like not seriously in issue, any major – and I repeat major – issue relating to their health can be negotiated once (if required) appropriate medical advice is offered to both parents.

Form of orders

At the time of the final submissions on 1 May 2020, no evidence was offered to the Court as to requirements and restrictions relating to overseas travel – both from Australia and into Australia.
Furthermore, whilst it would not be unreasonable to take judicial notice of the fact that we live in very uncertain times relating to international travel, the Court will require to hear further submissions and receive further evidence about, at least:
a)the ability for the children and an accompanying person (if required) to travel from Sydney to the USA for some of the Canberra end of term four school holidays;
b)the costs of travel and available flights – noting again some Australian media reports suggest even if flights are available, there are increased costs;
c)whether, and how if necessary, exemptions permitting to travel from Australia are available – assuming, as is the Court’s intention, that the children spending time with the mother will be in accordance with a Court Order;
d)what are the restrictions, including quarantine if necessary, that apply for entering the USA; and
e)in respect of the return journey from the USA to Sydney, the Court would require evidence of similar issues – namely the need to quarantine in Australia; costs of doing so and the time needed to quarantine. Also, as limited flights may be available, dates for return may not be fixed, leaving issues about how the children can be certain to return before the start of the 2021 school year.
These issues are extremely important as, even if travel for Christmas holidays this year can be facilitated, the mother who will by then not have spent any significant time with the children for 12 months. The Court identifies the children’s need to do so.
Although this may not be an option suitable to the mother, she may contemplate herself travelling to Australia to spend time with the children – but issues as above are all likely to arise if she sought to do so.
I am acutely aware that even when no travel restrictions applied for the Christmas 2019 visit by the children to City D, the Orders still did not resolve disputes. Ms G suggests that these parents may benefit from highly prescriptive orders.
Before the Court feels comfortable in pronouncing orders about travel, I regret that it is necessary to take further evidence and receive further evidence strictly limited to the matters now set out.
I propose to list this matter towards the end of September 2020, but will direct the parties (considering the mother’s overseas location) to inform the Court whether 2.00pm on Friday, 2 October 2020 is suitable. The parties can appear by Microsoft Teams.
A further hearing date at that time would allow the parties to gather the necessary evidence; undertake some prior negotiations at least in respect of arrangements for this year and, if they are not able to resolve the form of order for this year, then the directions I make as appear at the commencement of these Reasons should be complied with.
I see no impediment, at this time, in making final orders that the children are to live in Australia with the father and that the parents have equal shared parental responsibility. I do so.
When I have heard further on the major issue of travel, I will then pronounce final orders in respect of time and communication between the children and the mother, as well as dealing with a range of collateral issues that the form of orders sought by the parties at the hearing identified.

I certify that the preceding one-hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 20 August 2020.

Associate:

Date: 20 August 2020

APPENDIX ONE

That all extant parenting Orders in respect of B (born… 2006) and C (born … 2012) (the Children) be discharged.
That Comprehensive Orders for Communication, Travel/Accommodation, Travel Financing (specific only to the current matter of Residency, only within the scope of current proceedings and where not otherwise addressed under specific scenarios), Parental Responsibility, Restraints, are submitted once at the end of this document rather than at the end of each possible scenario but are intended to apply to all possible Scenarios, Outcomes and Orders

That the Mother be permitted to relocate the residence of the Children from Canberra, Australia to City D, State E, United States of America forthwith
That consequent upon the success of the Mother’s Application toward Order 3, the parties each be restrained from relocating the residence of the Children away from City D, State E, United States of America, without:
4.1The written consent of the other party; or
4.2An Order of a Court of competent jurisdiction pursuant to the Family Law Act 1975 (Cth).
That the Children’s relocation / change of residence to live with the Mother in the USA commence during the second week of the Australian gazetted Term two holiday - July 2020.
That from the date of their relocation onward (with the exception of July 2020 at which time the children would be relocating), the Children spend time with the Father as agreed in writing, but failing agreement as follows:
6.1During the City D Summer school holidays (mid-June through late August starting 2021, roughly nine weeks), for up to five weeks (including travel time) in either Australia or the USA at the Father’s choice of location.
6.1.1That the dates of travel are to be at the father’s election in years ending in an odd number and at the mother’s election in years ending in an even number or zero (except for 2020 during wherein arrangements will depend upon the Final Orders made because the children may be relocating); that if from 2021 onward, the decision is for the children to travel to Australia, both Parents shall put forth sincere effort to have the dates of the Children’s visit correspond with the Australian Term 2 (July) school holiday such that they can visit with their Australian friends;
6.2During the City D Winter school holidays (typically two weeks, from the Friday before Christmas and ending the 2nd week of January) for an up-to-five week visit with the Children in the USA.
6.2.1However, within the Father’s visit to the USA, the Children’s two-week school break shall be divided evenly (week about) such that the Father spend the week including Christmas Day (Week One) with the Children in odd- numbered years and the Mother spend Week Two (typically New Year’s Eve into January) of the school break with the Children in those odd-numbered years. The even-numbered years, then, shall have the Children with the Mother for Week One including Christmas Day and with the Father for Week Two. This arrangement will best facilitate each Parent’s ability to visit family or travel during the time that most USA residents are also on holiday and available for meaningful visitation.
6.2.2That for Order 6.2, the Father may choose any five-week block of time either leading up to the school break or extending past the end of the school break but he shall not seek to alter the shared-care arrangements for the two-week period that the Children are off from school around Christmas;
6.2.3That for Orders 6.2 – 6.2.2., when the Children are not off from school, the Father is to ensure the Children attend to their schooling and after-care arrangements where applicable;
6.2.4That for the purpose of Order 6.2 – 6.2.3, the arrangement for the Children to spend their Christmas holidays in the USA shall remain in effect as long as the Paternal and Maternal grandparents are living. The Father and the Mother shall both put forth sincere effort to facilitate the Children’s time with their grandparents and respective families over the holiday season.
6.2.5That should both Parents and Children be in the same location for Christmas Day, the Children shall:
(a)spend Christmas Eve from 3pm – 9pm with the non-custodial Parent;
(b)On Christmas morning, the Children shall call, Skype/ Facetime/Chat with the non-custodial Parent between 9am – 12pm City D time;
(c)The custodial Parent shall attempt to facilitate (through the other parent only) communication with the Children’s extended family on Christmas morning between 9am-12pm City D time;
6.2.6That upon the inevitable and eventual passing of the Children’s four grandparents, either the Father or the Mother may seek to modify this Order such that the Parents/Children may choose to spend alternating Christmas Holidays back in Australia or another agreed-upon location. With this and after the passing of the children’s grandparents, the proposed week-about arrangement (school closure for Christmas Holiday) may, likewise, be re- negotiated with the input and consideration of the children’s wishes and best interest.
6.3In addition to the time provided for in Orders 6.1 – 6.2.6 inclusive, in the event the Father is in City D, the Children may spend a maximum of three weeks per occasion with the Father, provided that:
6.3.1The time does not occur over the City D Summer or Winter school holidays for which time has already been provided for under these Orders;
6.3.2The Father is to give the Mother not less than four weeks (28 days) written notice of his intention to be in City D and spend time with the Children and the dates that the Children will spend with him;
6.3.3If the Mother has already made plans/travel/event attendance/family visitation or other arrangements prior to receiving notice of the Father’s request for visitation with the Children in the USA, the Mother’s plans for the Children will take precedence and priority over the Father’s proposed
(a)The Mother, to whatever extent possible, is to produce reasonable evidence (correspondence, bookings, etc.) that the plans were, in fact, established prior to the Father’s request;
(b)Both Parents shall put forth sincere attempts to reach a solution that best serves the interest of the children. Neither parent shall pressure, harass, or otherwise attempt to coerce the other parent into change. In good faith, neither parent shall involve family/friends/the Children in advocacy of their personal preferences;
(c)If an agreeable solution/change of plans can be reached, the Father will assume any cost associated with change to the Mother’s established plans;
(c)Any such circumstance – whether resolution is achieved or not – shall never constitute precedent for any future similar situations.
6.3.4That for Order 6.3, the time may include either Spring Break (one week around Easter) OR Thanksgiving Holiday (a four-day weekend in November) but not both. Should the Father spend time with the Children over Easter/Spring Break one year, he may not, then, spend the same school break with the Children the following year; if the Father spends Thanksgiving with the Children one year, he shall not, then, seek to spend the next Thanksgiving with them;
6.3.5During the children’s time with the Father, the Father will take the children to their usual day-to-day activities, including school and extracurricular activities.
That if/when the Children are in the care of one Parent for more than a three-week period then after the initial three-week period, the other Parent may request an opportunity for physical time with the Children that is brief (maximum of two days with one overnight), specific (i.e. “I’d like to take the children out to dinner), respectful of the custodial Parent’s and the Children’s right to meaningful time together without unnecessary interruption, with the Children’s wishes and best interest as priority, and provided with a minimum of 48 hour’s notice of the request. The requesting (non-custodial) Parent is never to make the request or any promises directly to the Children as this inherently forces Children to “chose” between Parents.
7.1That for Order 7, the non-Custodial Parent shall make the request once and only once and shall accept the decision of the custodial parent as the final decision. The non-Custodial Parent shall then refrain from harassment, coercion, accusation, or threats in further attempt to alter the Parenting time. In return, the Custodial Parent shall consider, always, the best interest of the Children an put forth sincere effort to facilitate visitation with the other Parent if the Children so desire and if it does not otherwise alter previously arranged plans
7.2In regard to Order 7, it shall be considered unreasonable, not in the Children’s best interest, hostile and disruptive for one Parent to insist on seeing the Children within only hours or days of the Children’s transfer to the other Parent and shall accept that the Children are in the care of the other Parent for a three-week period without disruption. However, Order 7 shall also specifically support open, unrestricted electronic/telephonic communication (outlined at end of document) with the encouragement and support of the custodial Parent
That cited open, unrestricted communication between Children and Parents shall be facilitated as outlined at the end of this document and apply to all possible Parenting Orders.