KERSON & BLAKE

[2019] FamCA 820

FAMILY COURT OF AUSTRALIA

KERSON & BLAKE [2019] FamCA 820

FAMILY LAW – CHILDREN – Interim – Where there is dispute as to what Christmas holiday time the children should spend with the mother residing in the United States

Family Law Act 1975 (Cth)
APPLICANT:	Ms Kerson

RESPONDENT: Mr Blake

FILE NUMBER: CAC 1154 of 2017

DATE DELIVERED: 11 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 11 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms A Prest
Campbell & Co

THE RESPONDENT: Self-represented

Orders

1. That until this matter is determined by Final Hearing listed for 17 to 19 February 2020 (inclusive), the children, B born … 2006 and C born … 2012 (“the children”) live with the father.

2. That the children shall spend time with the mother in the United States of America (“USA”) from 21 December 2019 until 14 January 2020 (inclusive of travel).

3. That for the purpose of Order 2 above:

   a)the mother shall be responsible for the cost of the children’s travel from Sydney, Australia to the USA and from the USA to Sydney, Australia;

   b)within twenty one (21) days of the date of these Orders, the mother is to advise the father of the airport she nominates for the children to arrive in the USA being either City L or City M;

   c)within twenty one (21) days of the date of these Orders, the father is to advise the mother of:

   i.the departure airport he nominates for the purpose of the children’s return travel to Sydney, Australia being either City L or City M; and

   ii.the date on which he proposes to fly with the children to Sydney, Australia with this date not to be before 14 January 2020; and

   d)within seven (7) days of the date of the father nominating his proposed travel date and departure airport, the mother will nominate and arrange for the children’s round-trip tickets and the father’s ticket from the USA to Sydney, Australia (being the same flight as the children’s return flight) to be held by her chosen airline for a period of 48 hours (“the hold period”) and the mother will notify the father immediately upon arranging for the tickets be held that she has done so and the mother will notify the father of:

   i.the reference number for the ticket-hold; and

   ii.the airline and contact telephone number.

   e)within forty eight (48) hours of the mother notifying the father of the matters provided in Order 3(d) above, the father will contact the airline and confirm and pay for his return ticket.  The father will notify the mother immediately once he has paid for his ticket and the mother will confirm and pay for the children’s round-trip tickets within the hold period; and

   f)subject to any conditions of the relevant airline, the children will travel from Sydney, Australia to USA as unaccompanied minors.

4. That the father will be responsible for the cost of any travel from City D, State E to City N for the purpose of spending time with the children’s paternal grandparents and from City N to the father’s chosen international departure airport.

5. That for the purpose of Order 4 above, the following Orders apply:

   a)Within fourteen (14) days of the date of these Orders, the father will notify of the date on which he proposes the children will travel to City N being not before 14 January 2020;

   b)No less than thirty (30) days prior to travel, the father will provide to the mother copies of the children’s airflight tickets from City D, State E to City N;

   c)The mother will do all things necessary to ensure the children are on their flight from City D, State E to City N; and

   d)The children will travel as unaccompanied minors from City D, State E to City N.

6. That the children spend time with the mother in Australia as agreed between the parents when the mother is in Australia for the Final Re-Hearing listed for 17, 18 and 19 February 2020.

Parental responsibility

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

2. That subject to Order 9 hereof, in the event Order 7 of these Orders requires the parties to make a joint decision on a major long-term issue concerning either or both of the children pursuant to Section 65DAC(2) of the Family Law Act 1975 (“the Act”), the parents are to communicate with each other directly in respect of that issue.

3. That in the event of a medical or other emergency concerning the children or either the mother or the father, the parents be at liberty to nominate an agent to communicate with the other parent and relevant third parties (such as treating practitioners) on their behalf with respect to their obligations under Order 7 for any period in which either parent is in transit or otherwise incapacitated and therefore uncontactable.

Facilitation of parent/child communication

1. That both parents ensure that the children have access to working computers or tablets to enable the communication provisions of these Orders to be complied with, with those devices to:

   a)be set up with relevant communication software including Skype or FaceTime, Hangouts and email;

   b)have appropriate parental control devices installed; and

   c)be logged into the child’s personal Skype, FaceTime or other account and/or software (not the parent’s account) for their communication with the other parent.

Travel

1. That pursuant to s 65Y(2) of the Act, the parents are permitted to take the children to a place outside Australia in accordance with these Orders.

2. That the parents can only travel to a non-Hague Convention country with the written permission of the other parent.

3. That the parents do all acts and things and sign all documents necessary to ensure the children all have current passports at all times.

4. That the children’s passports are to be held by the parent with whom the children are primarily living pursuant to these Orders, or, in the event an equal time arrangement is in place, with the mother in years ending in an even number and the father in years ending in an odd number.

Exchange of information

1. That each parent will notify the other within forty eight (48) hours of any change of:

   a)their residential address;

   b)person/s living in their residential address; and

   c)their email, telephone, or mobile telephone number.

2. That each parent will notify the other by telephone, if an emergency, or otherwise via text message or email message 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, psychological or dental treatment provided to the children; and

   c)any medications or supplements the children are to routinely take while in either parent’s care, including particulars of dosage, and details of the health practitioner that prescribed the mediation and if there was no prescription by a health practitioner, then written communication from the parent who decided to administer the medication as to why the medication was required.

3. That by this Order, all schools, medical, psychological or dental practitioners and organisers of extra-curricular activities are hereby authorised to discuss all matters relating to the children with both parents and to release all information concerning the children to both parents as may be requested by either of them from time to time.

4. That for as long as the child C is determined to have asthma by an independent medical professional:

   a)the parents are responsible for ensuring that C has an asthma management plan in place that is reviewed at least yearly by an independent medical professional; and

   b)any person who is caring for the children in the absence of the other parent is provided with a copy of C’s current asthma management plan and is made acquainted with his asthma issues and the appropriate responses should an asthma-related issue occur.

5. That any person who is caring for the children in the absence of the other parent be provided with any other medical or health related information relevant to the children at that time.

6. That the parents are to advise any educational or child care facility used for the children of any allergy or other relevant medical information, prior to the children attending at any such facility.

Restraints

1. That both parents be and are restrained from:

   a)saying unkind or unpleasant things to or about the other parent, their family or household, nor permit or encourage others to do so or otherwise involving the children in any conflict between the parents;

   b)communicating with each other unless that communication is necessary to facilitate the implementation of these Orders; and

   c)implementing dietary, food or supplement regimes or restrictions for the children that are not at the recommendation of a medical provider or previously discussed with a medical provider.

Trial directions

1. That these proceedings be set down for Re-Hearing for not more than three (3) days commencing at 10.00am on 17 February 2020 in the Family Court of Australia at Canberra.

2. That the mother file and serve by no later than 30 November 2019:

   a)one (1) consolidated Affidavit of evidence in chief; and

   b)one (1) affidavit of each witness intended to be relied upon at the re-hearing.

3. That the father file and serve by no later than 20 December 2019:

   a)one (1) consolidated Affidavit of evidence in chief; and

   b)one (1) affidavit of each witness intended to be relied upon at the re-hearing.

4. That each party file and serve on each other no later than 7 February 2020 a case outline setting out:

   a)a precise minute of the final orders sought, including alternatives;

   b)a relevant chronology; and

   c)a list of Affidavits and Applications and/or Responses intended to be relied upon at the re-hearing.

5. That these proceedings be adjourned for Case Management Hearing at 9.30am (Queensland time) on 24 January 2020 in the Family Court of Australia at Brisbane for the purpose of:

   a)considering whether there is anything that needs to be responded to arising from the father’s material; and

   b)whether any witnesses relied upon by either party who are overseas and unable to attend personally, are to give evidence by electronic means.

6. That the parties have leave to appear by telephone on 24 January 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   a)They shall each telephone … by 9.25am (Queensland time) on 24 January 2020;

   b)They shall each then enter the pass code …; and

   c)Hold the line until the Court is ready to connect and proceed with the matter.

IT IS NOTED:

A.That for the purpose of Order 6 above, the mother shall provide the father with details of her intended arrival and departure dates prior to the Final Hearing.

B.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. Today is an interim hearing that relates to, effectively, a single issue and that is what time should the parties’ children, B, who is now 13, and C, who is seven and a-half, spend effectively with each of the parents for the Christmas school holidays, which, for the school aged Canberra-based children, commences on 20 December 2019.  In respect of C, he returns to school on 3 February 2020 and for B, he returns the following day, 4 February 2020.

2. The issue in dispute is complicated by the history of this matter, which I do not need to go into in any great depth, save to say that the parties had a trial before Gill J in Canberra, effectively, where the mother sought to relocate with the children to the United States.  His Honour, in May 2018, made orders and published reasons in which he refused, effectively, the mother’s application to relocate with the children.

3. The mother filed an appeal.  At some time after the filing of the appeal, it seems, the mother, as she had indicated to the Court would be the case, relocated back to City D, State E in City D, State E and she has continued to live in the United States since that time.  I note for context that both the mother and father and the children were all born, it seems, in the United States of America.

4. The Full Court on 12 November 2018 delivered its judgment in which it set aside in its entirety the orders made by Gill J, for the reasons it published, and directed that the case be re-heard.  A re-hearing is a hearing de novo.  The Court has not read any trial material filed as presented to Gill J.  Subsequent to the matter coming into my docket, I ordered an updated family report and that report has been prepared by family consultant Ms G.  She will be required for cross-examination.

5. The trial was originally set to take place in August 2019.  However, for reasons which I do not need to explore today, the mother was unable to participate as an unrepresented litigant in the trial and it was necessary for the trial to be adjourned.  New dates for trial have been set to commence in Canberra for three days on 17 February 2020.

6. One of the results of the decision of the Full Court made in November 2018, setting aside all the orders of Gill J, were that, in fact, there have now been no orders in place at all in relation to a range of matters, many of which may have been agreed to but, nonetheless, there are no orders in place at all.  To the credit of the parties, it seems that after the delivery of the judgment of the Full Court, the parties have been able to compromise, although that would not, I suspect, have been always an easy exercise, on travel arrangements and holidays for the children with their mother in the United States or otherwise.

7. I am told and accept that in respect of the 2019 school holidays, the children spent the Easter school holidays equally with the parties, with one week with the mother taking place in City O.  The children spent the month of July 2019 with the mother in the United States.  The children remained in Australia for the end of term three (September/October school holidays) and, as I indicated, a dispute arises as to the only other school holiday which is to take place before the trial in February 2020, namely the upcoming Christmas/New Year school holidays.

8. The competing proposals of the parties are shaped by a number of different personal wishes and their perception of the children’s best interests.  Of course, my decision, as for every parenting order, must be shaped by what is in the children’s best interests, not the understandable needs, demands or requests of these loving and caring parents, of which both the mother and father in this case are aptly described.

9. It is agreed that the children will spend part of their Christmas school holidays in the United States.  The parties accept that, bearing in mind when school finishes, it would not be possible to leave Australia much before 21 December 2019, although that may depend on flights availability.  The issue really in dispute is when should the period of time that the children spend with the mother end and the time with the father commence.

10. The mother’s proposal is that the children leave her care in City D, State E on 18 or 19 January 2020.  She has no objection to the children spending time with the paternal grandparents in City N.  It is apparently a short flight.  The father’s intention would be to spend time, as well, with his parents in City N, and the children, before returning to Australia.

11. The father’s articulated proposal was that the children come into his care on or about 10 January 2020 in the United States, in City N, and that thereafter, he would spend time in City N and, as it transpires in a more recent submission only brought to the attention of the Court today, had hoped to be able to enjoy a period from about 19 January 2020 in Australia at a coastal holiday vacation, some travel distance from Canberra.  I have indicated a level of disappointment that the Court was not informed of that possibility earlier, but I understand that it is a tentative arrangement and I make no adverse inference about the father’s late acknowledgment to the Court of what he hoped to be a possibility.

12. I have discussed with the parties, as the transcript will show, how travel arrangements may be funded.  On an interim basis today, the travel arrangement orders which I will make do not necessarily reflect what might be final orders.  Such a consideration is a matter for the trial and will take into account where the children are required to live; what time they should spend with the other parent with whom they do not live and, to some degree, the respective capacity of the parties to afford to pay travel expenses, and their otherwise contribution to the day-to-day care needs of the children financially.  They are all matters for trial.

13. Before providing to the parties my view as to what will occur this year, and the reasons succinctly for that position, I again record that the material I have been asked to consider for this limited and discrete issue is quite voluminous and touches upon many issues which are not relevant to the issue I am required to determine today.  I remind the parties that at trial, they will be required to file fresh affidavits.  It is a hearing de novo, so they are not, of course, limited to the material they provided and offered to the Court before Gill J.  Nonetheless, I would urge the parties, both of whom are capable and loving parents, to try as best they can to limit the criticisms of the other parties which have no real moment and to concentrate on asserting to the Court positively why it is in the best interests of the children that they live with them in their chosen country of residence.

14. This is no longer a relocation case.  The mother having, as she was perfectly entitled to do, decided to return to the country of her birth and remain in the United States, seeks the children live with her.  The father seeks the children live with him, at his current residential address, apparently for the foreseeable future, is Australia and, in particular, Canberra.  It is in all respects a contested residence case.  As the Full Court as early as the early 70s indicated, parenting cases should, where possible, be asserted in a positive manner, not through the prism of highly negative affidavits, one against the other, so that the Court is really being asked to consider the least worse alternative.

15. Returning the point in question, it seems to me that there are a number of competing needs of the children.  Firstly, they have a need, which should be met, of spending time with their mother.  It was not their choice that their mother, for her own reasons, as she is perfectly entitled to do, chose or felt she needed to return to the United States.  The mother’s unilateral actions in that regard have necessarily caused less frequency of physical time between the children and her.

1. Whilst that may not have been ideal for the children, it was not of their making.  It is not possible to always compensate for all the nuances from day to day that the children miss in their interaction physically with their mother.  It is not an exercise in mathematics.  The mother’s position is that she should have at least four weeks of the school holidays with the children in the United States.  The father’s position is that it is in the interests of the children when they are in the United States that they have an opportunity to interact with the paternal grandparents, who live in City N.  The father says – and I accept for the sake of today that the paternal grandfather is not in good health.

2. The father’s intention, funded by his employer, apparently, will be to also attend in the United States for part of the Christmas school holidays, but he will not accompany the children to the United States, but he intends to accompany them to return to Australia.  Today he indicated that in addition to the children spending some time with him and his parents in City N, he would like to spend some time at a beach resort in Australia before the children return to school.  Considering all these factors, it is my decision that the mother’s time with the children shall commence on or about 21 December 2019 until Tuesday, 14 January 2020.

3. The children will be in the care of the father from 14 January 2020 to the end of the school holidays.  In my view, it will be a matter entirely for the father as to how much of the time between 14 January 2020 and when the children must have at least returned to Australia by 2 February 2020, that is, 19 days later, he chooses to spend in City N or he chooses to spend in Australia by the beach or otherwise.  He will have sufficient time, depending on when he chooses to return to Australia, to prepare the children for school.  He may do some of that preparation before they leave on 21 December 2019.  That is a matter for him.

4. I accept that the period of time, 21 December 2019 to 14 January 2020, is 24 days and not the 28 days that the mother seeks.  In my view, however, the balance for these children on their respective interests is met on this occasions, this year, by a division of the time in the way that I am ordering.

5. The father will need to meet the costs of travel from City D, State E to City N and from City N to either City L or City M.   The father will need to meet to the costs of travel from Canberra to Sydney and from Sydney to Canberra.  The mother will meet the costs of the airfares for the children flying unaccompanied from Sydney to, at her choice, either City L or City M.  The mother will meet the costs of the children travelling, although accompanied by their father – just their airfares from City M or City L to Sydney.

6. Because the father will need to know from which port he is leaving the United States, there will need to be a timetable for the mother to make the flight bookings.  I accept that the flight bookings for the boys will be likely to be at the best available rate and with an airline that will take the children unaccompanied, at least from Australia to the United States.  I do not see the father, providing he has plenty of notice, to have any difficulty in arranging to travel from City N to either City L or City M on whatever date he chooses to do.

7. He will need to, however, nominate to the mother when he chooses to leave the United States after 14 January 2020.  That will very much depend on how much time he chooses to spend or can spend with his parents and when he decides to return to Australia and begin part of the Australian holiday there.

8. I accept that these parties do not communicate well and I will set some timetable whereby they communicate their desires subject to the orders I have made in a timely way.  I suspect the earlier you at least book overseas airfares, the more likely you are to attract a more discounted rate of flight.  I do not propose to make any orders that the period of time that the children spend with the mother from 21 December 2019 until 14 January 2020 be interrupted by any time at Christmas Day, Boxing Day or the like or Thanksgiving.

9. As I have indicated earlier, what orders I make this year may not be reflective of what orders are made in future years, but, in my view, a division of available time for these two boys in the way that I have indicated is, for the forthcoming holidays, in their best interests, and so I propose to so order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 11 October 2019.

Associate:

Date:  11 November 2019