KERSON & BLAKE

[2018] FamCA 294

FAMILY COURT OF AUSTRALIA

KERSON & BLAKE [2018] FamCA 294

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where Mother seeks to return to her home town with the children – where the father seeks to remain in Australia with the children – where both parents are good parents – significance of mental health struggles by one party – benefits to party and to parenting capacity in move – where one party is superior, but only to a subtle degree in emotional engagement with the children - where the other party’s capacity or willingness to foster the relationship between the children and the other parent carries significant weight.

FAMILY LAW – PRACTICE AND PROCEDURE – Prompt Trial – The effects of providing a prompt listing of the final trial.

U & U (2002) 211 CLR 238

Family Law Act 1975 (Cth) - ss 60CC, 65DAC

APPLICANT: Ms Kerson

RESPONDENT: Mr Blake

FILE NUMBER: CAC 1154 of 2017

DATE DELIVERED: 4 May 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 March 2018 - 23 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Haddock

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Mr Glass

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

By consent it is ordered as follows:

1. Orders that are to apply if both the Applicant Mother Ms Kerson (the Mother) and the Respondent Father Mr Blake (the Father) (collectively referred to as the parties) live in the same town or city:

2. B, born … 2006, and C, born 9 … 2012, (“the Children”) are to spend time with each of the parties as agreed in writing, and failing agreement, as follows:

   (a)Week about with changeover to occur as follows:

   (i)On a school day, on Friday at the conclusion of school;

   (ii)On a school day, if one child is not at school but the other is at school, the party with whom the Children are due to spend time will collect the child who is at school from school at the conclusion of school and will then collect the child who is not at school from the other party’s residence after school hours at a time to be agreed;

   (iii)On a school day, if both Children are not at school, the party with whom the Children are due to spend time will collect the Children from the other party’s residence at the time school would have otherwise concluded;

   (iv)On a non-school day, on Friday at 4:30pm.

   (b)With each parent for half of each school holiday period as agreed between the parties but failing agreement, with the Father for the first half of the holidays in years ending with an even number or zero, and with the Mother for the first half in years ending in an odd number.

   (c)With the Father for the fourth Thursday in November (Thanksgiving) on the years in which he is not spending Christmas with the Children, and with the Mother in years in which she is not spending Christmas with the Children.

   (d)Notwithstanding Order 2(b) above, if the parties will be in the same town/city on Christmas Day, the party with whom the Children are spending time will ensure that the Children spend a minimum of three hours with the other parent on Christmas Day.

3. That other than in circumstances of emergency, the party with whom the Children are living will facilitate the Children having Skype, telephone, or other electronic communication with the other parent at the request of the Children (or either of them) provided such request is between 8:00am and 9:00pm and is reasonably practicable at the time of the request.

IT IS ORDERED

1. That the Mother and the Father be restrained from relocating the residence of the Children away from Canberra, Australia, without:

   (a)       The written consent of the other party; or

   (b)An order of a Court of competent jurisdiction pursuant to the Family Law Act 1975 (Cth) (“the Act”).

2. That the Children live with the Father.

3. That the Children spend time with the Mother as agreed in writing, but failing agreement as follows:

   (a)In Australia, for 14 days (inclusive of travel times) during the ACT gazetted Term 1 school holidays, with such days to be nominated by the Mother no later than 28 days prior to the first such day;

   (b)In the United States of America (“USA”), for an up to four-week block period (inclusive of travel times) covering the ACT gazetted Term 2 school holidays to commence on a day as soon as practicable upon completion of Term 2 examinations and / or assessment and to conclude on a day such that the Children can attend on the first day of the second week of Term 3, with such days to be negotiated with the Father no later than 28 days prior to the first such day, and with the parties to consult with the Children’s teachers to clarify end of term schedules and exams and explore the possibility of the Children or either of them completing school-related tasks from the USA.

   (c)In Australia from the Sunday prior to Thanksgiving through to 23 December of that year (when contact commences in years ending in an odd number) or to 2 January in the following year (when contact in years ending in an even number or zero), or such lesser time as the Mother may be able to spend time with the Children in light of her employment commitments, with the Mother to provide no less than 28 days’ notice to the Father of the time she will spend with the Children pursuant to this order prior to the commencement of that time;

   (d)In addition to the time provided for in Orders 6(a)-(c) inclusive, in the event the Mother is in Australia, the Children may spend a maximum of three weeks per occasion with the Mother, provided that:

   (i)The time does not occur over Christmas in a year that the Mother would not otherwise spend Christmas with the Children, or in the end of terms 3 or 4 school holidays, which time has already been provided for under these Orders.

   (ii)The Mother gives the Father not less than 28 days’ written notice of her intention to be in Canberra and spend time with the Children, and the dates that the Children will spend with her; and

   (iii)During the Children’s time with the Mother, the Mother will take the Children to their usual day-to-day activities, including school and extracurricular activities.

   (e)That for the purposes of implementing Orders 6(a)-(d):

   (i)The Father is to organise and pay for the Children’s flights to and from the USA to the Mother’s place of residence for the purposes of the Children’s expenditure of time with the Mother pursuant to Order 6(b).  The Mother is to provide the Father with her residential location, and the Father is to provide the Mother with flight arrival and departure times no later than 28 days prior to the first date of contact, and bookings (the travel dates having been negotiated between the parties as per Order 6(b) or 6(c))

   (ii)That unless otherwise agreed between the parties in writing, the Children are not to travel as unaccompanied minors until C attains the age of eight years,

   (iii)The Mother is to organise and pay for her own flights to and from Australia for the purposes of Orders 6(a), 6(c), and 6(d), and is to provide the Father with her flight arrival and departure times no later than 28 days prior to the first date of contact.

   (iv)That in the event the Mother is unemployed or working less than full time hours (defined as fewer than an average of 30 hours per week) in the 8 weeks prior to the time in which the Children are to spend with her pursuant to Order 6(d), the Mother be at liberty to request a contribution from the Father towards her accommodation costs in Australia up to a maximum of 50 per cent or $2,500 Australian dollars, whichever is the lower amount, of her rent incurred during that period, with the Father to pay to the Mother that amount upon being provided with the relevant invoice or lease, and copies of her payslips for the previous 8 weeks demonstrating she is working less than full-time hours.

4. That the Children shall communicate with the Mother via Skype, FaceTime, or other electronic communication on no less than two occasions per week, as agreed, but failing agreement:

   (a)       Saturday at 9:30am (Canberra time); and

   (b)       Thursday at 7:30am (Canberra time).

5. That for the purposes of Order 7, the Father will initiate the Skype, FaceTime or other electronic communication and will ensure the Children are available for the call.

6. That other than in circumstances of emergency, the party with whom the Children are living will facilitate the Children having Skype, telephone, or other electronic communication with the other parent at the request of the Children (or either of them) provided such request is between 8:00am and 9:00pm and is reasonably practicable at the time of the request.

Parental Responsibility

1. That the parties have equal shared parental responsibility for the Children.

2. That, subject to Order 12, in the event Order 10 of these Orders requires the parties to make a joint decision on a major long-term issue concerning either or both of the Children per s 65DAC(2) of the Act, the parties 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, the parties be at liberty to nominate an agent to communicate with the other party and relevant third parties (such as treating practitioners) on their behalf with respect to their obligations under Order 11for any period in which either party is in transit and therefore uncontactable.

Facilitation of Parent/Child Communication

1. That both parties are to 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 be:

   (a)Set up with relevant communication software including Skype, FaceTime, Hangouts and email; and

   (b)       To have appropriate parental control devices installed.

Travel

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

2. The parties can only travel to a non-Hague Convention country with the written permission of the other party.

3. That the parties do all acts and things and sign all documents necessary to ensure the Children all have current passports at all time.

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.

Provision of Information

1. That each party will notify the other party within 48 hours of any change of:

   (a)residential address,

   (b)person living in their residential address; and

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

2. That each party will notify the other parent 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. 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 parties and to release all information concerning the Children to both parties as may be requested by either of them from time to time.

4. That for as long as C is determined to have asthma by an independent medical professional, that

   (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)That 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 is provided with any other medical or health related information relevant to the Children at that time.

6. That the parties 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 parties be and are restrained from: 

   (a)Saying unkind or unpleasant things to or about the other party, their family or household, nor permit or encourage others to do so;

   (b)Communicating with each other unless that communication is necessary to facilitate the implementation, of these Orders;

   (c)Causing anyone other than themselves or their partner from collecting the Children after school other than when the school is informed beforehand in writing (noting that this notification is a requirement imposed by the school); and/or

   (d)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.

2. That otherwise all outstanding applications and response are dismissed.

3. That pursuant to s 62B of the Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

4. That pursuant to s 65DA(2) of the Act, 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 Fact Sheet, attached hereto and these particulars are included in these orders.

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 CANBERRA

FILE NUMBER: CAC 1154  of 2017

Ms Kerson

Applicant

And

Mr Blake

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant in this matter is Ms Kerson, the Respondent is Mr Blake.  These proceedings relate to the parenting of the parties’ two children, B, who turns 12 in September and C who is six.  The parties are both citizens of the United States of America (“USA”), and met whilst overseas in 1997.  The parties commenced living together in City D, State E in the USA in 2002, and married in 2003.  The parties moved to Canberra in July 2012.  The key dispute relates to whether the children will return with their mother to live in City D, or remain living in Canberra with their father.

2. Although the parties have agreed a large number of matters whichever way the central dispute is resolved, they have not been able to agree on the critical matter of who the children will live with and where.

3. Proceedings were commenced by way of Initiating Application on 3 July 2017.  Whilst the parties have set out their positions as to interim orders, these proposals do not fall to be considered as final judgment has been able to be delivered close enough to the hearing to render interim orders unnecessary.

4. This matter was given priority in the list as it contains urgent issues relating to international relocation to be dealt with.  Accordingly it has been able to be dealt with in ten months from filing to finalisation.  This has enabled the parties to both avoid an interim hearing, and has minimised, although not completely removed, the difficulties that the parties and children faced by having litigation at about the time one of the parents intends to move overseas.

5. For the present financial year, the average time that matters have waited between filing and finalisation in the Canberra registry is 21.5 months.  Many matters that have been filed in advance of this case have not yet been allocated trial dates and it may have been expected that this matter would not, in the ordinary course, have been able to be dealt with and finalised until well in to 2019, and in all likelihood, given the current pending matters, beyond the 21.5 month average that cases this financial year have encountered.

6. Such a result, and the uncertainty that would have surrounded the care of the children, would have had the potential to interfere with, or change, the outcome of proceedings by virtue, in part, of arrangements becoming hardened in the absence of a final determination of the matter on its merits.  That has been largely avoided here, because it has not been dealt with in the ordinary course.

Material relied upon

1. The Mother relied upon:

   a)Initiating Application filed 3 July 2017;

   b)Affidavit of Ms Kerson sworn 31 January 2018;

   c)Case outline filed 13 March 2018;

   d)Summary of Argument document; and

   e)Family Report of Ms G.

2. The Father relied upon:

   a)Response to Initiating Application filed 13 December 2017;

   b)Affidavit of Ms F affirmed 11 December 2017;

   c)Affidavit of Mr Blake affirmed and filed 13 December 2017; and

   d)Affidavit of Mr Blake affirmed and filed 14 February 2018.

Orders sought

1. During proceedings the parties provided to the Court a minute of orders sought, which helpfully outlined the agreed and disagreed positions of the parties, in the context of the polarised position of the parties as to who the children should live with and where.  The minute is annexed in full at the conclusion of the judgment, at Annexure A.

2. In relation to final orders, the Father sought that the Mother should not be permitted to relocate the children to City D, whilst the Mother sought that she be so permitted.  Outside of this overarching dispute as to the residence of the children, the parties largely agreed as to the orders that should be made on either eventuality.  The scope of the dispute in relation to final orders relates, in the event that the children do not return to the USA with their mother, to the amount of time they will spend with her in the middle of the year.

Mother’s case

1. The Mother intends to move to City D regardless of the outcome of the proceedings.

2. The key contention of the Mother’s case is that it is in the children’s best interest to move with her to City D, rather than remaining in Canberra with the Father.  That stems in large part from the Mother being in a better position in City D for her mental health, financially, and due to the superior support available.  It also stems from differences in the nature of the relationships between the boys and each of their parents, and each parent’s capacity to care for the boys. 

3. In Canberra the Mother suffers isolation and currently poor financial circumstances.  The Mother points to the strain she feels in remaining in Australia, alleging that it led to her hospitalisation in 2017.  In contrast, in City D the Mother has more proximate family support, about three hours flight away, but also significant non-family support, exemplified by the practical and other support she was given when she travelled there over the 2017 Christmas break.  She says that the move will ameliorate her mental health issues. 

1. She accepts that the children face a significant change in circumstances and although they have secure relationships with each parent, the Mother says that she is more emotionally attuned to the children, and more apt to deal with the inevitable grief they will suffer at the change in circumstances.

2. Further, she says that the Father’s position, that if the parties live in close proximity there should be an equal shared care arrangement, means that the struggles that she has had with her mental health should not be taken to impact adversely on her capacity to parent.  Her willingness to self-admit to hospital, her capacity to ensure that the boys were cared for in that period and her better position in City D mean that there are good protections for the children from any impacts occasioned by the Mother’s mental health.

3. The Mother says that she will facilitate the relationship between the children and the Father if she lives in City D and, in support of such a finding points to the view of the Family Reporter, the parties’ history of shared care in the face of conflict, and on the basis that she says that she will function better in City D.

4. The Mother challenges the Father’s capacity to care for the boys, pointing to his difficulties with memory, a difference in the degree to which he is attuned to the boys’ needs, in deficiencies in his communication for which he seeks the feedback of others and to C’s particular emotional dependence on the Mother.

The Father’s case

1. The Father emphasised issues relating to the Mother’s capacity to solely parent by virtue of her ineffective mental health treatment.  While he says that it is reasonably practicable for an equal time arrangement in Canberra, such an outcome is not possible given the positions of the parties.  He disputes the likelihood of the improved position that the Mother hopes for in City D.  He asserts an increased risk to the children’s meaningful relationship with him should they live in City D.

2. The Father pointed to his capacity to care for the children, noting that the difference in degree to which the parents are emotionally attuned, as identified by the Family Report writer, was described as subtle.  He identified a willingness on his part to change and improve as a parent, a willingness that has already borne fruit.

Key Issues

1. The parties accepted that the relevant s 60CC[1] considerations were those identified below:

   [1]Family Law Act 1975 (Cth) s 60CC.

   (2)     The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

   …

   (3)     Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)  each of the child’s parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   …

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)  each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   …

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

2. Having identified these considerations, in the context of a case in which there are polarised outcomes which will see the boys either living with their Father in Canberra, or their Mother in City D, the parties concentrated upon the following factual matters:

   a)The children’s circumstances in City D, living with the Mother and in particular:

   i)The nature of each of their relationships with the Mother in combination with her capacity to parent, looking particularly at the mental health and practical implications of the move for the Mother;

   ii)The degree and impact of the change of circumstances relating to a move;

   iii)The nature of the relationship that may be able to be supported with the Father.

   b)The children’s circumstances in Canberra living with the Father and in particular:

   i)The nature of the relationships each of the boys has with him and his capacity to parent them, particularly emotionally;

   ii)The degree and impact of the change of circumstances with the Mother moving;

   iii)The nature of the relationship that may be able to be supported with the Mother.

3. Each of these matters is inextricably bound with the s 60CC considerations identified above as they deal with meaningful relationship, the views of the boys, their characteristics and maturity, parental capacity, the nature of relationships, the practicalities of the distance that will be involved, and the attitudes each parent has to the other and to their responsibilities in fostering the relationship with the other parent.

Nature of relationships and capacity of each of the parties to parent

1. Common to each outcome is the necessary consideration of each parent’s capacity to parent, and how that capacity is affected by the proposed move to City D.  The Family Report writer, Ms G, was able to evaluate the relationships between the children and each of the parties, assessing that the children have a “positive relationship with both parents” and that “they rely on both parents for their emotional security and comfort”.  She considered that the parents had different strengths and weaknesses, but that both were “loving and committed care givers and, individually, they appear to be motivated and well intentioned in regards to the responsibilities of parenthood”.

Children’s emotional needs

1. As might be expected, the Family Report writer noted differences in the two boys and their needs and relationships.  The age differential between the boys gave prominence to different issues.  For B, there was potentially a heightening importance of his peer group, which is currently established in Australia.

2. It is notable that B told the Family Reporter of difficulties in discussing emotional issues with his Father because he “doesn’t understand me that much”.  B wanted his Father to listen more, and noted that he was getting better at that.  This is perhaps reflective of Ms F, the Father’s girlfriend’s, observations of the Father setting aside time for B after C has gone to bed.

3. The Family Reporter assessed that C currently relies primarily upon his Mother for his emotional security, based in part of what C had to say, including his expression of a preference to live with his Mother.  C is at a stage of development of early childhood, resulting in him being closer to the Mother, although he is on the cusp of moving out of that.

4. C at present relies upon a parent to manage his emotions.  The Report writer thought that for C, his adjustment to the challenges of losing a parent would be better met by “living in primarily the care of his Mother.”  

5. In assessing the views of each of the boys, the Report writer noted that B did not yet have an ability to comprehend long-term consequences of his desire to live in Australia.  She thought that C’s wish to live with his Mother, given his age and maturity, should not be accorded significant weight.

6. In summary the Report writer thought that B would be able to happily settle in either Australia or the USA with the Mother.  C’s primary reliance upon his Mother for his emotional security tended towards C needing to be with the Mother.  Due to C’s heightened vulnerability at his age, the Report writer thought that C’s needs ought to be prioritised.

Father’s Capacity and approach to Parenting

1. Contrasting the parents, the Report writer noted that with the Father, life is more lively and active.  He provides “greater outdoor activities and a love of education, reading and intellectual analysis”.  On the other hand, the Mother “seems to offer greater nurturing and emotional attunement.”  This was supported by the Mother articulating a more nuanced expression of the children’s emotional needs.  According to the Report writer this attunement did not represent a chasm between the parties, but rather formed a subtle difference between them.

2. This balance between the parents appears to be reflected in the Report writer’s inability to preference either of the arrangements proposed by the parents.

3. On the issue of the Father’s capacity, the Father has suffered from Attention Deficit Hyperactivity Disorder, a head injury and a stroke.  There is little, if any, evidence as to the impact these currently have on his capacity to parent.  It was noted by the Report writer that the Father is forgetful, and struggles to organise arrangements for the children and to meet their needs in a timely manner.  However, such a generalised criticism, absent a particular impact being identified, is not a matter of weight. 

4. More importantly, there was some generalised history of the Father having a tendency to lose his temper with the children, although this appeared to have improved.  One criticism made of the Father was his reliance on others to assist him in identifying deficiencies in his relating to others.  He said that in the past he had been reliant upon the Mother for this.  The criticism was ill placed.  Such reliance was indicative of the Father’s self-reflective approach.  That is, he demonstrated a willingness to accept that he suffered from deficiencies and a willingness to change.

5. During interactions with the Father, the Report writer assessed that “both children appear comfortable and relaxed,” and he was observed to “support and encourage the children”.  The evaluation shows no concerns regarding his parenting of the children.

6. Ms F provided further insight into the nature of the relationship between the Father and the boys.  While she accepted that B is not comfortable with the Father having a girlfriend, the approach to their relationship in the presence of the children has been thoughtful, sensitive and gradual.  They have limited displays of affection, and have not stayed overnight while having the care of the children.  Ms F appeared insightful both about the characteristics of the boys, particularly as they interact with her girls, and as they interact with their Father. 

7. Ms F gave evidence of the relationship between the Father and the boys, noting they “often go to him for cuddles, snuggles and other physical affection, which he is always willing to give.”  She described the “fun and playful” manner of interaction, baking, reading, making creations and playing “wild and imaginative role play games” with C.  She also describes the Father spending time with B after C has gone to bed, a time used to check in with B about his feelings.  The Father organises activities for B and engages in activities with the children together.

Mother’s Capacity and approach to Parenting

1. For the Mother, the Report writer’s primary question as to capacity arose from her voluntary hospitalisation in 2017, and the surrounding mental health issues.

2. Well in advance of her hospitalisation the Mother attended upon a psychologist, Ms H, on 9 occasions between October 2015 and July 2016.  She was reported by the psychologist as suffering impaired concentration, thinking and functioning.  She was described as “intensely anxious, very lonely and isolated from her supports in the USA.” This identified the Mother’s struggle as long standing and as having a connection to being in Australia.  However, the Mother did not regard her attendances upon the psychologist as effective.

3. On 17 October 2016, approximately a year before her hospitalisation and after her sessions with Ms H had finished, the Mother attended on her general practitioner, and was assessed as being in an acute situational crisis.[2]  She has been prescribed various medications directed to her mental health.  As with the involvement of Ms H, she says that she has found these to be ineffective.

   [2] Exhibit W1.

4. On 20 October 2017 the Mother admitted herself to hospital in response to her mental state, following failed mediation of the family law dispute.  At that stage she had formed the view that the Father would not agree to a move to the USA.  The Mother was admitted to hospital on 20 October and discharged on 3 November.  J Hospital admission records[3] stated that the Mother presented with suicidal ideation, stating that “if I went home I would have killed myself”, and that she had planned to light small fires with some camping stoves and “take a bunch of still-nox”.  She was diagnosed at discharge as having a major depressive episode on top of chronic dysthymia, and presenting with severe anxiety and depressive symptoms, Tramadol dependence, fibromyalgia and chronic arthritis and pain.

   [3] At Annexure C of the Mother’s affidavit dated 1 February 2018.

5. Recommendations were made for the management of the Mother’s mental health on her discharge from hospital, which included referral to a psychologist and a psychiatrist.  Neither of these steps was taken by the Mother.  Despite having secured an appointment with the psychiatrist prior to her hospitalisation, the Mother failed to attend the appointment.  The Family Reporter said that this increased the risk of a future mental health episode and hospitalisation, which indicated a real risk that the children could face a difficult episode if they were living in City D with their Mother, a three hour flight from the relatives who could provide her with support.  However, the Report writer thought, even if the Mother was struggling psychologically it would not mean that she was unable to parent effectively.  Her ability to organise the care of the boys during her hospitalisation supports such a conclusion, although the Father was available to share the care of the boys for that time.

6. Similar to the assessment of the Father, the Report writer observed that both children “appear comfortable and relaxed in the company of their Mother”.  While the Mother appeared to be tired during the assessment process, the Family Reporter considered that “she remained emotionally present, interacting with the children throughout their activity”.  The children were quieter when with the Mother than with the Father, as they appeared to “mirror their Mother’s energy levels”.  As with the Father, the observations raised no concerns regarding the Mother’s parenting.

Change of circumstances

1. There are a number of aspects to the change in circumstances facing the parties and the children.  It appears inevitable that the children will face a significant separation from one or other of their parents.  They will no longer have the benefit of such extensive time and experience with both of their parents.

2. The Report writer considered that the impending change will require delicate handling.  Each of the children will suffer grief at the loss of involvement of one of their parents, which will be the product of the orders sought by each of the parties.  She also considered that the change may involve not only the loss of involvement, but a change in relationship, without the day to day connection that the current arrangement provides.  Such changes may impact upon the boys’ development, emotional security, sense of identity, and may result in anxious interpersonal relationships.  Movement between education systems may result in a set-back. 

3. A move to City D will involve a change in home and school and peer group.  However, the boys each have ties to City D and friendships to reconnect with there, although it is some time since they have lived there.  This ameliorates the effects of change, as it is not to an unfamiliar environment, although it is not simply returning to an environment where they have recently lived.

4. The Father was cross-examined both as to his willingness and ability to return to City D if the children were to live there.  He expressed a strong desire to be near his children.  However, the evidence indicated extremely limited prospects for work for him in City D.  He may be able to obtain some work at a minimum wage.  There appear to be no prospects for him to obtain work related to his current employment, in a research-based area.  He conceded that some such work is available in the USA, but in City K, a considerable distance from City D.  Work there, in the same field as he currently works in Canberra, may be able to be obtained if there is a successful application for a grant.  If one was granted, he thought that the time frame before it occurred would be measured in years.

5. The prospects for the Father returning to City D are low due to the impracticability.

Impacts upon the Mother

1. The other significant differences said to come from a move to City D are asserted to stem from improvements in the Mother’s position.

2. One aspect of these differences relates to her capacity to work.  At present, in Australia, she is not in employment.  She has resigned that employment and has made few steps to engage in further employment.  Her reasons for resignation concerned conduct of other persons within the organisation that she worked for which she felt may impinge upon her capacity to retain her professional registration.  Having left that work she said in her affidavit that her qualification required employment that was not recognised in Australia.  In her oral evidence she accepted that this was an exaggeration.  She accepts that she is in fact the 800^th of her profession in Australia.  She asserts that she is, perhaps, also the most qualified.  It should be inferred that work would be available for her in Australia if it was pursued.  It is not currently pursued by her, and has not been actively pursued by her for some time.  This is unsurprising given her intention to relocate.   

3. The Mother expects that she will be able to secure work in City D should she return there.  There is no serious dispute as to whether or not she would be able to retain work.  The Father accepts that she is highly qualified in her field.  While there should be confidence that the Mother will be able to work, there cannot be confidence that she will experience an increase in income or be able to retain favourable work conditions that will enable her to have an income sufficient to mean that she will face easy financial circumstances.  Her previous experience of work in City D involved employment where she worked 60 to 70 hours per week.  While there may be confidence that she will be able to retain employment there cannot be confidence that her financial circumstances will be favourable at City D.  It should not be thought that, to the extent that it may impact upon her mental health, that the work opportunities and benefits are greater in City D than here.  They will, however, be improved from her current circumstances where she does not work. 

4. The Mother also expects that a move to City D will see an amelioration of her current experience of isolation and loneliness. 

5. While the Mother said that she feels isolated in Australia with only two friends to support her, she accepted that she had received support from a broader base then the two friends that she identified.  This support was particularly obvious following her hospitalisation.  In contrast to the isolation that she feels here, she describes City D as having a “massive community” that she could “show up” to.  Her evidence as to the support that she received in obtaining accommodation there recently speaks to the truth of her understanding of the broad support base that she would have available to her in City D.

1. That is, although she has experienced some support in Australia, in all likelihood she will have significantly more in City D. 

2. While the Mother also asserted that her family would be available to her at City D at short notice to support her, they are largely a three and a half hour flight away.  Her assertions of ready availability are exaggerated, although at the same time her family are much closer to her in City D then they are to her in Canberra, which speaks to an improved ability to access that family support.  They would certainly be more quickly and readily available to her in an emergency in City D than here.  Despite the relative closeness to family in the USA, the Mother was not able to predict that she would see her family more often then she does now. 

3. It may be concluded that the Mother’s position in City D would not see her feeling or being as isolated as she does in Canberra. 

4. It may also be assumed that the Mother will not be under the financial pressure that she currently experiences living in Canberra, as she might be expected to re-enter the workforce.

Support of relationship and ability to co-parent

1. Following their separation the parties have cooperated in a substantially shared arrangement for spending time with the children which is currently an equal shared time arrangement.  In this sense they have been generally supportive of each other’s relationships with the children although this has taken place in the context of severe conflict between them. 

2. Immediately post separation the parties used a “birds nest” arrangement whereby each would move in and out of the former matrimonial home depending on whose time it was with the children.  This represented a cooperative arrangement by which the boys might be expected to maximise the benefits they received from relationship with each of their parents.  It demonstrated cooperative support for each of the parents in their relationships with the boys.

3. As time passed the parental relationship deteriorated.  The Father accepted his behaviour degenerated into shouting and accepts that he may have sworn or denigrated the Mother.  This then resulted in an arrangement where the parties no longer speak to each other.  They communicate electronically in writing only.  The Father said that this was an appropriate arrangement, despite the shared care, because it enabled him to be thoughtful and calm in response to the Mother’s communications, and therefore to appropriately respond.  He accepted that he did not always meet this aspirational goal. 

4. Despite the restriction in their communication to writing only, the Mother says that she still feels as though she is being bombarded by the Father.  As against that the Father says he tries to limit his communication with the Mother to matters that specifically involve her.  He accepts that his communication may be flawed but also says that he experiences the Mother’s communication with him as critical. 

5. The outcome of these proceedings will cause significantly different circumstances to the current shared arrangement for the support of the relationships of the children with the other parent.  It is in that context that questions of each party’s capacity and willingness to support the relationship turn to be considered.

Father’s approach to relationship and co-parenting

1. No criticism was made of the Father regarding facilitating the relationship between the Mother and the children.  However, the Father accepts that he has involved the children in the conflict between the parents, for example when he has become angry about the treatment of the children’s lunch boxes.  The Father says that he tries not to do this because he realises that it is not good for the children.  He had only limited positive things to say about the Mother when asked.

Mother’s approach to relationship and co-parenting

1. The Father complained, and was not challenged, that the Mother declines to provide information about the boys and that she has made it difficult for him to talk to them. 

2. The Father made the general assertion that when the Mother travels in the USA, despite having agreed to him having Skype time with the children, she fails to send information about when the children will be available for that contact[4].

   [4] At [162] of the Father’s affidavit dated 13 December 2017.

3. The Father identified a specific instance of difficulties speaking with the boys while they were both in the USA in July-August 2017.[5]  The Mother was travelling with the boys for a period of about 18 days.  She had agreed with the Father that the children could speak with him via Skype three times per week.  They spoke, during this period, a total of five times.  When the Father asked for a schedule to make communication happen the Mother’s response was “Yes, I will force [C] to talk to you.”

   [5] At [166] of the Father’s affidavit dated 13 December 2017.

4. The Mother then involved B in the dispute by emailing him as contained at Annexure F of the Father’s 13 December 2017 affidavit.  In this email the Mother brought B into the dispute regarding when the Father would have telephone time with the boys.  The Mother is critical of the Father to B.  The Mother placed B in a position where B was required to resolve the issue.  If this was a regular occurrence then the Family Reporter thought that it calls into question the extent to which the Mother would foster the relationship between the Father and the children.

5. It is against this background that it is said that the Mother will support the boys’ relationships with the Father should the boys live with her in City D.  In the short period of travel in the USA in July-August 2017 this was not what she did.  Her response to communication was undermining rather than supportive of the relationship with the Father.

6. A further specific example was raised of failure of the Mother to communicate with the Father, stemming from her hospitalisation.  Having been admitted as suicidal on 20 October 2017, she made initial arrangements for the boys, for the time they were due to be with her, to stay with friends.  The Mother contacted the Father via email on Saturday 21 October, advising him that she would be in hospital for approximately a week.  At this time she did not disclose the nature of her hospital admission.  The Mother informed the Father as to the nature of her hospitalisation on the following Tuesday 24 October, advising him that she had attempted suicide.[6]  To the extent that it is suggested that this shows a deficiency in communication or in promoting the relationship with the other parent, this incident is of limited assistance.  In what must have been a particularly difficult and traumatic time, within a short period, the Mother not only told the Father of her admission but allowed him access to treating staff.  Given the difficulties between the parties, it is understandable that a delay in communicating the position of the Mother occurred.  Given those same difficulties some credit must be given to the Mother for the reasonably prompt access provided for the Father to the treating staff.

   [6] At [114] of the Father’s affidavit dated 13 December 2017.

7. Perhaps the most significant point is that the delay meant that the Father was not in a position to be able to adequately support the boys in dealing with the fact that their Mother had been hospitalised.  He could not tell them why their Mother was in hospital, nor comfort them other than that she was expected to be released in a week.  It may also indicate that should a further incident occur, particularly where the Mother is in City D, there might not be prompt advice to the Father of the extent of any possible position of vulnerability on the part of the boys.

8. The proceedings demonstrated the consistent and deep difficulties that the parties have in communicating with each other. At present their communication is only in writing, such having been the case since some time in 2016. The Father’s rationale for communicating only in writing was to make his communication more reasonable such that he was able to respond in a more measured fashion, or allow anger to subside following a communication from the Mother. During the proceedings instances of particular difficulties and the vitriol that has accompanied them were entered into evidence in relation to their written communication. These question whether or not the parties would be able to comply with obligations imposed upon them pursuant to s 65DAC of the Act, should an order for shared parental responsibility be made. Such an order would require the parties to consult each other in relation to the long-term decisions and also to make a genuine effort to come to a joint decision about that issue.

9. Despite these difficulties the parties were both of the view that an order for equal shared parental responsibility should be made.

Discussion

1. In every case the paramount consideration is the best interests of each of the children. This paramount consideration is determined on consideration of the relevant aspects of s 60CC of the Act, in this case as identified above, and here as most closely aligned with the factual matters identified above.

2. Here, each of the parents brings a strong capacity to look after the children’s needs and to contribute different qualities to the children’s upbringing.  In this case, there is a contest between two parents, neither of whom has significant deficiencies in their relationships with, or their capacity to care for, the children.  It is a choice between two good parents.

3. Consistent with this, the Family Reporter was unable to come to a recommendation as to whether the children should live with their Mother in City D, or their Father in Canberra.  This was the product of the qualities brought by each of the parties being finely balanced.

4. In determining best interests the Court is not bound by the proposals of the parties, as they may not necessarily seek a result that is in the best interests of the children.[7] In this case, however, two characteristics point to the conclusion being based upon the proposals made by the parties.  Firstly, each outcome is based upon the fundamentally agreed fact that the parties will live in different places, the Father in Canberra, the Mother in City D.  Whatever the outcome of these proceedings, each of the boys faces considerable change in their lives.  At present they have significant involvement from each of their parents.  The involvement of one parent or the other will be much more limited in the future.  Secondly, the parties have generally agreed upon the regime that should govern the time they will spend with the children on each eventuality.  This agreement speaks strongly to these arrangements being both in the children’s best interests and being practically achievable. 

   [7] See U & U (2002) 211 CLR 238 at [70].

5. These two factors mean that the choice faced by the Court is as to the two potential outcomes sought by the parties.

6. In considering each of the proposals it is important to note that there is no starting point that the parent either staying or leaving is in a stronger position, or that there is a condition precedent of justifying either position in order to make orders in either parties’ favour (although the justification of a position might impact upon what that position brings to the children and the relevant parent, and may assist in the evaluation of parental capacity).  Although in dissent in U v U, it is appropriate to acknowledge Gaudron J’s observation of the need for wariness in assessing proper reasons through a lens of “stereotypical views as to the proper role of a mother”.[8]

   [8] See U & U (2002) 211 CLR 238 at [35].

7. In this case the justifications put forward by each party, for their determination to reside in Canberra or City D, do not significantly detract from their capacity as parents and the prominence they each give to the care of their children.  Without ignoring the personal benefits to each of their selected residence, their justifications also speak to the benefit of the children.  For the Father, remaining in Canberra provides work, in terms of remuneration and hours, and a lifestyle that will benefit the children.  For the Mother, City D represents a place where she can work and enjoy support that will enable her to better parent the children.

8. On either proposal, the children will maintain meaningful relationship with both of their parents.  However, the benefits that they will obtain from that meaningful relationship with one of their parents will not be what they enjoy now, as their time with that parent will be significantly diminished.  This places some priority on how each parent will support the relationship with the other parent, including each of the parent’s attitudes to the responsibilities of parenthood.  Both parents experience and cause difficulties in the communication with the other parent.  The experience of the time that the children were travelling in the USA with the Mother, where the Mother was hostile toward the Father exercising telephone time with C, and where the Mother involved B in her hostility toward the Father, calls into question her commitment to fostering the long distance relationship.  One other indicator of the Father’s capacity flows from his evidence regarding the manner in which he fosters the relationship between his family and the boys, even though his family is resident in the USA.  Regular, daily, Skype interactions have been incorporated into the family life, such that a grandparent is able to interact with C on a daily basis.  This integration of internet communication into day to day life also speaks of the Father’s capacity to promote such mechanisms for the sustaining of long distance relationship, although there should still be some caution given the deficiencies in his communication with the Mother.

9. The views of the children are of limited assistance in determining the matter, given their level of development, maturity and understanding of the issues involved.  B’s wish to remain in Australia is of limited weight, but seems reflective of his current connection here.  C’s wish to be with his Mother is also of limited weight but perhaps reflective of the emotional support that he receives from her.

10. The remaining factors are closely meshed.  The nature of the relationships, the characteristics of the boys, the capacity of the parents and the effect of a change in circumstances must be jointly considered.

11. Given that on either proposal the children will lose ready access to one of their parents, each child will face strong emotional challenges.  In some ways, those emotional challenges may be heightened by a removal from Australia, where they are currently settled and have peer groups that each is engaged with.  That is, they face a greater level of change if they are to move to the USA, although that is ameliorated somewhat by their familiarity and connection with City D.

12. However, in terms of an assessment of the strengths and weaknesses of each of the parents, the Mother is able to bring an emotional engagement to the boys beyond that of the Father.  She does not have the (relative) deficiencies of the Father in terms of being able to listen and engage with B with respect of his emotional needs.  She is the one that C is most reliant upon for his emotional needs, a matter that the Family Report writer thought should attract priority.  This is an indicator that, in the circumstances of great change, those particular strengths are the matters that are required to come to the fore for the support of the boys.

13. However, it is important to recognise that the difference between the parents in respect of emotional engagement and attunement is subtle.

14. In this context, it is also important to recognise that the Father is developing in his ability to respond emotionally to B, and that C is at the developmental point of transition from such reliance upon his Mother.  At the same time, it is also important to note that the emotional support that the Mother has been able to give has come at a time of great struggle for her, a struggle that she anticipates will diminish with her move, and it may be anticipated that she will come from a position of greater strength in City D.

15. However, what accompanies the Mother’s capacity is the fragility evident from her hospitalisation in late 2017.  This followed a period of psychological struggle.  Against this are the Mother’s expectations of City D constituting a better place for her in terms of employment and support.  That is, her move to City D goes to the question of the manner in which such a move will see an improvement in her current position, being a position that she says at least partly explains the difficulties she is suffering with her mental health.  Although her capacity to obtain employment might not improve, she is likely to be employed, as opposed to her current position.  Although she has support in Australia, her expectation, and the likelihood, is that she will have greater support in City D.  These are both likely to improve her position.  However, they do not go so far as to remove the questions of fragility posed by the hospitalisation and its precursors, particularly in circumstances where the Mother has not taken the recommended steps regarding a psychologist and psychiatrist following her discharge from hospital.

16. It may be observed that the different considerations pull in different directions.  The subtle difference in emotional engagement and the way in which the Mother is attuned to the boys, which favours her case, must be considered in the context of the uncertainty that flows from the Mother’s psychological fragility.  That fragile and subtle difference is here outweighed by the issue of support and facilitation of relationship, which favours the Father, as it connects to the primary consideration of providing the boys with the benefits that flow from meaningful relationship with each of their parents.  Even accepting that they will have a meaningful relationship with both parents with either outcome, the greater support likely to come from the Father enhances their prospects of greater benefit of meaningful relationship with both of their parents.  This factor favouring the Father’s case is also supported by the consideration flowing from the lesser change involved in the boys remaining in Canberra where they are currently settled.

17. These matters, on balance, mean that the best interests of the boys is met by Orders that will provide for them to remain in Canberra with their Father.

Equal shared parental responsibility

1. There is a presumption in favour of equal shared parental responsibility.  Despite the severe difficulties the parents have in communicating with each other, they agreed that there should be an order for equal shared parental responsibility. 

2. Such an outcome is also supported by the presumption in favour for an order for equal shared parental responsibility, which is not displaced in these proceedings.

3. In support of making such an order, it was identified that these parties do not in fact have a difficulty in consulting one another in relation to matters, but rather bombard each other with voluminous communication.  This was said to evidence that they make a genuine effort to come to a conclusion, communicating with each other and offering each other reasons for their positions.  They have, in relation to the current intractable issue of international relocation, used other supports to try and commonly come to a determination of the issue, for example by the use of mediation.

4. It was also submitted that each of the children has a close and important attachment to each of the parents.  The depth of relationship between the children and each of the parents was said to call for an order for equal shared parental responsibility, so that the children would not be deprived of the other parent’s involvement in long-term decisions when the children are displaced from that parent being across the other side of the world.

1. Despite the problems in their communication, their commitment to sharing parental responsibility, and their commitment to communicating with each other despite their difficulties, means that the presumption is not displaced.  Even though they will struggle to comply with their obligations as set out in s 60DAC, their conduct to date has indicated their commitment to doing so in the face of such difficulties.

2. An order will be made for equal shared parental responsibility.

Differences in the orders sought in the event that the children do not relocate with the Mother to City D

1. The differences centre around the mid-year holidays and whether each year the time with the Mother should extend to the first week of term three, causing the boys to miss up to one week of school at this time (the Mother’s case), or whether there should be an alternating arrangement varying the number of weeks into the term each year (one week in one year, two in the next) pending B reaching year 10, and then after that with the time not extending into the following school term (the Father’s case).

2. Given the priority being accorded to maintaining and giving the boys the benefits, as far as they can be obtained, of meaningful relationship with both parents, the time should extend as sought by the Mother beyond the commencement of year 10.  Further, the proposal by the Mother is simpler and provides for less yearly incursion into school time.  The Mother’s proposal should be adopted.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 May 2018.

Associate:

Date:  4 May 2018

Annexure A

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA  File No. CAC 1154 of 2017

BETWEEN:

Ms Kerson
Applicant Mother

AND:

Mr Blake
Respondent Father

UPDATED JOINT MINUTE OF ORDERS SOUGHT

INTERIM ORDERS

Explanatory note:

• All orders to be made by consent but for the dispute in Order 3(b), in relation to which the Mother’s position is bolded and the Father’s position is underlined and bolded. 

1. That the interim parenting orders of 16 November 2017 be discharged.

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 in the USA for a four/three week block period (inclusive of travel times) covering the ACT gazetted end of Term 2 school holidays in 2018 to commence on a day as soon as practicable upon completion of Term 2 examinations and/or assessment and to conclude on a day such that the children can attend on the first day of the second week of Term 3, with such time to commence on or about 30 June 2018 and to conclude on or about 28 July 2018/21 July 2018.

   c.    That for the purposes of implementing Order 2(b), 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. 

   d.    The children shall spend time with the Mother in Australia from the Sunday prior to Thanksgiving 2018 to 2 January 2019.

   e.    The Mother is to organise and pay for her own flights to and from Australia for the purposes of Order 2(d), and is to provide the Father with her flight arrival and departure times in a reasonably timely fashion after making the bookings.

   f.     That in the event the Mother is unemployed or working less than full time hours (defined as fewer than an average of 30 hours per week) in the 8 weeks prior to the time in which the children are to spend with her pursuant to Order 2(d), the Mother be at liberty to request a contribution from the Father towards her accommodation costs in Australia up to a maximum of 50% or $2,500 Australian dollars, whichever is the lower amount, of her rent incurred during that period, with the Father to pay to the Mother that amount upon being provided with the relevant invoice or lease and copies of her payslips for the previous 8 weeks demonstrating she is working less than full-time hours.

   g.    In addition to the time provided for in Orders 2(b) and (d) inclusive, in the event the Mother is in Canberra, the Children may spend a maximum of three weeks per occasion with the Mother, provided that the Mother gives the Father not less than 28 days’ written notice of her intention to be in Canberra and spend time with the Children, and the dates that the Children will spend with her, but this time cannot be exercised within a 4 week period either before or after the time that the children would otherwise spend with the Mother pursuant to Orders 2(b) and/or 2(d).

   h.    The children shall communicate with the Mother via Skype, FaceTime, or other electronic communication on no less than two 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.Thursday morning Canberra time at 7:30am.

   i.     The children shall communicate with the Father via Skype, FaceTime, or other electronic communication on no less than two 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.Thursday morning Canberra time at 7:30am.

Parental Responsibility

1. That the Applicant Mother Ms Kerson (the Mother) and the Respondent Father Mr Blake (the Father) (collectively referred to as the parties) have equal shared parental responsibility for the children.

2. That, subject to Order 6, in the event Order 4 of these Orders requires the parties to make a joint decision on a major long term issue concerning either or both of the children per Section 65DAC(2) of the Family Law Act 1975 (Cth), the parties 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, the parties be at liberty to nominate an agent to communicate with the other party and relevant third parties (such as treating practitioners) on their behalf with respect to their obligations under Order 5 for any period in which either party is in transit and therefore uncontactable.

Facilitation of Parent/Child Communication

1. That both parties are to 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 be:

   a.    Set up with relevant communication software including Skype, FaceTime, Hangouts and email; and

   b.    To have appropriate parental control devices installed.

Travel

1. That pursuant to Section 65Y(2) of the Family Law Act (Cth), the parties are permitted to take the children to a place outside Australia in accordance with these Orders.

2. The parties can only travel to a non-Hague Convention country with the written permission of the other party.

10.  That the parties do all acts and things and sign all documents necessary to ensure the children all have current passports at all time.

11.  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.

Provision of Information

12.  That each party will notify the other party within 48 hours of any change of:

a.    residential address,

b.    person living in their residential address; and

c.    email, telephone, or mobile telephone number.

13.  That each party will notify the other parent 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.

14.  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 parties and to release all information concerning the children to both parties as may be requested by either of them from time to time.

15.  That for as long as C is determined to have asthma by an independent medical professional, that:

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.    That 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.

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

17.  That the parties 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

18.  That both parties be and are restrained from: 

a.    Saying unkind or unpleasant things to or about the other party, their family or household, nor permit or encourage others to do so;

b.    Communicating with each other unless that communication, or is necessary to facilitate the implementation, of these orders.

c.    Causing anyone other than themselves or their partner from collecting the children after school other than when the school is informed beforehand in writing (noting that this notification is a requirement imposed by the school); and/or

d.    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.

A.IT IS NOTED That the Mother intends to return to City D permanently as soon as practicable after the conclusion of the final hearing. These interim orders are predicated on a judgment being delivered prior to the commencement of the Children’s (Australian) end of Term 1 school holidays in 2019. In the event judgment is not delivered by that time further interim parenting orders will need to be made with respect to the Children’s time with the Mother.

FINAL ORDERS

Explanatory notes:

• The Father’s position is that the Mother should not be permitted to relocate the residence of the children to City D. The Mother’s position is that she should be so permitted. The Orders below outline the Orders that the parties seek in either eventuality on that issue.

• Both parties agree that the orders headed “Orders to apply if both parties live in the same town/city” should be made on either eventuality with respect to the determination of the relocation issue referred to in the above dot point.

• Unmodified text represents orders or portions thereof that the parties join in asking the Court to make.

• Underlined text (not including headings used for ease of references) represents proposals by the Father that are not agreed to by the Mother

• Struck through text represents proposal by the Mother that are not agreed to by the Father.

1. That the extant interim parenting orders made by consent in respect of B (born in 2006) and C (born in 2012) (the Children) made on 20 March 2018 be discharged and the final orders made by consent on that day be confirmed.

Orders to apply if the Mother’s Relocation Application is granted and the Father does not also move to the USA (Orders 2 – 8)

1. 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.

2. That consequent upon the Mother’s compliance with Order 2 above, the parties each be restrained from relocating the residence of the children or either of them away from City D, State E, United States of America, without:

   3.1     The written consent of the other party; or

   3.2     An order of a Court of competent jurisdiction pursuant to the Family Law Act 1975 (Cth).

3. That the Children live with the Mother.

4. That the Children spend time with the Father as agreed in writing, but failing agreement as follows:

   5.1     For up to 5 weeks during the City D summer school holidays, with the Father to determine whether that time occurs in City D or elsewhere, with such dates to be at the Father’s election and to be provided to the Mother not less than 28 days before the time is to occur.

   5.2     During the City D (Winter) school holidays:

   1)In Australia for the City D Christmas (Winter) school holidays in years ending in an even number or zero (noting that this will mean that the Father has the children for Christmas in these years) with the children to depart the US within 24 hours of the end of school and return to the US between 24 and 48 hours before the commencement of school;

   2)In years ending in an odd number (the years in which the Father does not have the children for Christmas), for two weeks in City D during December/January with the Father to determine the dates (noting that the dates cannot be between 23 December and 5 January). The Father will ensure that the children continue to attend school and any regular extra-curricular activities

   5.3     In addition to the time provided for in Orders 5.1 – 5.2 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:

   1)The time does not occur over the City D Summer or Winter school holidays, which time has already been provided for under these Orders.

   2)The Father gives the Mother not less than 21 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; and

   3)During 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.

   5.4     That for the purposes of implementing Orders 5.1 – 5.3 inclusive:

   1)The Father is to be responsible for the organisation and payment associated with the travel in Order 5.1 and 5.2.2 and the Mother to be responsible for the organisation and payment of travel associated with Order 5.2.1.

   2)That unless otherwise agreed between the parties in writing, the children are not to travel as unaccompanied minors for the purposes of Orders 5.1 or 5.2.1 until C attains the age of eight years, with the relevant parent paying for and organising the flights in a given year to arrange the responsible adult to travel with the children.

5. That the Children shall communicate with the Father via Skype, FaceTime, or other electronic communication on no less than two occasions per week, such occasion to be as agreed, and failing agreement as follows (with time references being to USA Mountain Standard Time):

   6.1     Thursday between 5:00pm and 7:00pm; and

   6.2     Sunday between 4:00pm and 6:00pm.

6. That for the purposes of Order 6, the Mother will initiate the Skype, FaceTime or other electronic communication and will ensure the children are available for the call.

7. That other than in circumstances of emergency, the party with whom the children are living will facilitate the children having Skype, telephone, or other electronic communication with the other parent at the request of the children (or either of them) provided such request is between 8:00am and 9:00pm and is reasonably practicable at the time of the request.

Orders to apply if both parties live in the same town/city (Orders 9 – 10)

1. The children are to spend time with each of the parties as agreed in writing, and failing agreement, as follows:

   9.1     Week about with changeover to occur as follows:

   1)On a school day, on Friday at the conclusion of school;

   2)On a school day, if one child is not at school but the other is at school, the party with whom the children are due to spend time will collect the child who is at school from school at the conclusion of school and will then collect the child who is not at school from the other party’s residence after school hours at a time to be agreed;

   3)On a school day, if both children are not at school, the party with whom the children are due to spend time will collect the children from the other party’s residence at the time school would have otherwise concluded;

   4)On a non-school day, on Friday at 4:30pm.

   9.2     With each parent for half of each school holiday period as agreed between the parties but failing agreement, with the Father for the first half of the holidays in years ending with an even number or zero, and with the Mother for the first half in years ending in an odd number.

   9.3     With the Father for the fourth Thursday in November (Thanksgiving) on the years in which he is not spending Christmas with the Children, and with the Mother in years in which she is not spending Christmas with the children.

   9.4     Notwithstanding Order 9.2 above, if the parties will be in the same town/city on Christmas Day, the party with whom the children are spending time will ensure that the children spend a minimum of three hours with the other parent on Christmas Day.

1. That other than in circumstances of emergency, the party with whom the children are living will facilitate the children having Skype, telephone, or other electronic communication with the other parent at the request of the children (or either of them) provided such request is between 8:00am and 9:00pm and is reasonably practicable at the time of the request.

Orders to apply if the Mother is not granted permission to relocate the residence of the Children to City D, State E, and the Mother chooses to nonetheless live in the United States of America (Orders 11 – 16)

1. That the each of the parties be restrained from relocating the residence of the children away from Canberra, Australia, without:

   11.1 The written consent of the other party; or

   11.2 An order of a Court of competent jurisdiction pursuant to the Family Law Act 1975 (Cth).

2. That the Children live with the Father.

3. That the Children spend time with the Mother as agreed in writing, but failing agreement as follows:

   13.1 In Australia, for 14 days (inclusive of travel times) during the ACT gazetted Term 1 school holidays, with such days to be nominated by the Mother no later than 28 days prior to the first such day;

   13.2 In the USA, for an up to four-week block period (inclusive of travel times) covering the ACT gazetted Term 2 school holidays to commence on a day as soon as practicable upon completion of Term 2 examinations and / or assessment and to conclude on a day such that the children can attend on the first day of the second week of Term 3, with such days to be negotiated with the Father no later than 28 days prior to the first such day, and with the parties to consult with children’s teachers to clarify end of term schedules and exams and explore the possibility of the children or either of them completing school-related tasks from the USA.

   Until B is in grade 10, in the United States of America:

   1)In years in which the children are spending Christmas with the Mother, for a block period of up to three weeks (inclusive of travel times) covering the ACT gazetted Term 2 school holidays, to commence on a day as soon as practicable upon completion of Term 2 examinations and / or assessment and to conclude on a day such that the children can attend on the first day of the second week of Term 3, with such days to be agreed between the parties no later than 35 days prior to the first such day and if no agreement is reached as nominated by the Father;

   2)And in years in which the children are spending Christmas with the Father, for a block period of up to four weeks (inclusive of travel times) covering the ACT gazetted Term 2 school holidays to commence on a day as soon as practicable upon completion of Term 2 examinations and / or assessment and to conclude on a day such that the children can attend on the first day of the third week of Term 3, with such days to be agreed between the parties no later than 35 days prior to the first such day and if no agreement is reached as nominated by the Father.

   After B commences grade 10, in the United States of America, for a block period of up to three weeks (inclusive of travel times) covering the ACT gazetted Term 2 school holidays to commence on a day as soon as practicable upon completion of Term 2 examinations and / or assessment and to conclude on a day such that the children can attend on the first day of Term 3, with such days to be negotiated with the Father no later than 35 days prior to the first such day.

   13.3 In Australia from the Sunday prior to Thanksgiving through to 23 December of that year (when contact commences in years ending in an odd number) or to 2 January in the following year (when contact in years ending in an even number or zero), or such lesser time as the Mother may be able to spend time with the children in light of her employment commitments, with the Mother to provide no less than 28 days’ notice to the Father of the time she will spend with the children pursuant to this order prior to the commencement of that time;

   13.4 In addition to the time provided for in Orders 13.1 – 13.3 inclusive, in the event the Mother is in Australia, the Children may spend a maximum of three weeks per occasion with the Mother, provided that:

   1)The time does not occur over Christmas in a year that the Mother would not otherwise spend Christmas with the children, or in the end of terms 3 or 4 school holidays, which time has already been provided for under these Orders.

   2)The Mother gives the Father not less than 28 days’ written notice of her intention to be in Canberra and spend time with the Children, and the dates that the Children will spend with her; and

   3)During the children’s time with the Mother, the Mother will take the children to their usual day-to-day activities, including school and extracurricular activities.

   13.5 That for the purposes of implementing Orders 13.1 – 13.4:

   1)The Father is to organise and pay for the children’s flights to and from the United States of America to the Mother’s place of residence for the purposes of the children’s expenditure of time with the Mother pursuant to Order 13.2. The Mother is to provide the Father with her residential location, and the Father is to provide the Mother with flight arrival and departure times in a no later than 28 days prior to the first date of contact, bookings (the travel dates having been negotiated between the parties as per Order 13.2 or 13.3)

   2)That unless otherwise agreed between the parties in writing, the children are not to travel as unaccompanied minors until C attains the age of eight years,

   3)The Mother is to organise and pay for her own flights to and from Australia for the purposes of Orders 13.1, 13.3, and 13.4, and is to provide the Father with her flight arrival and departure times no later than 28 days prior to the first date of contact.

   4)That in the event the Mother is unemployed or working less than full time hours (defined as fewer than an average of 30 hours per week) in the 8 weeks prior to the time in which the children are to spend with her pursuant to Order 13.4, the Mother be at liberty to request a contribution from the Father towards her accommodation costs in Australia up to a maximum of 50% or $2,500 Australian dollars, whichever is the lower amount, of her rent incurred during that period, with the Father to pay to the Mother that amount upon being provided with the relevant invoice or lease, and copies of her payslips for the previous 8 weeks demonstrating she is working less than full-time hours.

4. That the Children shall communicate with the Mother via Skype, FaceTime, or other electronic communication on no less than two occasions per week, as agreed, but failing agreement:

   14.1 Saturday at 9:30am (Canberra time); and

   14.2 Thursday at 7:30am (Canberra time).

5. That for the purposes of Order 14, the Father will initiate the Skype, FaceTime or other electronic communication and will ensure the children are available for the call.

6. That other than in circumstances of emergency, the party with whom the children are living will facilitate the children having Skype, telephone, or other electronic communication with the other parent at the request of the children (or either of them) provided such request is between 8:00am and 9:00pm and is reasonably practicable at the time of the request.

Parental Responsibility

1. That the Applicant Mother Ms Kerson (the Mother) and the Respondent Father Mr Blake (the Father) (collectively referred to as the parties) have equal shared parental responsibility for the children.

2. That, subject to Order 19, in the event Order 17 of these Orders requires the parties to make a joint decision on a major long term issue concerning either or both of the children per Section 65DAC(2) of the Family Law Act 1975 (Cth), the parties 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, the parties be at liberty to nominate an agent to communicate with the other party and relevant third parties (such as treating practitioners) on their behalf with respect to their obligations under Order 18 for any period in which either party is in transit and therefore uncontactable.

Facilitation of Parent/Child Communication

1. That both parties are to 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 be:

   20.1 Set up with relevant communication software including Skype, FaceTime, Hangouts and email; and

   20.2 To have appropriate parental control devices installed.

Travel

1. That pursuant to Section 65Y(2) of the Family Law Act (Cth), the parties are permitted to take the children to a place outside Australia in accordance with these Orders.

2. The parties can only travel to a non-Hague Convention country with the written permission of the other party.

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

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.

Provision of Information

1. That each party will notify the other party within 48 hours of any change of:

   25.1  residential address,

   25.2  person living in their residential address; and

   25.3  email, telephone, or mobile telephone number.

2. That each party will notify the other parent 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:

   26.1 Any illness, accident or injury suffered by the children, including any follow up treatment;

   26.2 Any significant medical, psychological or dental treatment provided to the children; and

   26.3 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. 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 parties and to release all information concerning the children to both parties as may be requested by either of them from time to time.

4. That for as long as C is determined to have asthma by an independent medical professional, that

   28.1 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

   28.2 That 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 is provided with any other medical or health related information relevant to the children at that time.

6. That the parties 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 parties be and are restrained from: 

   31.1 Saying unkind or unpleasant things to or about the other party, their family or household, nor permit or encourage others to do so;

   31.2 Communicating with each other unless that communication, or is necessary to facilitate the implementation, of these orders.

   31.3 Causing anyone other than themselves or their partner from collecting the children after school other than when the school is informed beforehand in writing (noting that this notification is a requirement imposed by the school); and/or

   31.4 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.

Procedural orders to be made in any event

1. That otherwise all outstanding applications and response are dismissed.

2. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

3. That pursuant to s.65DA(2) of the Family Law Act, 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 Fact Sheet, attached hereto and these particulars are included in these orders.