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:
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:
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…
Continue reading KERSON & BLAKE
Sign in free to access the full text
- AGLC
- KERSON & BLAKE [2018] FamCA 294
- Case
- [2018] FamCA 294
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to permit the international relocation of the children. This involved assessing the best interests of the children, considering factors such as the mental health of the parents, the impact of a move on the children's relationship with both parents, and the practicalities of shared parenting arrangements across international borders. The court also considered the procedural aspect of providing a prompt trial.
The court's reasoning, as reflected in the orders made by consent, indicates a decision to restrain the relocation of the children away from Canberra without the written consent of the other party or a court order. The orders established a detailed schedule for the children to spend time with each parent, including provisions for week-about arrangements, school holidays, and specific days like Thanksgiving and Christmas. The court also mandated equal shared parental responsibility and facilitated communication between the children and the non-resident parent through electronic means.
By consent, the court ordered that the children live with the father, Mr Blake, and established specific arrangements for the children to spend time with the mother, Ms Kerson, both within Australia and in the United States of America. These orders included detailed provisions for travel, communication, and the exchange of information concerning the children's health and well-being, with the overarching aim of maintaining the children's relationships with both parents.
Orders
Orders of the court
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
4.
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”).
5.
That the Children live with the Father.
6.
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.
7.
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).
8.
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.
9.
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
10.
That the parties have equal shared parental responsibility for the Children.
11.
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.
12.
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
13.
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
14.
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.
15.
The parties can only travel to a non-Hague Convention country with the written permission of the other party.
16.
That the parties do all acts and things and sign all documents necessary to ensure the Children all have current passports at all time.
17.
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
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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
24.
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.
25.
That otherwise all outstanding applications and response are dismissed.
26.
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.
27.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.