Kerson & Blake (No. 2)
[2020] FamCA 892
•13 November 2020
FAMILY COURT OF AUSTRALIA
Kerson & Blake (No. 2) [2020] FamCA 892
File number(s): CAC 1154 of 2017 Judgment of: BAUMANN J Date of judgment: 13 November 2020 Catchwords: CHILDREN – where the children live with the father in Australia – where it is in the best interests of the children to spend time with the mother in the United States of America – where current COVID-19 travel restrictions are considered – orders made for the children to spend time with the mother in the United States of America during school holiday periods Legislation: Family Law Act 1975 , s 60CC Cases cited: Kerson & Blake [2020] FamCA 674
Sampson & Hartnett (No 10) (2007) 38 Fam LR 315
Number of paragraphs: 30 Date of hearing: 2 October 2020 Place: Brisbane Solicitor for the First Applicant: Self-represented Solicitor for the First Respondent: Ms A Prest ORDERS
CAC 1154 of 2017 BETWEEN: MS KERSON
Applicant
AND: MR BLAKE
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
13 NOVEMBER 2020
THE COURT NOTING:
A.That on 20 August 2020 the Court ordered on a final basis:
(a)that the children, B born … 2006 and C born … 2012 (“the children”) live with the father in Australia; and
(b)that the parents have equal shared parental responsibility for the children,
and required further evidence and submissions as to time with the mother and other orders.
THE COURT FURTHER ORDERS ON A FINAL BASIS:
1.That in facilitating the Orders below whilst COVID-19 travel restrictions and personal conduct requirements in both Australia and the United States of America (“USA”) are in force, the parents shall at all times use their best endeavours to comply with all requirements of law that apply to the children’s travel under these Orders.
2.That, further, in compliance with the obligations identified in Order 1, the parents shall, in a timely manner, make any necessary applications for exemptions or approvals required to permit, if possible, travel under these Orders for the children to occur.
3.That unless otherwise agreed in writing between the parents, the children shall spend time with the mother as follows:
End of term four school holidays 2020
(a)During the end of year Australian Capital Territory (“ACT”) school holidays 2020, with the mother in the USA commencing with travel on or about 20 December 2020 with return to Australia, on or about 17 January 2021 on the following conditions:
(i)Noting that the Department of Home Affairs has granted the children permission to travel during this period, the children shall not be permitted to leave the Commonwealth of Australia UNTIL a confirmed return and paid flight from City L or City M to Sydney is available;
(ii)The parents shall share equally in the total costs of flights from Sydney to the USA and USA to Sydney, with the father to initially pay for and book the flight from Sydney to City L/City M and the mother to initially pay for and book the flight from City L/City M to Sydney;
(iii)Not less than seven (7) days prior to departure from Australia the parents shall provide, in writing, to the other parent details of the confirmation from the airline of the itinerary and confirmation of payment of the fare. Any payment adjusting the cost of travel between the parents shall be made on or before the date of departure from Australia;
(iv)The children shall fly unaccompanied directly between Sydney and City L or City M and return without any stop-over, unless otherwise agreed;
(v)If a parent elects to accompany the children, they shall be solely responsible for the costs of their travel;
(vi)If during this visit the mother elects for the children to spend time out of City D, then the mother shall at all times accompany the children interstate (by whatever form of transport she elects to use) and be substantially present at all times when the children are spending time out of City D; and
(vii)If, upon return to Australia, the children and an accompanying adult are required to undertake hotel quarantine, then the father shall initially pay the costs of such quarantine, with the mother to reimburse the father for 50% of the costs within one (1) month of demand being made by the father.
Thereafter contact with the mother in the USA
(b)In each calendar year thereafter the children shall spend time with the mother in the USA as follows:
(i)Up to three (3) weeks (inclusive of travel time) which includes the whole of the end of term two (2) ACT school holiday period and up to four (4) weeks (inclusive of travel time) during the end of term four (4) ACT school holidays;
(ii)The children shall fly unaccompanied on the same basis as set out at Orders 3(a)(ii), (iii), (iv) and (v);
(iii)The mother shall advise the father by 28 February each year the dates that she elects to spend time with the children in the USA for that calendar year under these Orders, noting that the children’s school calendar will be available by then. When the mother elects to spend three (3) weeks with the children that incorporates the end of term two (2) school holidays, the mother’s elected dates must indicate whether time before or after that scheduled school holiday period is sought;
(iv)In respect of the end of term four (4) school holidays, commencing December 2021 and each odd numbered year thereafter, the period of four (4) weeks (inclusive of travel) the children are to spend with the mother shall not commence before 27 December 2021 unless otherwise agreed in writing;
(v)In respect of the end of term four (4) school holidays, commencing December 2022 and each even numbered year thereafter, the period of four (4) weeks (inclusive of travel) the children are to spend with the mother shall not commence on or before the first Sunday after the end of term unless otherwise agreed in writing; and
(vi)The intent of Orders 3(b)(iv) and (v) is that the children spend at least Christmas Day with the father in odd numbered years and with the mother in even numbered years.
Physical time between the children and the mother in Australia
4.That if the mother elects to travel to Australia to spend time with the children in Australia, the children will spend time with the mother as follows and on the following conditions:
(a)The mother shall give to the father not less than ninety (90) days’ written notice of her intention to exercise time with the children in Australia;
(b)Such notice must include details of:
(i)Period of visit including proposed start and finish dates; and
(ii)Likely address where the mother will be staying in the ACT (if the time includes any school term time).
(c)Subject to any agreement in writing between the parents, the mother may elect up to two (2) periods to visit the children in Australia each calendar year – with such periods not exceeding two (2) weeks and not to include more than half of the end of term one (1) or three (3) ACT school holiday periods;
(d)The mother shall be solely responsible for all the travel and accommodation costs incurred for such visitation in Australia; and
(e)If a period of physical contact in Australia includes school days, then the mother shall ensure the children attend school and maintain extra-curricular activities (including those on weekends), which the children are otherwise engaged in at the time.
Electronic communication
5.That the children shall communicate with the mother via Skype, FaceTime, or other electronic communication on no less than three (3) occasions per week, as agreed, but failing agreement:
(a)Saturday at 9.30am (Canberra time) or half an hour after the mother finishes work on Friday (USA time) whichever is earlier;
(b)Monday at 7.30am (Canberra time); and
(c)Thursday at 7.30am (Canberra time),
but in the event the children are travelling on a weekend, then the communication provided for by Order 5(a) above then the father shall advise the mother in writing no less than forty eight (48) hours prior to the time she would otherwise ordinarily communicate with the children of their intended travel and the communication provided by Order 5(a) above will be suspended for that weekend but the father will make a reasonable effort to facilitate that communication notwithstanding its suspension.
6.That for the purposes of Order 5 above, the father will initiate the Skype, FaceTime or other electronic communication and will ensure the children are available for the call.
7.That when the children are in the USA with the mother for school holidays under this Order, the mother shall facilitate the children communicating with the father via Skype, FaceTime, or other electronic communication on no less than three (3) occasions per week.
8.That other than in circumstances of emergency, the parent 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.
9.That both parents 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:
(a)to be set up with relevant communication software including Skype or FaceTime, hangouts and email; and
(b)to have appropriate parental control devices installed; and
(c)to be logged into the child’s personal Skype, Facetime or other account and/or software (not the parent’s account) for their communication with the other parent.
10.That pursuant to s 65Y(2) of the Family Law Act 1975, the parents are permitted to take the children to a place outside Australia in accordance with these Orders.
11.That the parents can only travel to a non-Hague Convention country with the written permission of the other parent.
12.That the parents do all acts and things and sign all documents necessary to ensure both children have current passports at all times.
13.That the children’s passports be held by the father except when the children are travelling when they shall remain with the children for the period of overseas travel.
Provision of information
14.That each parent will notify the other parent within forty eight (48) hours of any change of:
(a)residential address,
(b)person living in their residential address; and
(c)email, telephone, or mobile telephone number.
15.That each parent 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.
16.That by this Order, all schools, medical, psychological or dental practitioners and organisers of extra-curricular activities are hereby authorised to discuss all matters relating to the children with both parties and to release all information concerning the children to both parents as may be requested by either of them from time to time.
17.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.
18.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.
19.That the parents are to advise any educational or child care facility used for the children of any allergy or other relevant medical information, prior to the children attending at any such facility.
Restraints
20.That both parents be and are restrained from:
(a)saying unkind or unpleasant things to or about the other parent, their family or household, nor permit or encourage others to do so;
(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.
21.That the parents shall have liberty to apply in respect of the enforcement or interpretation of these Orders.
22.That otherwise all outstanding applications and costs, save the father’s Application for costs of the adjourned final hearing (which is to be dealt with by submissions in accordance with the Orders made 2 October 2020), are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
BAUMANN J
INTRODUCTION
On 20 August 2020, the Court delivered reasons for its orders that the parties’ two children B (now aged 14 years) and C (now aged eight and a half years) live with the father in Australia (see Kerson & Blake [2020] FamCA 674).
Knowing the mother, who was anxious for the children to live with her in City D, United States of America (“USA”), would likely be distressed by my decision, I felt it proper to allow both parties a short period of time to make any further submissions they wished to make (either orally or in written form), before I pronounced orders as to the time the children were to spend with the mother in the USA, or in Australia if she was able to travel here.
Furthermore, as identified at least at paragraphs [106] to [110] of the said Reasons for Judgment, the challenges arising from the COVID-19 pandemic and its effect upon international travel, had not been the subject of specific evidence when the hearing finished on 1 May 2020 and is, in some ways, a moving feast. Directions were made for further evidence and submissions to be filed if they could not reach agreement, now that the major core issue of where the children would live had been determined.
Thereafter on 2 October 2020, the unrepresented mother and Ms Prest, solicitor for the father appeared before me by Microsoft Teams. Some USA based members of the mother’s family were permitted to view the proceedings on 2 October 2020, at the request of the mother, who also had use of a “Mackenzie friend” to support her.
THE ADDITIONAL EVIDENCE
The father’s Affidavit filed 25 September 2020 was subject, in part, to a reply Affidavit of the mother filed at 8.18am on 2 October 2020. I heard further oral submissions. Neither party was cross-examined. Arising from that evidence and submissions, I record the following matters:
(a)The mother disagreed with the father about the ability for the children to leave Australia at this time, whilst acknowledging that an application for an exemption to travel would need to be made;
(b)A direction was made for the father to seek the exemption to travel, initially for some of the next school holidays at the end of the Australian Capital Territory (“ACT”) term four. Subsequently, the father did make the required application and, on 14 October 2020 a delegate of the Department of Home Affairs/Australian Border Force, by email, advised the father that his request for an exemption from travel restrictions for B and C had been granted and “authorised” travel on “compassionate and compelling” grounds. The email from the Department has been marked as Exhibit 16 in these proceedings;
(c)There is a dispute between the parties as to the costs and availability of return flights. To a large extent, before the exemption had been granted, the dates of flights and their costs was somewhat speculative. No probative evidence was offered to the Court, although the parties say their enquiries reveal:
(i)The mother asserts that Delta Air Lines have flights for unaccompanied minors, at an estimated fee of $1,500 return, but she says “whatever it costs – it costs”. The mother’s belief is that getting flights is not a difficulty; whilst
(ii)The father says costs of return flights, on his enquiries, could be as much as AUD$13,000 to AUD$20,000 in total. Furthermore, he says even if there are bookings for a flight from the USA to Australia, there is a chance that passengers can be “bumped” to business class to retain the flights at significantly greater cost;
(d)The mother gave evidence that no quarantining requirements currently exist for persons disembarking from Australia and arriving in, for example, City L. The father did not contend otherwise. Currently, travel within the USA is not restricted however the father submits, to reduce the chances of the children contracting the virus, if the children do travel to the USA, then he seeks an order that the children be restricted to remain in City D;
(e)Unaccompanied minors returning to Australia may seek an exemption from the 14 day hotel quarantine requirement and, it seems, that subject to obtaining an exemption from ACT authorities, self-isolating in their own home would be an option. Travelling from Sydney airport to the children’s home in the ACT by car appears to be an available option, again subject to any necessary government exemptions being obtained;
(f)If the children do not attract an exemption from quarantine, upon entering Australia they and the father would need to enter into hotel quarantine for 14 days, during which testing obligations also are imposed. Also the costs of such hotel quarantine, in the region of $4,000, would need to be met by the father initially;
(g)The parents disagree when, at least, the holiday travel for the upcoming end of term four holidays should occur. The Court accepts the children attend public schools and the ACT school holidays commence on Saturday, 19 December 2020 and conclude on Sunday, 31 January 2021. Accordingly, unless orders permit return travel to cover some of term one 2021, the children should be back in Australia by Sunday, 17 January 2021, to allow for quarantine or self-isolation. I speculate that because other children may be seeking to return to Australia around the same time, flights may be difficult to secure or be more expensive;
(h)The father seeks orders such that the children spend time with him in Australia from midday on Christmas Eve until 10.00am Boxing Day. The mother disagrees on a number of bases, but at least because the children not leaving Australia until 26/27 December 2020 would reduce the time the children have available to spend with her in the USA;
(i)The father’s primary proposals (which were produced on 25 September 2020), set out in Appendix One to these Reasons, effectively seeks orders that until such time as Australian borders re-open to the USA and parties returning to Australia from the USA do not have to quarantine “the children shall not travel to the United States of America”. His Affidavit asserts (at paragraph 4) that whilst he does “consider it is in the children’s best interests to spend time with their mother, I do not consider it to be in their best interests or practical at this time or in the foreseeable future for the children to travel to the United States of America to spend time with her.”
(j)The mother, in reply, deals with the risks the father identifies but concludes that whilst “I will do whatever it takes to see my children and if I am ordered to Australia, I will have no choice but to go, but, objectively it does seem like the least practical arrangement and the most expensive option”. In respect of practicalities, the mother (at paragraph 11) says that if she came to Australia she would be required to quarantine for 14 days (when she could not physically interact with the children), and apart from additional costs of car hire, accommodation and the like, she is unable to “extend my leave from my USA work for more than 3 – 4 weeks maximum”. The Court would not make any coercive order compelling the mother in this case to travel to Australia (see Sampson & Hartnett (No 10) (2007) 38 Fam LR 315). To do so would be unreasonable. Furthermore, the mother should not have to contemplate giving up her well paid employment so that she can spend more time with the children – although she said she would do so, such is the level of dire desperation she has reached in not having meaningful contact with the children.
As I move through an analysis of the various issues, I start with a finding that it is in the best interests of the children that they spend time with the mother in the USA. I accept they have multiple members of both the maternal and paternal families who reside and are scattered around the country. The mother says, and I accept, that the boys have four elderly grandparents in the USA and if a visit does not occur in the forthcoming holidays, there is a possibility they might not see some of them again. The mother, with some emotion, says some sacrifices this year by the father should occur for the long term best interests of the children and their sense of identity.
I make the following findings which go to elements of risk the father contends are unacceptable at this time, if the children are permitted to travel to the USA for some of the 2020/2021 Christmas school holidays and other practicalities.
TRAVEL RESTRICTIONS
The challenge in making final orders which require (as opposed to allow) travel overseas between Australia and the USA in these times should not be ignored. As a result, I will make final orders complimentary to the core orders of residence and parental responsibility already pronounced, but allow for liberty to apply to the Court limited to clarification or enforcement. I did contemplate making only interim orders for the forthcoming holidays, however decided the parents need an end to this litigation and final orders are preferable.
I do not ignore, but do not anticipate, the possibility of further disputes between these parents requiring Court intervention. Sadly, as my earlier reasons reflect, these parents are still in high conflict and generally use words as weapons. In the tension between highly prescriptive orders and less prescriptive orders, where good intelligent parents should be able to resolve disputes that arise in the future, I elect to tend more towards the less prescriptive form of order.
I find, on the evidence, travel to and from the USA is possible at this time but requires various approvals and exemptions by authorities, and they may change over time. No orders I make can override the laws of Australia or the USA as to border restrictions. Similarly, the Court cannot predict with certainty when flights are available, or at what cost. These last two issues do not go entirely to risk factors – but other factors such as ability to pay and contribute to costs also arise for consideration. I will permit the children to fly unaccompanied together, although I accept this does put a further emotional burden on the older child B. All the evidence satisfies me that he will carry that responsibility well.
RISKS
I deal with other risk factors as follows:
(a)I cannot find there are no risks that international travel may expose the children to contracting COVID-19 at the current time, or even if a vaccine is available, whenever that might be. The father, at paragraph 6(d)(iii), expresses a concern “about giving them a new vaccine before it is widely tested”. In my view, where these parents have equal shared parental responsibility, they must consult before any vaccine is administered;
(b)Apart from travel on the aircraft and to the gate, these children would be accompanied by airport staff. There is no evidence to suggest that short journey will put them at greater risk. Use of personal protective equipment (like a face mask) whilst on the plane is probably monitored by airline staff;
(c)However all the evidence reveals both parents, by training and experience, are acutely aware of the potential risks. I accept that by reference to the bare figures which the father has summarised from publicly available data (see paragraph 6(d)(iv) to (vii)), that the children are more at risk in the USA than in the ACT. However, from the time the children arrive at the gate in the USA, the mother will be hyper-alert and vigilant not to expose the children to risks – known to be exacerbated by things such as poor handwashing; allowing cold symptoms to go untested; not maintaining social distancing and the like. She is a highly trained healthcare professional and currently, in her employment, is managing infection risks in her workplace. It is not accepted that this mother would ever knowingly, deliberately or negligently expose the boys to the risks of catching the virus just because of her desperate desire to see them physically; and
(d)The father contends that if the children were to travel to the USA, they should be restricted to City D. Whilst this might impede other relations from the USA coming to them, there is some merit in the father’s proposal unless the mother is with them. In this regard, without seeking to suggest other relations would be less vigilant or aware than the mother is to these risks, for the upcoming holiday I will require the mother to be present for the children’s interaction with others and in other places. She will be obliged to travel with them – and the boys will not be permitted to be put on an internal flight or otherwise travel to another city without her being present for the journey and at the destination after arrival for the length of time they are not in City D. This requirement on the mother brings into sharp focus her availability which, on her evidence, is a maximum of four weeks away from work each year. I accept this might mean other relations outside of City D will most likely be required to travel to City D to spend time with the boys at the mother’s home.
For the reasons given, I am not satisfied that the risks set out are such as to outweigh the benefit the children will derive from travelling to the USA for part of the forthcoming holidays or thereafter.
OTHER ASSERTED ISSUES TO BE CONSIDERED
I accept, as the father submits, that it may be difficult to secure a return flight – and even if secured, current media reports (which are not necessarily reliable evidence), suggest at times even persons with a confirmed return flight back to Australia are subjected to flight cancellations or being obliged to pay extra for an upgraded flight to secure a seat. Whilst the mother from her perspective does not agree with this likelihood, she says if it occurred then she is able to assist with remote learning from the USA until the children can return.
Whilst it is feasible that the children could interact electronically with their school, as the father points out, the ACT students had returned to face-to-face learning since July 2020. There is no evidence as to, even if the school can make a teacher available at times, whether the frequency of interaction will be such as will not diminish the quality of the boys’ education. Furthermore, particularly B, is reaching a stage of his education and social interaction that in my view makes long absences from his school campus undesirable. Whilst a week or two might not impede either child’s education, I do not regard it as in their best interests that the children be exposed to long or multiple absences from their school.
Also with the mother’s full-time work obligations, if the children were to spend more than four weeks a year in the USA (even if all confined to their school holiday periods), then the mother, I infer, would need to rely on family and friends to care for the children when she is at work. Whilst this is not much different from most Australian based working parents, as the children live in Australia, the opportunity for school friends, families or school based holiday support exists in the ACT.
I have tried to explain, particularly to the mother, the number of impediments that, in my view exist now and into the future if these children are required to spend – as the mother now seeks (see paragraph 17 of her Affidavit):
(a)six weeks in City D with the mother over December/January;
(b)six weeks with the mother during the July/August period; and
(c)hopefully one week of the end of terms one and three school holidays in City O,
the father’s proposal under Appendix One, if the mother came to Australia, was a total of up to eight weeks.
Again, this configuration totalling 14 weeks exceeds the mother’s holiday entitlements (on her evidence) and would involve very significant costs of travel. Although for the children, opportunities to spend time with the mother’s extended family and friends of the family would probably occur in City D, this length of holidays away from Australia would not be in the children’s best interests because:
(a)they would inevitably miss some schooling;
(b)they would have little chance to engage with school friends and peers in recreational holiday activities;
(c)they would have little chance to engage with the father over holidays; and
(d)it involves significant travel for the children (and “jet lag”) and costs for the parents.
Whilst I would not suggest in the future the mother would not travel to Australia to see the children, at this time her evidence is it would offer little chance to engage with B and C; would be limited in time and other costs make it impractical.
Accordingly, on the basis of the findings made, I propose to prescribe the period of time and conditions of travel for the forthcoming school holidays and thereafter prescribing the period of time during the end of term two school holidays (up to three weeks) and end of year school holidays (up to four weeks). I accept this total period of seven weeks exceed the mother’s available holidays but I am confident she will make suitable arrangements with either her employer, family or friends. For this year however, I will require the mother to be available for the full period of the children’s time with her. Although I accept the father would seek to have Christmas Day this year with the children, because I will require the children to have a return flight enabling them to return to Australia by 17 January 2021, to allow the children a reasonable period of time with the mother, they will spend Christmas Day 2020 in the USA.
Thereafter, from 2021 and odd numbered years thereafter, unless otherwise agreed, the children’s time with the mother over the end of year school holidays will commence after Christmas Day in odd numbered years, and in even numbered years will commence from approximately the commencement of the school holidays.
In permitting the children to spend up to three weeks out of Australia in the mid-year holidays, I accept this is likely to include one week of school time. On balance, I am prepared to permit that absence for the benefit of the children spending time with the mother. I regard it as preferable to end of year or start of year absences.
Whilst these two visits a year to the USA are not as frequent (or as long) as the mother proposes, and these arrangements (in the absence of any other agreement the parents might reach from year to year) are not perfect, as my earlier Reasons make clear, there are few optimal outcomes where the distances involved apply.
For these two trips a year, even though the mother’s income exceeds the father’s current income, I regard it as appropriate that the parents share equally in the costs of travel from Sydney to City L (or City M) and return.
I considered, but ultimately rejected, a condition on travel for the forthcoming holiday, to limit the costs to a figure of $3,000 or $4,000 as the father submitted, as it would be totally arbitrary and I would not wish the costs to effectively prevent travel. In the future it is reasonable to assume that travel costs will return to “normal” eventually.
It is the Court’s view that the children should not leave Australia until there are purchased return flights booked. The decision to require the flights to be booked to return by 17 January 2021 is set this year to make allowance for change of quarantine obligations (if any) and possible delayed return. I accept that if, before the children leave Australia, certainty of return through a paid return flight is not possible, then sadly they will not be able to travel to the USA this Christmas. It is not in their best interests to remain stranded in the USA through cautious lockdown restrictions. Again, I accept this is a moving feast – more so it seems in the USA than Australia. Although the father obliquely refers to the result of the USA Presidential election as a ‘risk’, there is no way of assessing those future results and outcomes. Doing the best I can in the best interests of B and C, I determine both parents (who are and remain USA citizens), should try and make the visit this year happen. I accept, in these very difficult and uncertain circumstances, more than usual, there are no absolute guarantees. I hold empathy for the mother’s position – but of course, that is not the test and in many ways flow from the mother’s unilateral decision to leave Australia permanently after the first trial before Gill J.
The orders which appear at the commencement of these Reasons are in the children’s best interests and, by reference to other collateral issues raised in the proposals of the parties at the conclusion of the trial, I find:
(a)the children are contacted by their mother nearly every morning. I do not regard it as in the children’s best interests to prescribe daily time – although the father does not seek to restrict time. Sensibly, in my view, whilst time by Skype or other electronic means might take place outside of prescribed time, I accept the father’s proposal at paragraphs 3, 4 and 5 of the father’s proposed orders at the time of the trial is appropriate. The Family Consultant did not support prescribed daily interactions. I agree that has the likelihood of being intrusive into the routines in the father’s home;
(b)at paragraph 114 of my earlier Reasons, I indicated that these further Reasons would deal with a range of collateral issues (including those set out in the mother’s proposed orders numbered 20 to 36.5). I do so in an abbreviated form without trying to descend into the drafting style of the mother but rather to concentrate on the issues the mother seeks to cover, but generally in a less prescriptive form;
(c)I regard proposed orders 9, 10, 11 and 12 of the father’s proposed orders at the time of the trial to be appropriate (in many ways reflecting earlier Orders of Gill J made 4 May 2018;
(d)the children’s passports should be held by the father, with of course the passport travelling with the children, when they are travelling;
(e)I incorporate proposed orders 14, 15, 16, 17, 18, 19, 20 and the restraints at proposed order 21 of the father’s proposed orders sought at the trial, with various amendments and additions as now set out arising from the mother’s proposed orders presented for the trial. I again accept that the father’s orders broadly mirror the terms of Orders made by Gill J, but in adopting that language I do so in the exercise of my independent discretion and not merely adopting the form of orders that were set aside by the Full Court, noting that many of the Orders appeared, on the evidence before me, to have met the needs of the children;
(f)turning then to the mother’s additional and varied orders, I find that:
(i)I regard the form of order proposed by the father as to communication is preferable to the highly prescriptive orders sought by the mother at paragraphs 20 to 27. Whilst not seeking to criticise the mother’s drafting, it involves statements of principle which confuse the meaning of an enforceable order. In any event, as the children have demonstrated, they are more than capable of ensuring communication with their mother occurs – although I suspect as they get older – not as frequent as the mother seeks. Furthermore, it is not appropriate to incorporate orders in respect of third parties (e.g. grandparents), who are not parties to these proceedings;
(ii)the mother’s proposed order 28 is not necessary, and the simple provisions of equal shared parental responsibility means, absent any other orders, that upon the death of a parent, the other parent assumes total parental authority;
(iii)proposed order 30 again seeks to impose some obligations for a parent, when the children are in their care, to “arrange visitation with their own family/friends/community, independent of the other parent’s travel/visitation arrangements such that the children do not suffer unduly”. Whilst the Court understands the mother’s intent, when the children are in the care of a parent, it is appropriate that parent have flexibility and authority to decide who they might arrange to visit. Similarly, I do not regard it as appropriate to restrict who “drives” the children in cars. That is a matter best left to the parent caring for the children at that time. Similar restrictions on the identification of accommodation are not, in this case, on the evidence, appropriate;
(iv)the mother’s proposes (see order 31) the creation of a travel fund, from which, after equal deposits from each parent, airfares for the children would be paid. However, the terms of the proposed orders contained a number of conditions, including:
A.each parent shall contribute USD$5,000 per annum into the fund in two instalments if necessary;
B.tickets are to be purchased “in a timely fashion with financial prudence in mind but also with the best interest of the children as a priority – i.e. avoiding multi-leg trips and overly long layovers…”
C.the children should not travel unaccompanied, with this restriction to be “revisited” yearly “as the children continue to mature and grow in confidence”;
D.the fund shall cover the cost of obtaining health/travel insurance for the children;
E.where the father’s travel costs to the USA are covered by his employer the mother may request up to half the cost of her own travel from the fund;
F.in the case of a “true emergency… either party may seek to access assistance from the fund” with a payment requiring the consent of both parents;
G.each family member have a frequent flyer account with every airline that flies to/from Australia with reward “miles” being used or transferred “by either parent to facilitate ticketing for international travel for the children”. Furthermore, the mother proposed (order 31.2.1) that the father “donate” his miles earned on any travel he has not personally funded;
H.as an alternate position, the mother at 31.3.4 effectively proposes (where the children live in Australia) that:
(i) the mother would pay for all travel costs for herself and the children to City O at the end of term one;
(ii) the father would pay for all travel costs for himself and the children for the end of term two holidays in the USA;
(iii) the mother would pay for all travel costs for herself and the children to City O at the end of term three;
(iv) in the years the children travel to the USA for the end of school year Christmas holidays, the parents are to contribute equally to the children’s airfares.
(g)for the reasons already given, the Court will order the children to spend time in the USA with the mother for three weeks at the end of term two holidays and four weeks in the end of year holidays, unless the parties otherwise agree in writing to other holidays;
(h)in my view, even though the mother’s current income exceeds the father’s current income, I believe each party can afford and it is appropriate that they contribute 50% of the return airfares from Sydney to City L/City M. I agree both parties are likely to minimise the costs of airfares, but utilisation of the family frequent flyer miles, whilst a good idea, for this couple it would be problematic and, I assess, unwieldy. Of course they could, without any orders, agree to put in place some frequent flyer accounts, however the Court will not order it occur;
(i)the orders as to payment of airfares are set out at the commencement of these Reasons which specify:
(i)specific arrangements for the proposed trip in December 2020/January 2021, to try to take account of the unusual circumstances currently existing; and
(ii)continuing arrangements for future travel.
(j)if a parent can (or wishes) to travel on airlines with the children, the parent’s travel costs will be the responsibility of that parent;
(k)if the mother elects to travel to Australia in the future, then all travel costs, accommodation expenses and internal travel costs shall be her sole responsibility. Accepting, as the Court does, that the mother’s annual holiday entitlement from employment does not even equate with the seven weeks in the USA the Court will permit, it is difficult to envisage how the mother could travel to Australia however, as these are final orders and her situation might change, the provision for such travel will be made;
(l)on balance, a travel fund created for these parents living in different countries and not communicating well, is problematic;
(m)although the Court appreciates the mother’s desire to define what each parent should encourage the children to do (and the Court does not suggest her intentions as described are without merit), each parent should, when the children are in their care, have flexibility of deciding which extended family or friends they see and which “national parks and historical sites” they visit. The Court should not make orders which could lead to further proceedings (s 60CC(3)(l)), and as a result the Court is not persuaded to make the mother’s proposed orders – 35, 35.1, 35.2 or 35.3; and
(n)I have already indicated the forms of “restraints” and “sharing of information” I regard as appropriate.
FINAL CONCLUSION
The orders made now are based on the evidence at the trial and the more recent further evidence by Affidavit and submissions received on 2 October 2020.
It is not appropriate for orders to be shaped by events after 2 October 2020 in the USA, in the absence of a re-opening of these proceedings.
Sadly, the orders make it clear that even though the children now have an exemption to travel to the USA, if a guaranteed paid booking to return in January 2021 cannot be achieved, it is not in their best interest to travel at that time.
I accept not travelling would be devastating for the mother and distressing for the children. I have already found that travel to the USA is in the best interests of the children generally. However, the Court cannot support the children leaving Australia without certainty of return, in the circumstances where for reasons already delivered, it has found it is in the best interests of the children that they live in Canberra, Australia with their father.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 13 November 2020
APPENDIX ONE
1.That unless otherwise agreed between the parties in writing:
1.1.That until such time as:
1.1.1Australian borders re-open to the USA; and
11.2.Parties returning to Australia from the US do not have to quarantine
the children shall not travel to the United States of America.
1.2In the event the children are not already spending time with the Father for Christmas 2020 that the children B (born … 2006) and C (born … 2012) spend from 12:00pm on Christmas Eve 2020 until 10:00am Boxing Day morning 2020 with the Father.
1.3If the Mother is able to travel to Australia in the December 2020/January 2021 school holiday period, then the children shall spend time with the Mother in Australia for a period of up to four weeks as agreed between the parties in writing and failing agreement this period shall occur in the four weeks between 28 Dec 2020 and 25 Jan, 2021 of the school holiday period.
1.4If the criteria referred to in Orders 1.1.1 and 1.1.2 above are not met by the April 2021 school holidays AND IF the Mother is able to travel to Australia in the April 2021 school holiday period, then the children shall spend time with the Mother in Australia for a period of up to four weeks as agreed between the parties in writing and failing agreement for both weeks of the April school holiday period and changeover shall occur at the Father’s residence.
1.5Order 1.4 above is to apply whether the Mother travels to Australia only in April 2021 or in both the December 2019/January 2020 school holiday period and again in April 2021.
1.6If the criteria referred to in Orders 1.1.1 and 1.1.2 above are not met by the July 2021 school holidays AND IF the Mother is unable to travel to Australia in the April 2021 school holiday period, but is able to travel to Australia in the July 2021 school holiday period then the children shall spend time with the Mother in Australia for a period of up to two weeks as agreed between the parties in writing and failing agreement for both weeks of the July school holiday period and changeover shall occur at the Father’s residence.
1.7.If the criteria referred to in Orders 1.1.1 and 1.1.2 above are not met by the December 2021/January 2022 school holidays and the Mother is able to travel to Australia at that time then the Mother shall spend the first half of the December 2021/January 2022 school holidays with the children in Australia and changeover shall occur at the Father’s residence.
1.7.1.Notwithstanding Order 1.7 above, the children shall spend time with the Father on Boxing Day 2021 from 10:00am until 3:00pm and changeover shall occur at the Father’s residence.
2.That the children shall communicate with the Mother by Skype, Facetime, or other electronic communication on no less than three occasions per week, as agreed, but failing agreement:
2.1.Saturday at 9:30am (Canberra time) or half an hour after the Mother finishes work on Friday (USA time) whichever is earlier; and
2.2.Monday at 7:30am (Canberra time); and
2.3.Thursday at 7:30am (Canberra time).
IN THE ALTERNATIVE
1.That unless otherwise agreed between the parties in writing:
1.1.That until such time as:
1.1.1.Australian borders re-open to the USA; and
1.1.2.Parties returning to Australia from the US do not have to quarantine the children shall not travel to the United States of America.
the children shall not travel to the United States of America.
1.2.In the event the Mother is able to travel to Australia at any time in any of the ACT School Holiday periods between the making of these Orders until such time as the criteria referred to in Orders 1.1 and 1.2 above are met, then Father shall do all reasonable things to facilitate the children spending time with the Mother in the ACT or in Sydney, NSW for a period of no less than one month unless the Mother is in Australia for a period of less than two weeks in which case the Father shall do all reasonable things to facilitate the children spending time with the Mother for the maximum period up to one month she is available to spend with them as agreed between the parties in writing.
1.3.For the purpose of Order 1.2 above, the Mother shall not spend time with the children in more than two school holiday periods in any given calendar year.
1.4.In the event the children are not already spending time with the Father for Christmas 2020 that the children B (born … 2006) and C (born … 2012) spend from 12:00pm on Christmas Eve 2020 until 10:00am Boxing Day morning 2020 with the Father.
1.5.That until such time as the criteria referred to in Orders 1.1.1 and 1.1.2 are met, the children shall spend time with the Mother in Australia for the first half of the December/January school holidays in years ending in an odd number if the Mother is able to travel to Australia.
1.5.1.Notwithstanding Order 1.5.1, the children shall spend time with the Father in odd number years on Boxing Day from 10:00am until 3:00pm.
2.That the children shall communicate with the Mother by Skype, Facetime, or other electronic communication on no less than three occasions per week, as agreed, but failing agreement:
2.1.Saturday at 9:30am (Canberra time) or half an hour after the Mother finishes work on Friday (USA time) whichever is earlier; and
2.2.Monday at 7:30am (Canberra time); and
2.3.Thursday at 7:30am (Canberra time).