Simpson and Caldridge
[2009] FamCA 494
•3 June 2009
FAMILY COURT OF AUSTRALIA
| SIMPSON & CALDRIDGE | [2009] FamCA 494 |
| FAMILY LAW – CHILDREN – Best interests FAMILY LAW – CHILDREN – Substantial and significant time FAMILY LAW – CHILDREN – Relocation |
| Family Law Act 1975 (Cth) |
| A&A (Relocation Approach) (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852 Bolitho & Cohen (2005) FLC 93-224 U & U (2002) FLC 93-112 M & S (2007) FLC 93-313 Goode & Goode (2006) FLC 93-286 Taylor & Barker (2007) FLC 93-345 Sampson & Hartnett (No. 10) (2007) FLC 93-350 Rosa & Rosa [2009] FamCAFC81 R & R (1998) FLC 92-820 Wiley & Wiley [2008] FamCAFC 153 Lamereaux & Noirnot (2008) FLC 93-364 |
| APPLICANT: | Ms Simpson |
| RESPONDENT: | Mr Caldridge |
| FILE NUMBER: | MLC | 11927 | of | 2007 |
| DATE DELIVERED: | 3 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | DESSAU J |
| HEARING DATE: | 4-7 May 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Davis |
| SOLICITOR FOR THE APPLICANT: | Middletons |
| COUNSEL FOR THE RESPONDENT: | Ms Weiner |
| SOLICITOR FOR THE RESPONDENT: | White Just & Moore |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
All previous parenting orders, including the Airport Watch List order made on 11 October 2007 in relation to the children of the marriage namely J born on … June 2001, N born … April 2004 and M born … April 2008 shall be and are hereby discharged.
The parents shall retain equal shared parental responsibility for the children.
The children shall live with the mother.
The father shall spend time with J and N as follows:
(a)In week one from Thursday after school until before school on Monday, commencing 11 June 2009;
(b)In week two from after school Thursday until before school on Friday, commencing 18 June 2009;
(c)For one half of all school term holidays by agreement and in default of agreement the first half, being from after school on the last day of school until 5.00pm on the middle Saturday of the school holidays;
(d)For one half of the summer school holidays provided that each parent shall have the children with them for one block of 14 days, noting that the school holidays are defined to commence from the conclusion of school until 6.00pm the day before the new school year.
The father shall spend school term time with M as follows:
(a)Until she is 20 months’ old:
(i) In week one on Monday, Thursday and Friday for a period of five hours, and on Sunday for a period of eight hours, as agreed, commencing 11 June 2009;
(ii) In week two on Thursday and Friday for a period of five hours, as agreed, commencing 18 June 2009;
(b)When she turns 20 months’ old:
(i) In week one on Monday, Thursday and Friday for a period of five hours, as agreed, and on Sunday from 2:00 pm until 9.00 am Monday;
(ii) In week two on Thursday and Friday for a period of five hours, as agreed.
(c)When she turns 30 months:
(i) In week one on Thursday and Friday for a period of five hours, as agreed, and on Sunday from 10:00 am until 9.00 am Monday;
(ii) In week two on Thursday and Friday for a period of five hours, as agreed.
(d)When she turns three years of age:
(i) In week one on Thursday for a period of five hours, as agreed, and on Saturday from 2.00pm until 9.00am Monday; and
(ii) In week two on Thursday and Friday for a period of five hours, as agreed.
(e)When she turns four years of age:
(i) In week one on Thursday for a period of five hours, as agreed, and on Saturday from 10.00am until 9.00am Monday; and
(ii) In week two on Thursday and Friday for a period of five hours, as agreed.
(f)When she turns five years of age:
(i) In week one on Thursday for a period of five hours, as agreed, and on Friday from 3.30pm until 9.00am Monday; and
(ii) In week two overnight on a Thursday with the other children.
(g)When she starts primary school:
(i) On the same basis as J and N.
The father shall spend school holiday time with M on the same basis as J and N once M starts primary school, but until then the regime set out in paragraph 5 of these Orders shall continue in the school holidays save that in the summer school holidays the mother shall have M with her for the same 14 day block that she has the other children.
The father shall spend time with all the children on the following special occasions:
(a)In 2010 and each alternate year thereafter on Halloween (31 October) in the event it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;
(b)In 2010 and each alternate year thereafter on 4 July in the event it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;
(c)In 2010 and each alternate year thereafter on Thanksgiving;
(d)Each year on Australian Father's Day (the first Sunday in September) from 10.00am until 7.00pm;
(e)Each year on the father’s birthday (… March) as follows:
(i) If the father’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm; and
(ii) If the father’s birthday falls on a week-end, then from 10.00am until 7.00pm;
(f)Each year on each of the children’s birthdays as follows:
(i) If the relevant child’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm;
(ii) If the relevant child’s birthday falls on a week-end, then from 3.00pm until 7.00pm; and
(g)Subject to paragraph 11 of these Orders, each year during the Christmas period as agreed between the parties and in the absence of agreement as follows:
(i) From 3.00pm on 24 December until 3.00pm on Christmas Day in any odd numbered year; and
(ii) From 3.00pm on Christmas Day to 3.00pm on 26 December in any even numbered year.
The father’s time shall be suspended as follows:
(a)In 2009 and each alternate year thereafter on Halloween (31 October) in the event that it falls on a weekday from after school (3.30pm) until 7.00pm, and if it falls on a week-end, from 10.00am until 7.00pm;
(b)In 2009 and each alternate year thereafter on 4 July in the event that it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;
(c)In 2009 and each alternate year thereafter on Thanksgiving from after school (3.30pm) until before school on the Friday;
(d)Each year on United States and Australian Mother's Days (both on the second Sunday in May) from 10.00am until 7.00pm; and
(e)Each year on each of the children’s birthdays as follows:
(i) If the relevant child’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm; and
(ii) If the relevant child’s birthday falls on a week-end, then from 10.00am until 3.00pm.
The father shall collect the children from and deliver the children to the mother’s home for all changeovers that do not occur at the school.
The children shall be permitted to telephone the other parent at any time and each parent shall encourage and facilitate reasonable telephone calls.
That sub-paragraph 4(a) and (b) shall be suspended during term and summer holiday periods and shall recommence as if the school holidays had not intervened.
The mother shall be permitted to take the children for a holiday to America for one period not exceeding four weeks in each year, incorporating the Christmas period in each second year if she chooses, provided she gives the father:
(a)Three months’ prior written notice;
(b)An itinerary of the trip and a copy of return air tickets for herself and the children and details of where they will stay, at least one month before departure; and
(c)A contact number for the children whilst they are in the United States of America.
In the event the mother takes the children to America, she shall provide make-up time for the father on the week-end immediately before and the week-end immediately after any such holiday, and if it is in the Australian summer school holidays, for a block of 14 days’ of the holiday time, provided that M shall not spend more of that time with her father in any one block than commensurate with the regime in these Orders according to her age at the time.
The parties shall do all acts and things and sign all such documents as may be required to obtain the following for M:
(a)US Consulate Report of Birth of Abroad;
(b)US Social Security Number;
(c)American Passport; and
(d)Australian Passport.
The parties shall do all acts and things and sign all such documents as may be required to obtain or re-new and keep renewed (as the case requires):
(a)J’s American and Australian passport;
(b)N’s American and Australian passports; and
(c)M’s American and Australian passports.
The parents shall share equally any of the costs associated with complying with paragraphs 14 and 15 of these Orders.
The solicitors for the mother shall hold the passport and shall release them to the mother and/or father only after receiving the written consent of both parties.
The parents shall use a communication book or e-mail for all discussion, notification and advice of medical, education and personal notes concerning the children, and shall exchange that book regularly.
The parents shall keep each other notified at all times of their residential address and contact phone numbers.
The parents shall notify the other parent as soon as practicable in the event that any of the children suffer any illness or injury whilst in their care.
The mother shall do all acts and things and sign all such documents as may be required to authorise the children’s respective educational institutions to provide to the father, at his expense:
(a)Copies of all school reports and any other reports relating to academic or other progress and behavioural issues in relation to the children; and
(b)all notices received from the children’s respective educational institutions as well as details of all functions, parent/teacher interviews, and other activities to which parents are ordinarily invited, and that the father shall be at liberty to attend at such functions, interviews and activities.
The parents (together and by themselves) shall be and are hereby restrained from denigrating the other parent and/or members of the other parent’s family, in the presence and/or hearing of the children.
The Independent Children’s Lawyer shall be discharged.
Pursuant to s.65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
IT IS NOTED
That the parties agreed that the time in paragraph 5(b)(i) refers to two separate Mondays.
IT IS NOTED that publication of this judgment under the pseudonym Simpson & Caldridge is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11927 of 2007
| MS SIMPSON |
Applicant
And
| MR CALDRIDGE |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Caldridge (“the husband”) and Ms Simpson (“the wife”) have three children, J who is almost 8, N who is just 5, and M, born six months after her parents’ separation, who is now 12 months’ old.
At the heart of the dispute is the wife’s strong desire to relocate the children to America and the husband’s strong desire for the children to remain in Australia. If she cannot relocate the children, the wife proposes to stay with them in Australia.
If the children are in Australia, the husband wants the two older children to spend equal time in each household. The wife says they should live with her and spend substantial and significant time with their father, but not equal time. The parents agree that M’s time with him should be built up in an age-appropriate manner, but they cannot agree on the actual regime.
BACKGROUND
The husband is Mr Caldridge. He is aged 45 and is employed at a tertiary institution. The wife is Ms Simpson. She is aged 43, and is presently engaged in home duties.
The wife was born and brought up in the United States of America. She undertook her tertiary studies there, save for a post graduate Masters Degree in Australia in 1988. She then returned to live in America, and worked in a senior executive management role.
The husband was born and brought up in Tasmania. He qualified in a profession in Tasmania in about 1986 and in 1995 he went to work in America.
The parents met in Washington DC in 1995. They started to live together in Georgia in March 1998, and were married in June 1999. In 2002 they moved from Atlanta to live in Washington DC.
The older two children were born in America: J in June 2001, and N in April 2004. Both children have Australian and American citizenship. M was born in Australia in April 2008. At this stage M does not have American citizenship as the requisite paperwork has not been completed.
In late 2006 the husband applied for a position at a Victorian tertiary education institution. He came to Australia to take up the position in early 2007. The wife and the children remained in America while she packed up and sold their home. They moved here in mid-2007. Within several weeks they started to purchase a home in Melbourne.
In September 2007, the husband returned to America for his US Citizenship Naturalisation Ceremony, the culmination of a process commenced by him in August 2006 when the parties were still living together in America. He has dual citizenship. It is convenient to note here that the wife has permanent residency status in Australia.
In October 2007, within three months of the mother and children arriving in Australia, the parents separated, when she took J and N and left the matrimonial home. She was in the early stages of pregnancy with M.
The husband immediately started proceedings to ensure that the mother would not remove the children from Australia, and so that he could share in their care.
He currently spends time with the older two children every second week-end from Friday until Monday, and every Wednesday after school until 8.30pm, as well as on special occasions and in school holidays. That means they see him on six days’ out of fourteen.
By agreement, he currently spends time with M every Wednesday, Friday and Sunday, for between three and six hours, depending on her routine. Accordingly, she never goes without seeing him for more than two days at a time.
To complete the background, I note that the parents agreed on final property orders in January 2009. The home has since been sold. Sadly, the funds received by both of them have largely been spent on this litigation.
MATERIAL RELIED UPON AND ORDERS SOUGHT
The wife relied upon the following material:
·Her Further Amended Response to an Application for Final Orders filed 20 April 2009
·Her affidavit sworn 17 April 2009 filed 20 April 2009
·Affidavit of her mother, the maternal grandmother, sworn 1 April 2009 filed 9 April 2009
·Report of counsellor Ms t dated 16 February 2009
·Report of her GP Dr L dated 12 February 2009
·Report of psychologist Ms B dated 24 March 2009.
Her mother was cross-examined by telephone in the USA. The other witnesses were not required for cross-examination.
She sought orders permitting her to relocate the children to America. She proposed that in the first year J and N would spend four weeks with their father in America and four weeks in Australia. Thereafter, they would see him for four weeks each year in Australia, and two weeks in America, with an additional two weeks in America in each alternate year. She proposed a different regime for M, to build up until she finished the American kindergarten year, when she would follow the regime of her older siblings.
If the children remain in Australia, she proposed J and N spend increased time with their father each alternate week-end, from Thursday to Monday, and one evening for a few hours in the other week, as well as holiday and special occasion time.
For M, she proposed a slow build-up until the end of her Prep year at school (in five to six years’ time), when it would be in line with her siblings.
The husband relied upon the following material:
·His Further Amended Application for Final Orders filed 29 April 2009
·His affidavit sworn 15 April 2009 filed 16 April 2009
·Affidavit of his brother A Caldrdigge sworn 15 April 2009 filed 16 April 2009 (who was not required for cross-examination).
He sought orders that the children remain in Australia and that J and N live with him week about, or in the alternative, from Friday to Tuesday in one week, one night in the other week, and in holidays and on special occasions.
He sought to build up his time with M so that by February 2011 (when she will be 2 years and 10 months’) she will be with him the same times as the other children.
The ICL relied upon the following material:
·Affidavit of Mr P sworn 23 October 2008 filed 27 October 2008 annexing Family Report dated 20 October 2008
·Psychiatric assessment of the wife prepared by Dr E dated 1 April 2009.
Both experts were called for cross-examination.
Ultimately the ICL sought orders that would have the children remain in Australia, and for J and N to spend time with their father from Thursday to Monday in one week, and overnight on one night in the other week, in addition to holidays and special occasions.
The ICL also proposed a phased in approach for M to build up her time with her father.
THE RELEVANT LEGAL PRINCIPLES
Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. Equal shared parental responsibility is agreed in this case.
The court is then required to consider an order for the child to spend equal time with each parent (s 65DAA(1)), or substantial and significant time (s 65DAA (2)).
Before the 2006 amendments, the Full Court set out the applicable principles and the approach for a trial Judge in relocation cases, in A and A (Relocation Approach) (2000) FLC 93-035 (considering the binding authority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852) as follows:
1.Identify the relevant competing proposals;
2.For each relevant s. 68F(2) [the predecessor to s 60CC(2) and (3)] factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
Expanding on the second step, the Full Court in A and A added:
·As one, but only one, of the matters considered under s. 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
The Full Court emphasised that a party did not bear any onus to establish that the relocation would promote the child’s best interests, and could not be required to demonstrate “compelling reasons” for the relocation. Although significant weight was attached to a parent’s right to freedom of movement, it was still subject to the child’s best interests, which remained the paramount though not the sole consideration.
In deciding best interests, the court had to consider each parent’s proposal for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's right to regular contact with a parent no longer living permanently in close physical proximity.
In Bolitho and Cohen (2005) FLC 93-224, the Full Court noted that the High Court in U and U (2002) FLC 93-112 had reaffirmed that the “overarching issue” in relocation was to ensure that any parenting order was in the best interests of the particular child. It noted too that U and U “… ameliorated the somewhat rigid and/or formulaic approach set out in A and A.” The Full Court (at para 72) referred to the High Court having said:
…that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
In December 2006 I published my reasons for judgment in M and S (2007) FLC 93-313. In that case the mother sought to relocate from Melbourne to the United Kingdom with the parties’ eight-year-old daughter, in order to live with her husband who was working there for three years.
In M and S, I referred to the 2006 legislation and noted (at para 81,386):
The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and parent will inevitably be affected by a move away, that in itself should preclude the court from permitting relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
I then observed, (at para 81,385):
Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case observed (at para 72):
‘… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…’
I then applied the pathway outlined by the Full Court in Goode v Goode (2006) FLC 93-286.
That approach was approved in Taylor and Barker (2007) FLC 93-345. The majority (Bryant CJ and Finn J) said (at 81,916-917):
However, consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time’ or “substantial and significant time” arrangement.
The pathway in Goode’s case is effectively a logical stepping through of the legislative provisions briefly set out above.
I shall turn to other authorities, in relation to the court’s power to direct a parent to relocate, and as to the impact of the mother’s mental health, as relevant, later in the course of these Reasons for Judgment.
THE ISSUES
The issues can best be dealt with under the umbrella of the s 60CC considerations.
I turn first to the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The parents say they agree that it is important for the children to have a meaningful relationship with each of them. There is a dispute – as outlined above – as to which regime of time can best promote it. That dispute comes into sharpest focus when it comes to the question of relocation, and the possibility of the children living many thousands of kilometres away from their father.
The expert evidence is clear that, and the wife has had to concede, if she takes the children back to America, M’s developing relationship with her father will probably be irretrievably damaged and there could be a negative impact for J and N. She suggests that he could relocate to be close to them in Michigan. I shall deal with that aspect below.
Although J and N are young, and do not yet have a full array of communication capabilities, they are at least bonded to their father with established relationships. J clearly shares a meaningful relationship with his father. The fact that he expresses a desire to spend more time with him is a testament to that. N is younger. The wife raises issues as to the extent of the father’s relationship with N in an historical sense. His account is very different, and I will return to that below. For current purposes, it is clear that N does have a healthy attachment to her father.
M is just 12 months’ old. She is still being breast-fed. Although the husband had sought that she immediately spend overnight time with him, he ultimately accepted the expert evidence that it should not start for some months’ yet. The wife says it should not start until M is two (if they live in Australia) or three (if the children live in America).
This highlights an issue at the heart of this case. M has never lived with her father and cannot yet have the secure attachment to him that she requires for a long-term meaningful relationship. If she shortly leaves him in Australia, to live on the other side of the world, it is hard to imagine how that attachment can be developed. She will not be able to spend the frequent short periods proposed by the expert as essential to build the bond. If she is unable to spend even one night with her father at present, she will certainly be unable to spend several weeks with him for a long time to come. It is hard to imagine how the relationship will be successfully built to that stage when she is so young and there will be very many months between visits with him.
Mr P emphasised in the Family Report that M needs short but frequent periods of contact with her father, to create a developmental context to establish the foundation for attachment and bonding. It was his view that there should not be overnight time until about October 2009, and then a gradual increase until M’s time with her father later synchronises with her siblings’.
Mr P expressed a clear professional opinion that if M were to relocate now, she would not be able to sustain a relationship with her father. He said:
A relocation creates very significant problems. … the reality is that [M] will not have the cognitive structures or the developmental ability to be able to sustain a relationship with her father. The only way this could occur is if [the father] relocated also. It will not be possible to sustain the relationship, support the attachment or secure [M’s] relationship with her father if she does not have the frequent, consistent contact described.
Later in his report he added:
When thinking about this case, it is necessary to maintain focus on core issues. The relocation will create very significant problems in terms of [M] forming a relationship with her father and sustaining a psychologically meaningful relationship with him. …If relocation was to occur, I have no doubt that it would be better for this to be delayed until at least the time that [M] is three or four years of age, so at least in a cognitive sense she will have a better opportunity to sustain a long-distance relationship with her father in the even that this is what occurs.
Mr P went on to say that it will not be possible for M to sustain a relationship with her father, and to form the necessary psychological bond and attachment to sustain a relationship if she moves to America in the course of this year.
I note that although Mr P referred to the prospect of delaying a move until M is three or four, none of the parties sought, nor did he propose, orders predicting so far into the future.
In relation to the older children, Mr P said:
The same is also true for the other children, but less so because of their ages. [N] is already experiencing some difficulties around separation from her mother, and the behaviour described by [the mother] is indicative of a child finding separation from her primary carer difficult. The indications are that [N] may well be less emotional [sic] robust than her brother, suggesting that a schedule of visitation that entailed relocation might well prove very difficult for her even in the future.
Mr P also noted:
…[N] is likely to find spending time with her father comparatively more difficult because the indications are that she is finding separation from her mother problematic even now. [J] is wanting more time with his father not less, and so a relocation is likely to cause to him an added burden…
In his concluding paragraph, Mr P succinctly raised the exquisitely difficult balancing exercise in this case. He summed up the factors that I will need to weigh up when he said:
When considering all these issues, no doubt the ultimate decision will need to factor heavily [the wife], her level of coping, her level of adaption, and in the most practical sense, her ability to live in Australia, and that furthermore this will need to be weighed against the developmental reality that in the event there is a relocation, that it will not be possible for [M] at least to sustain the kind of relationship with her father that would otherwise be available in the event that the family remained in Australia, the financial risks and realities and all that this will entail should the family return to the United States, or remain in Australia.
Mr P reiterated his views in the witness box, saying that if M lives in a different country from her father, he will effectively become a “stranger” to her. He also emphasised the risks to the relationship with N.
Mr P’s opinion was premised on the husband remaining in Australia. If he also returns to America, to be close to the children, Mr P’s concerns about the attachment issues may not be as pressing, depending on whether the father is able to live close enough to the mother to see the children regularly and often.
The husband says he cannot and will not return to live in America. His capacity to return, and whether he is likely to do so if his children are there, are relevant considerations in this complex dilemma.
He had to concede that from the time he met the wife, until just months before separation, they always lived in America. He had to concede that his extended family is not in Melbourne, and that he has no real nexus with Melbourne, apart from a brief stay before leaving Australia, and living here for nearly 2½ years’ now for his current job.
The husband was adamant that he cannot return to America, primarily because in Australia he has stable employment. He said he will not find suitable employment in America, and that the family finances are so delicately balanced that even several months out of work would not only mean that the family was without his financial support, but it could tip him into bankruptcy, particularly after the financial rigours of the litigation.
Mr Davis for the wife submitted that the father has simply taken a “strategic” approach to this case by saying that whatever the result he will remain in Australia. Mr Davis said that the husband’s refusal to go to America is “at odds” with his love for the children, and that once the shock of a decision for them to return to America wears off, he is likely to “put out feelers” to return.
I do not find that the husband is being deliberately “strategic” in claiming he will not follow his children. Like the wife, he has struggled with the chaos and disruption of relocating to Australia, separating shortly thereafter, and having a baby after separation. It had been a family decision to come here and for him to take up this job. He relishes not only the job, but also the career course it has presented, one which he, with the support of his wife, had been pursuing for some time before they came here. He genuinely worries about work prospects in America, the financial impact of a move, and where he might find work in relation to where the mother proposes to live in a small town in Michigan. He initially said that being near his extended family was another reason he could not return to America. However, when challenged that they were not even in Melbourne, he emphasised that his primary concern was employment.
The husband lived in Tasmania until, as a young professional, he spent one year in Melbourne. But after that, in 1995, aged 31, he left Australia, on an open-ended basis, for a career and life in America. That is where he met and married his wife. That is where he and she developed their professional lives. That is where they had and were raising their first two children. He commenced the process of obtaining American citizenship which, as I have noted, came to fruition in September 2007 after the move to Australia.
At the end of 2006, he was offered the job at the University. The parents made the joint decision to move the family unit to Australia. There is some conjecture as to how permanent a move they were making. I am satisfied that it was their intention to stay in Australia. The wife had studied here for a year many years earlier and enjoyed it. They sold their house in America, and their cars, as well as chattels, shipping the rest to Australia. Within three weeks of the wife arriving in Melbourne, they started purchasing a home. It appears that their intent was to stay for the foreseeable future.
My view as to that intent is fortified when I look at the period before they left America. For some years, their plan was for the husband to transition into acadaemia. He had worked as a consultant, at first as an employee, later on a self-employed basis. But from July 2005, he worked only part-time while he completed studies.
The University job enabled him to undertake the agreed transition to an academic career, an opportunity that he says was not open to him in America without a PhD. The University contract offered an initial three year probation period, described by him as a “standard employment contract” for academic staff employed on a continuing basis. He is in the third year and is undertaking his teaching qualification, the Graduate Certificate of Higher Education. It is his intent to take on his PhD studies, in addition to lecturing, in 2010. There was no evidence to suggest his job is not secure.
The husband conceded that in August 2008 he and the wife agreed in principle to return to the Washington DC area. However, disagreement over various aspects, including a fundamental disagreement as to the day-to-day arrangements in relation to the children, meant that no actual agreement was reached. He emphasised that in the meantime things changed significantly with the onset of the “global financial crisis” which greatly affects his job prospects in America, the more so now that the wife specifically proposes to live in Michigan.
The global financial crisis is something I cannot ignore. Its existence, and the retraction in the economy and jobs, here and possibly more so in America, is something about which I can take judicial notice. It is also something the wife noted, when referring to a downturn in her mother’s financial position. Both her step-father and her brother have recently become unemployed.
In his affidavit, the husband cited various unemployment statistics. Mr Davis for the wife was correct in emphasising that they were general statistics, and did not relate to the husband’s particular experience or expertise. Still, the husband was adamant that he will not be able to work in America.
He was understandably affronted that his wife’s sister somehow had her employer make enquiries of several recruitment agents in America as to his employability. The wife asserted that there was positive interest shown in him, and attached to her affidavit correspondence purportedly to that effect.
It is hard to argue that the wife or her sister did anything wrong in viewing the CV that the husband left on various databases in America, to which they and others had access. However, the role of the sister’s employer, and the nature of enquiries made at the sister’s bidding, strike me as inappropriate. The prospective interest shown by recruiters is of little help to me, without knowing what they were told.
I must observe that the husband’s concerns about gaining work in either his previous field or his preferred one, are reasonable concerns. He is aged 45. He has been studying, and working in acadaemia for several years. I accept his evidence that breaking into acadaemia in America will be difficult without a PhD qualification. And although the wife says he can work near where she will live, to seek work in or near her town, or even in one of the larger centres in Michigan, that is, one specific part of America, and not one in which he has previously worked, is likely to further inhibit his opportunity to find work.
It is impossible in the circumstances of the current job crisis not to empathise with the husband’s concern that he cannot support himself or his family without maintaining the security of his current job. The fact is though that he has not pursued alternatives with any vigour. Apart from asking friends or colleagues about the job market, the husband has made no direct enquiries or applications.
I do note that similarly, although the wife is adamant that her work prospects are better in America than in Australia, she too has not pursued her work prospects in Australia with any vigour. I am not critical of her for not seeking paid work. She has a young baby. It is just that when she insists that her prospects are better in America than in Australia, I note that she has transportable executive management skills, and like the husband, she has had only a broad-brush approach to her enquiries about work in Australia. She said that her particular area of management is more limited in Australia, but she did not detail any efforts to use her broader skills in related or other areas. I note too that in her first months in Australia, she undertook some contract work for her previous employer. That is another future option she did not refer to in any detail.
It seems that the parties’ predicament, and the hurt, the stress, and the uncertainty that each has felt in light of all the profound changes in their lives in a short space of time, has led them both to a narrow and polarised approach to their life circumstances, including their work prospects, particularly since it became obvious by mid-2008 that they could not reach any agreement about where they would live.
All these considerations need to be weighed in the mix when I am considering how best to promote the children’s meaningful relationship with each parent.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The parents agree that this is not a consideration in this case.
I now turn to the additional considerations.
(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;
M is only an infant, but N and J are capable of expressing views even though they are very young.
Mr P noted that all three children engaged comfortably and warmly with their father. They also related comfortably and confidently with their mother. He noted that “qualitatively, there was a sense of ease and familiarity about her engagement with the children that whilst difficult to describe, was obvious to observe”. In evidence, Mr P expressed the opinion that they are primarily attached to their mother.
As already referred to above, J was clear in his preference to have more time with his father. Mr P said that J:
…clearly perceives both parents as equally emotionally available and important to him, he feels both are equally a source of having his dependency needs met, he described them as the people he most depends and relies upon, and consequently, his expectation is that he have more time with both.
Mr P said that J described each parent “in unequivocally positive terms”, that he perceives each separately as providing him with emotional comfort and support, that he values the time with both, and “wanted each to be actively and constructively involved in his life.”
Mr P said J seemed particularly motivated by the notion of fairness as to the apportionment of time with both parents, and he observed that J did not particularly impress as a mature boy for his age. He said his psychological assessment revealed quite marked underlying themes “of anger, conflict and uncertainty pertaining to the future”. He is very aware of his parents’ conflict. I shall return to that.
In his oral evidence, Mr P emphasised that it would be good for J to have a little more extended time with his father.
N has a less robust make-up than J and is of course younger. The wife says she finds N particularly clingy. The husband says she is clingy with him too. I am satisfied that she enjoys her time with her father but requires sensitive handling to ensure arrangements remain comfortable and secure for her.
(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);
By the end of the case there was no real disagreement that the children have an excellent relationship with both of their parents. Whilst their mother is their primary attachment figure, the older two children are also attached to their father and the parents have acted appropriately to ensure that M’s bonds with him continue to develop with very regular access to him.
There were arguments in the affidavit material as to which parent had mostly cared for the children in the past. It is moot to the extent of my findings above, but it is fair to say that the totality of the evidence persuades me that each parent over-stated their position, or under-stated the role of the other parent.
I am satisfied that the husband under-estimated the mother’s role, given the children’s primary attachment to her. And I note, for example, when he came to Australia in February 2007, the children remained in their mother’s sole care for several months in America.
I am satisfied that the mother has similarly under-estimated the father’s active and involved role, given the children’s attachment to him. He had flexible hours in the last few years in America while he studied, and he was at home with the children when she travelled for work, albeit for short trips. I note there were also occasions when she left the children with him for longer periods, including for three to four weeks in June 2007 when they came to Australia with him, and then for 10 days in September 2007 when she returned to America.
As for extended family, the ICL submitted that although extended family is important, it is one of the lesser considerations in this case, as the children will live away from one half of the family or the other. That is true, but it is fair to observe that the children have had a closer relationship with their maternal than their paternal family.
The husband had said it was important for the children to be in Australia to develop their relationship with their paternal family. However, as his mother is in Tasmania and his brother is in Sydney, whereas he has settled in Melbourne, he had to back-down on that. Still, the fact that the children are beginning to know those relatives, even though they have seen them relatively infrequently, is good for them.
In the US, the parties did not live near the wife’s family in Michigan, but there were several visits throughout the year, so that there was steady contact with grandparents, aunts and cousins. The husband agrees that the wife and her mother have a close relationship and it has been obvious that the maternal grandmother has been a source of comfort for her daughter in the time since separation, with three separate stays in Australia. I accept that if the mother returns to America, her family will provide a genuine source of comfort, and the children will enjoy their close relatives.
If the wife is to remain in Australia after this case, the husband has agreed to orders permitting her to take the children to spend time with her family for up to four weeks’ in one trip per year. Pending this hearing he would not agree to her taking the children out of Australia without leaving a bond. I am satisfied that was a reasonable stance, given her ardent desire to remain in America, and given the heat and emotion of the recent separation, pregnancy, and the birth of M. Sadly for the wife it meant no agreement was reached and she did not go.
There was no adequate explanation why the wife could not have put up a bond. Her mother travelled to Australia a number of times, gave financial support, and still offers generous financial support if her daughter returns to Michigan. It seems likely that the wife could have had access to family assistance. Otherwise she may have had access to her superannuation fund in America, but she had not looked into accessing it. And at least in January 2009 she received a lump sum property settlement. She laid the blame on the husband for demanding a bond. That did not seem fair.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Despite some shortcomings and some difficult instances to which I shall turn below, overall both parties have shown a willingness and an ability to facilitate the other parents’ relationship with the children. The testament to that is that the children freely love both their parents. The best example of a mutual willingness has been how they have negotiated the father’s time with M, without court orders, in an effort to build up the relationship in an age-appropriate way.
It has not all been plain-sailing. From the husband’s perspective he would say that the mother has not been as forthcoming as she could be in the level of his involvement, in particular with J and N. For her part, the wife would say that the father has spoken to the children in a way that undermines her and has drawn them into the conflict. I shall deal with those allegations below but note that overall the children have been able to maintain their excellent relationship with both parents.
(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:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Each parent has the capacity to care for the children on a day-to-day basis, with the rider that at M’s age and stage, the husband has not yet been able to provide the full extent of the care that he wants, and of which he has shown himself capable with the other children.
In the period since separation, both parents – again, overall – deserve commendation. They have been parenting the children in the most emotionally charged and challenging circumstances. In addition to the expected stressors of moving countries, moving homes, changing schools, meeting new people, for the husband a new job and career, and for the wife no job and career, in addition they have had to deal with the separation and the subsequent pregnancy and birth of M. Overarching all that, they have experienced financially and personally draining litigation. They have endured many of life’s greatest stressors one on top of another.
Although in her affidavit material the mother claimed that the father had done “everything in his power” to make her life in Australia as difficult as possible, and she emphasised his incapacity to communicate, co-operate, or co-parent, his incapacity to support her, and how he has undermined her and added to her stress, I am satisfied that it is not a reasonable summary. It is not supported by the evidence, and is at odds with her expressed desire for him to move to live near her and the children in America.
I do not believe the wife has been deliberately dishonest in her assessment. She struck me as a fundamentally honest person, but one whose perspective is inevitably coloured by her desire to return to America. She has felt disagreements between herself and the husband particularly keenly, and has perhaps overlooked or under-estimated some of the co-operation and sound communication between them. That is not to say they currently have an easy relationship. Mr P observed the difficulties between them.
In some respects the husband has given the wife good grounds to complain about his co-operation and communication. She produced two pieces of correspondence written by him. Neither reflected well on him.
One was a communication book entry dated 25 February 2009. The husband and J had read one of J’s readers to complete his homework on the week-end of 20 February 2009. As expected of a parent, the husband had written a comment about the book in J’s reading journal. A day or so later, the wife, apparently having read the same book with J, wrote her own comment in the journal. Upon seeing it, the husband completely over-reacted.
He wrote in the communication book that he did not understand why the wife was “over-writing” his parent comments. He said he was “speechless”. And he wrote:
What valid reason is there to act in an acrimonious and ‘jack-boot’ manner and especially with a seven-year-old’s school work. Please cease and desist this. If you want to spit bile at me, do so without involving the children.
He had to admit it was an over-reaction. He said it touched “a raw nerve”. He felt he was being undermined by her. Even so, it was an inappropriate communication.
The other example produced by the wife related to a negotiation between them in March 2009, about J playing soccer. Again the husband had to concede that his behaviour was inappropriate. The wife had raised the prospect of J playing soccer. The husband agreed J had played in the US and enjoyed it. Unfortunately, the negotiations spiralled downwards with the husband’s complaint about the arrangement being in “his time”. He tried to bargain an extended time with the children. His obstinate view resulted in J not playing soccer.
Moreover, unlike the wife, the husband involved J in the adult dispute, admitting in cross-examination that he probably did tell J that he would be able to play soccer if his mummy let him stay over on Wednesday nights. J therefore had the pressure of the dispute on his little shoulders, it was undermining of the mother, and the child missed out on his sport.
The husband’s behaviour – what he described as “raw emotion” – cannot be excused, but can be explained by the rigours of the pending trial and his hyper-sensitivity about not having sufficient time to parent the children as fully as he wanted and as he believed that they needed.
It is important to assess these communications in the context of the many other co-operative emails produced on the husband’s behalf. They showed him, for example, lending his car to the wife so that she could pick up a crib for the baby. They showed reasonable negotiations between them. And as I have already noted, the parents have communicated co-operatively about M.
It is also fair to note that the wife’s communication with the husband has not always been perfect. It is clear that he felt alienated and hurt through exclusion from her pregnancy, M’s birth, and her choice of name for the child. She would no doubt say that was because he was unhappy when she told him she was pregnant. In turn, he would say that was because they had not discussed or decided to have more children and he felt that she had planned the pregnancy without consultation. I cannot get to the bottom of those complex dynamics and issues but simply seek to underline what a difficult and delicate time it has been for him as well as for her.
I note Mr P’s observation of a poor level of communication and co-operation between the parents. I do not regard that in conflict with my finding that frequently the parents have managed to communicate and to co-operate. They are fundamentally good and sensible people. However, it has not been an easy time for either of them. Good-will and good reason, let alone a generosity of spirit one to the other, has largely been eclipsed by their bitterly polarised views on the relocation, and their different opinions as to the structure of time with the children. Mr P observed “significant polarities” between them, that their relationship is currently “strained”, and that they both told him that they were not managing their relationship as separated parents well.
Mr P was correct in his observations of a current lack of cohesion between the parents. Although he said that it may not change significantly, given the extraordinary tensions that are arising from the intensity of the issues in this dispute, I reiterate that they have in fact managed to negotiate all of M’s care since her birth, without court orders. And they have frequently traded polite messages about the children’s needs. That cannot be overlooked in the history, nor as to the future possibilities once the heartache of this case can wear off.
I am satisfied that the wife has not involved the children in the dispute. She has been exemplary for example in not discussing with them her ardent desire to take them to America. In fairness, so has the husband. But I accept her evidence that from time to time he has otherwise allowed the children to be drawn into the conflict, by involving them in negotiations, or blaming her for him not having more time with them. The soccer incident I have referred to suggests that is likely.
It is also apparent that the husband has at times failed to control the frustration and bitterness he feels at the mother “controlling” his time with the children. Although the children are sufficiently close to both parents that it suggests this has not been a major problem, it might account for, or at least contribute to the conflict and anger Mr P noticed in J. Wherever the children live, it must stop. They are predominantly happy and healthy children. It is important for that to continue, and for them not to feel the effects of conflict or uncertainty, as detected in J, once this case is finally over.
The pressing issue about parenting capacity relates to the wife’s mental state. There is no dispute that she has struggled with depression since separation, that she has felt and continues to feel isolated in Australia, and distressed at the prosect of staying.
Mr Davis referred me in particular to paragraphs 207 to 209 of her affidavit where she poignantly summarised how she is feeling:
207.I often lay awake at night worrying about how I will survive here in Australia if I am not permitted to relocate to the United [sic] in the foreseeable future. The thought of having to remain here in Australia indefinitely is extremely distressing for me and I do not know whether I will be able to cope if I am required to stay here. I am concerned that if I am required to remain in Australia, I will no longer have the capacity to be a good mother to the children
208My mental health has now deteriorated to such an extent that in late 2008, my General Practitioner, Dr [L] recommended that is start taking anti-depressant medication. In these circumstances, Dr [L] prescribed an anti-depressant medication known as Lovan. I am presently taking 20mg of Lovan each day.
209In addition to deterioration in my mental health, I have experienced deterioration in my physical health also. Over the last year, I have suffered from severe head aches, dizzy spells, and inflamed eczema. A recent head scan confirmed that there are no physiological abnormalities in my brain. As such, Dr [L] has advised me that it is likely that the headaches and dizzy spells I am experiencing are a consequence of extreme stress and anxiety.
The wife has been seeing two counsellors. Neither has met or heard from the husband.
Ms T spoke of her “trying to survive” and make a life for her children in a new country. She described the wife as “keeping hope alive by pride in her survival thus far, and the possibility of relocation to the United States of America.”
Ms B stated in her report:
It is hard to assess how long [the mother] will cope with the dual stressors of isolation and [the husband’s] unsupportive behaviour and attitude, and the emotional and physical responsibility of caring for three small children, but my observations are that these stressors have had a significant effect on raising her stress levels and she has become less secure in her own abilities in the period I have had a professional relationship with her.
The wife was assessed by experienced psychiatrist, Dr E. Dr E gave evidence of a vulnerable woman, who is “suffering”. He wrote (at para 7):
She is isolated, unhappy and lonely, and in these circumstances her predominant affects are those of grief and longing for a life in the USA and relationships there. She suffers these emotions on a regular and daily basis, and while she continues to attend a Psychologist for counselling, she admits to resisting psychological work involved in beginning life anew. At this point, as she says, she simply cannot face the painful prospect of giving up her wish to relocate.
Dr E reiterated that evidence in the witness-box. He described her feeling as similar to being “in prison”. He agreed that she sees a future in Australia with “dread and pessimism”. Although a return to America would not give her a “Get out of a jail” card as such, as she would still face life separated with three little children, she would be likely to feel “immediate relief” from her depression.
In Dr E’s opinion, however, she would be able to cope if the decision means that she will stay in Australia. He said:
…Whilst she impressed as a most unhappy and distressed woman at the time of the assessment, in the advent of a decision by the Court being made for her to stay in Australia I believe that she would and will cope with that eventuality. She is someone at this stage who simply finds it too painful to use that part of her which will assist her to make a new life here. She admits to waiting for the Court to do that. If the Court was to make such a decision, I believe [the wife] does have the ability to manage her role as mother for the children. She does not present as a danger to them, and at no stage did she admit to homicidal or suicidal thoughts, and does not impress as someone likely to consider those options. She will need to continue counselling and continue to take her anti-depressant medication. Ultimately, if she was to return to the USA, her condition would improve considerably in my opinion.
In evidence Dr E emphasised that the wife has been “in limbo” since arriving in Australia, so she has not been able to “embrace life” in this country. He agreed with her counsel that a court decision to stay in Australia would be the “death knell to hope”, but it remained his professional opinion that she has the resilience to cope. After a period of shock, disappointment and grief, he would expect her “to make a good life” here. He emphasised her psychological capacity to do so. She has demonstrated her resilience.
Dr E said that the best indicator is how well she has parented the children, and the certainty of a decision will be better than the holding pattern she has been in. As he put it, “life will begin”. The wife will start to make a life here and things will get better. He would expect her depression to improve “over time”, that is, more in months than in years. In his professional opinion, it is not a pessimistic prognosis.
Mr P also accepted that the wife feels genuinely isolated, alone, and depressed, and if refused the relocation, she will feel “immediate disappointment”. But he too expected a positive prognosis. He underlined that she is a very capable person. She has shown considerable capacity as a competent, capable parent, has sought help for herself, and has shown her strength.
I am satisfied that the mother’s genuine distress at being in Australia not only arises from a sense of being “marooned” in a country to which she and the children had only just come when the marriage broke up, but also from the practical problems that she genuinely feels would at least be ameliorated in the United States.
I accept that she is genuinely anxious about her financial future. The husband has been paying her rent, and otherwise she lives on child support and family benefits. She currently receives $744 per month in child support payments, although the Child Support Agency has advised her that from 1 August 2009 it will increase to $1300 per month.
The wife was critical of the husband in her affidavit when it came to financial support. She recited various criticisms of him for initially retaining the home for himself, not returning some chattels, not helping her with some pregnancy and baby costs, and missing some of her rental payments. She was critical too that he had sought reviews of some of the Child Support Assessments.
I am satisfied that she is viewing this issue through an understandable prism of having separated, while pregnant, in a new country, with all the surrounding uncertainty. In any event, the immediate stages of separation inevitably bring disruption, uncertainty, and often uncharacteristically shabby behaviour on the part of one or both parties. What her account underplays is that since November 2007, just shortly after separation, the husband has consistently paid her $260 weekly rental. Although he sought reviews of child support assessments, so did she, and he has paid all child support as assessed. He has kept her private health cover up to date, and they agreed on a property settlement pursuant to which he paid and she received a lump-sum.
The wife has emphasised that she will not have the same work possibilities in Australia as in America. I have already observed that I am not satisfied that she has fully explored her work options in this country. However, she annexes a letter from a Michigan organisation indicating that they would like her to consider working with them part-time or on a contractual basis. She swore that she was receiving more than $US90,000 when she worked full-time in America. She does not estimate how much she would earn on a part-time or contractual basis, and was unclear about her precise intent even as to when she will seek work in light of her responsibility for the children’s care. The reality is she would need to work for the air-fares and travel expenses involved in bringing the children to Australia for four weeks each year. In addition she would need to work because of the reduced support she would inevitably receive from the husband, given the expense of his own air-fares and accommodation that he would need to meet.
When it comes to these financial issues, I am not satisfied that the wife, absorbed as she has inevitably been with her desire to return to America, has given them clear-minded consideration, particularly when it comes to her proposal for the children to maintain a meaningful relationship with their father. She has not sufficiently considered the financial implication of the fares and expenses for the family if they live on opposite sides of the world. She has not made substantial enquiries about the air fares. She wanted her contribution to the children’s air fares to Australia capped at $5000 each year. She said she would also pay her own fares and accommodation and other expenses for an annual trip to Australia. She proposed that the husband would otherwise pay any balance of the children’s fares, his own fares for one trip to America each year, as well as a second trip in the alternate year, together with all expenses of accommodation and transport for him and the children. The impact on his assistance to her, let alone the feasibility of being able to carry such recurring expenses, was barely touched upon by her.
It was clear too that the maternal grandmother was simply not across how much travel would be involved, what sort of fares would be involved, and the impact it would have on the husband’s capacity to assist in the support of the family. It had evidently not been something her daughter had emphasised in their discussions.
The husband earns just over $AUS90,000 per year. The air-fares, accommodation, transport and other travel expenses required to effect the wife’s proposal would be very onerous indeed, and would have a significant impact on his capacity to continue support for the wife and the children. Similarly, the impact if the husband were to have to leave his job for work in America, if he were paid less, or if there were months or a substantially longer period without work, was really not addressed by her.
I accept that the wife can expect assistance from her family in America. Her mother said that she and the children can live with them, and that utilities and other financial support will be covered until they “get on their feet” in Michigan.
It follows that the wife’s family would be likely to help her financially even if she lives in Australia. When her mother said that she was not sure that she could afford to continue travelling to Australia as much as she had pending this case, I am not sure she was being forthright. In the next breath she indicated the financial support that could be offered to her daughter if she were nearby in Michigan. I suspect she was wittingly or unwittingly over-emphasising the difficulties in travel to Australia. It is something she has achieved three times since late 2007. Travel constraints, recently set out in her affidavit, arising from the need to care for her elderly mother, have dissipated with the sad demise of her mother in the weeks just before trial. It is hard to accept there are financial constraints to her travel, when she says she can offer financial support to her daughter if she lives in America. Although she referred to the effects of the global financial crisis and that her husband has recently become unemployed, she has also now become a beneficiary of her late mother’s estate.
The wife has emphasised the child-care support that her mother can offer. Although the husband is willing and available to help in that regard in Australia, his work hours offering sufficient flexibility, the wife sees her family’s support as more compelling. That is particularly understandable when it comes to emotional support. It is inarguable that her family would be the natural source of such support. Although they can provide it if they visit Australia, or the wife visits America, that is qualitatively different from being on hand on a day-to-day basis.
(d)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;
If the children live in a different country from their father then there will be a significant change of circumstances for them. Clearly they will not have the easy regular access to him that they currently have. I have already noted the particularly profound effect for M, who is in the delicate stages of forming the requisite bonds of attachment. However, should the mother be permitted to return to her home country, and the supports available to her there, there is also likely to be an immediate improvement in her mental health and mental and physical well-being.
If the husband decides to return to America, to follow the children, then the change in their circumstances, so far as their relationship with him is concerned, could be ameliorated. However that would depend on his finding work, and finding it in an area proximate to the mother. She will be living in a town of 7,500 people. Although there are cities not too far away, neither of them conducted their professional lives in that region in their 13-odd years together. And it is a big country. If he could find work, it could be a long way from where the mother is living. In that case, the children would in any event experience a substantial change to their current circumstances whereby they regularly see their father with only days between visits.
Although M has never lived in the United States, if she is in the care of her primary attachment figure who is well and robust, she will settle. J lived there for nearly six of eight years and N for the first three years of her life. They are familiar with the mother’s family. A change of circumstances from Melbourne to Michigan is not as significant as it would be for children for whom it was a new experience or a place with which their primary carer was unfamiliar. It is the change in the living arrangements between their parents that would be keenly felt.
If the children are to remain in Australia, a change to equal shared time between the parents, as sought by the husband, would be a significant change. It was clear from Mr P’s evidence that it is contraindicated in this case. First, in his opinion N would not cope with that arrangement. Otherwise, the parents’ relationship is such that, as he put it, they would be “splitting” rather than genuinely “sharing” the children. I have noted that they have communicated well at many times, and with the removal of this litigation from the equation, it would be hoped that their communication will improve. However, given what has passed between them I am not satisfied that they can at this stage truly and fully share the daily care of the children on an equal basis.
The ICL’s proposed orders, on the basis of Mr P’s evidence, would give the children increased time with their father, but the change would not be so significant as to unsettle them, and for J, it would mean additional time that he wants.
(e)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;
Obviously, if both parties continue to live in Australia, there are no practical difficulties in relation to the children spending time with each of their parents. They live close to each-other, and there was no suggestion that it will change.
If the children live with their mother in America and the father remains in Australia, the practical difficulty and expense will be considerable. I have outlined the mother’s proposed travel plans. Somehow, neither parent has made adequate enquiries as to the overall likely expense or addressed how it will be met. It is fair to assume that in any event it will be onerous, and could not proceed without a major reduction in the amount of child support paid by the father, and without the mother in substantial paid work or without very substantial assistance from her family.
If the father is living in Michigan near the family, again the practical difficulties and expense of spending time with the children will be immaterial.
If he is elsewhere in the United States, there would be difficulty and expense, but its significance would depend on his location.
(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;
There are aspects of this consideration that are relevant and they are really considered within other considerations above.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is important that these children should be free of litigation.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This factor is not relevant.
CONCLUSION
The parties agree that the parents shall retain equal shared parental responsibility for the children. They agree that they are both important to the children. I need to consider whether the parents shall spend equal time with the children, or time configured in another way. The important issue of where the children shall be located intersects with these considerations.
Both the husband and the wife are good people and loving parents. The present dilemma is heartbreaking for them and a difficult conundrum for the court. There is every reason to sympathise with both of them. Whilst the decision is about the children’s best interests, not about which parent “wins” or “loses” the case, it is not hard to see, when the stakes are so high, that inevitably one of them will be deeply saddened by the decision.
The wife made the move to Australia with high hopes of establishing family life here. Within a few months she separated from her husband. She was in the early stages of pregnancy with their third child. She was alone with no friends, no family, and no career. From her perspective she had no financial or emotional security, and was effectively held in a country and a city in which the family had no roots, but she could not “go home”.
The husband was nearly nine months into a new job and life that was the couple’s shared vision and agreed family venture. He was trying to re-establish his career back in Australia, the sole breadwinner and about to become father to a baby whose birth he would not attend, with whom he would not be living, and about whose name he was not even consulted. He knew his wife would want to take the children home to America and was fearful that she would remove them and minimise his role in their lives.
The wife’s need and desire to go home and to have her family’s support and practical help is genuine. That cannot be disputed. Nor though can the fact that if the children return to America, without their father, M will not be able to form the necessary bond or attachment to him. Given N’s age, and her less robust nature than her brother, her relationship with her father may also be irretrievably damaged. For J, it would mean very significantly less time with his father when he is wanting more.
The wife’s solution is for the husband to return to America. She is correct that it is an option. He lived there for many years. It is where the parties mostly conducted their relationship and their marriage. It is where he conducted much of his career, and he has American citizenship. His connection to the United States is significant. By comparison, apart from the time spent in Australia awaiting this trial, the wife does not have a recent history or long-term connection with Australia.
I accept that the husband is genuine in his belief that it is not viable for him to return to America. In her desire to return, the wife has not fully contemplated the genuine difficulties. He would not only have to give up a good and secure job in Australia, and one that pays sufficiently well for him to help support the family, but he would need to find work, not only in America, but within a short distance of the small town in Michigan where the mother will live, a location in which he has never worked. Again, in her understandable desire to press forward with a return to America, she underestimates the impact of the global financial crisis. I have noted he has not pursued his work options with vigour. Nevertheless I accept that in the present climate it is likely to be more difficult than previously for him to find work in his chosen area, and within such a narrow geographical area in the United States.
The authorities have consistently acknowledged a parent’s right of freedom of movement, both before and since the 2006 reforms, noting the nature of modern society, and its particularly mobile nature. (See for example Kirby J in AMS & AIF;AIF & AMS (1999) FLC 92-852 at page 86,035).
In AMS & AIF, Kirby J emphasised that the “touchstone for the ultimate decision” must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. However, a parent’s freedom of movement needs to be considered not only for freedom’s sake, but also because an unwarranted interference in the life of “a residential parent” may itself cause such unhappiness to that parent that it would be likely to affect the best interests of the child (see AMS & AIF; AIF & AMS at para 145).
When it comes to freedom of movement, the “elephant in the room” of the authorities has been the court’s power to directly restrain a parent from moving, or to directly compel a parent to move. The latter is pertinent in this case, in light of the mother’s suggestion that the father can and should move back to America.
The Full Court recently considered the point in Sampson and Hartnett (No. 10) (2007) FLC 93-350. In that case, after separation, the mother moved the children from Sydney to Geelong. The father remained in Sydney. The trial Judge ordered that “the children’s residence be established in Sydney” with the time they spent with their father to be gradually increased to each alternate week.
The Full Court considered the power to restrain a parent from relocation, or to require a parent to relocate. The majority, Bryant CJ and Warnick J, concluded that there was nothing in the authorities that established that there was no power within the Family Law Act to directly restrain a parent from relocation or to directly require relocation.
They noted (at para 33):
To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power.
Kay J expressed (at para 121) “severe doubts” that there is power to make such an order. In any event, he acknowledged that if there were such a power it would not be exercised other than in “the most exceptional circumstances”. That was not a dissimilar view from the majority, who acknowledged that an order directing a parent to relocate would be “even more rare” than an order that a parent must not relocate.
Sampson and Hartnett arose in unusual circumstances. The trial Judge had simply made an order as to where the children would live. She had not addressed whether the mother, the primary parent, would or would not move with them. That created a situation where, effectively by default, the children may have been living with their non-primary parent. In that context, the majority decision was focussed upon the power to order the primary parent to move. Requiring the other parent to move was not the issue specifically being addressed.
Although in this case the mother has consistently said a move is open to the father, I have not been asked to make an order compelling him to move. Accordingly I do not need to decide whether this is a case of the rarity or exceptional nature referred to in Sampson and Hartnett. I proceed on the basis, and accept the father’s evidence, that he proposes to remain in Australia.
Before leaving the topic I note that the Full Court handed down a decision on 15 May 2009 in Rosa & Rosa [2009] FamCAFC81, a case in which the father said he would not move to follow his daughter. The case related to the parenting arrangements for a 7-year-old child who had moved with her parents from Sydney to North West Queensland for her father’s employment just months before separation. Coker FM’s decision for shared care in North West Queensland was upheld by the Full Court. The effect was that the mother could not move the child to Sydney as she was seeking.
One of the mother’s grounds of appeal was that the Federal Magistrate had failed to consider the arrangement proposed by the mother for both the parents and child to return to Sydney. Without specific reference to Sampson & Hartnett, Finn, May and Benjamin JJ dismissed that ground, saying that as the father had sworn he would not leave North West Queensland, there would have been no point for the Federal Magistrate to consider that option. They said (at para 56):
…Decisions concerning the parenting arrangements for children are hard enough (particularly under the current legislation) without requiring the court to consider scenarios which one or both parties have expressly rejected. The reasonableness of such a rejection may of course be relevant to the ultimate parenting decision to be made. But his Honour was clearly satisfied of the reasonableness of the father’s position in this case…
I note that Mr Rosa gave evidence that he wanted to continue his employment in North West Queensland. The Federal Magistrate found it was not simply for his “own aggrandisement”, but also to ensure that he was able to provide for his family. That is similar to the present case. I note that the Full Court was not critical of that as a basis for the Federal Magistrate being satisfied as to the reasonableness of the father’s position.
When it comes to the mother’s desire to relocate, her mental health is an essential consideration. Her ability to cope is so obviously important to the well-being of these dependent young children.
In B & B: Family Law Reform Act 1995 (1997) FLC 92-755, the Full Court observed (at para 9.67):
…ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of the children who are part of the household…
The observation was expanded upon by the Full Court in R & R 1998 FLC 92-820 (at para 86) as follows:
…there are frequently what may be termed as compelling cases where the evidence relating to such unhappiness and the capacity of the unchallenged residence parent to function becomes so overwhelming that other aspects have to give way to the needs of that parent. It is not hard to envisage cases in which such circumstances would exist. Strong evidence of an inability to function due to homesickness, a real or perceived need to escape from what is thought to be a hostile environment are but some examples of such circumstances…
When it comes to an assessment of a parent’s mental health, its impact on their ability to parent, and in turn its impact on the exquisitely difficult issue of relocation, the authorities largely turn on their own facts. However, I note two recent Full Court decisions.
In Wiley & Wiley [2008] FamCAFC 153 the Full Court upheld a Federal Magistrate’s decision to allow a mother to relocate three children, aged 13, 9 and 6, from southern New South Wales to a town near Melbourne. Brewster FM had been satisfied that the mother was genuinely very unhappy and depressed. Although she was coping, she was on medication and he found that it was “hardly satisfactory” that she should be required to remain in a place because medication could be used to ameliorate her condition and enable her to cope. Although there were no overt signs of any impact on the children from the mother’s condition, the Federal Magistrate had drawn an inference that her parenting ability was likely to be compromised by her unhappiness, and that it was likely to have some impact on the children.
In Lamereaux & Noirnot [2008] FLC 93-364, a differently comprised Full Court considered a trial Judge’s decision in favour of a mother relocating a seven-year-old child from Australia to France. The father’s appeal against that decision was allowed. The Full Court concluded that the trial Judge had erred in ignoring the unequivocal evidence of the psychologist “that the mother could cope” if the court rejected her application to relocate the child but reconsidered the issue when the child was aged 10, 11 or 12. Although that situation is not on all fours with the situation in this case, the Full Court obviously regarded a consideration of the mother’s capacity to cope as integral, as it is in the present case.
In Rosa, although the mother’s case had emphasised her emotional and physical isolation, and her reduced capacity for employment in North West Queensland, the Federal Magistrate placed more weight on a concern that if the child relocated to Sydney, her relationship with her father would not be encouraged by the mother and her family. Although in this case I do not have the concern that the wife will discourage a relationship, there is instead the strong concern that M’s relationship with her father cannot be properly established.
I am conscious that from the mother’s perspective she finds herself in Australia when she and her husband had mostly lived in America. I am conscious that a person should be entitled to arrange their life in a manner to do more than just “cope”. And I am conscious too that children need a healthy and happy primary carer or they will inevitably feel ill-effects.
I am persuaded by Dr E’s evidence that although the wife will be genuinely sad and at times frustrated by having to remain in Australia, she will cope and, as he put it, be capable of “making a good life” for herself and the family. He, and Mr P, spoke of an optimistic prognosis for her. He noted that she has shown her resilience. She is an excellent mother and an intelligent, resourceful woman. Given the early throes of separation, and a new baby, as well as the overlay of this litigation, she has understandably made no efforts to immerse herself in her community. With the reality of this being her home, I am satisfied, underpinned by Dr E’s evidence, that she will be able to engage in and enjoy the opportunities.
The wife’s American relatives have visited frequently, and it seems they can continue to do so. In addition, after this case, she will be permitted to take the children to America for four weeks’ each year, something she has longed to do, and something which may at least in part quell her yearning. It will certainly enable her and the children to spend further blocks of time with her family.
I must weigh all that up with the other components of the children’s best interests. To that end, first I am not satisfied that the children’s best interests will be met by spending equal time with each parent. In particular, I note Mr P’s evidence as to N’s capacity to cope, and as to the nature of the parental relationship and that it is contrary to a successful “sharing” of the children in the way the husband seeks. In my view it is also contrary to each child’s best interests as the older children would spend such significant times away from M, and potentially develop separate lives from or at least weaken their bond with her. She could not join them in a week-about regime for some years to come.
I am satisfied however that the children need to spend substantial and significant time with their father in order for M to have the relationship with him she needs and deserves, to extend N’s relationship with him, and to give J a chance for more time with him, as he would like.
M’s age and developmental stage is an unusual and pressing consideration in this case. She is only an infant, just 12 months’ old. Importantly, Mr P’s Family Report, and his oral evidence, lead to the unequivocal conclusion that if M moves away from her father at this young age, he will effectively be a stranger to her. The requisite attachment has not yet formed for her to maintain a bond with him. His relationship with the other children, the more so N, will also be at risk.
I am satisfied that the mother has tried to suggest a suitable travel arrangement for the children to spend time with their father should they relocate to America. However, not only can it never approach anything like the current arrangement, where the children spend a great deal of frequent time with him, the likely expense of the proposed regime puts even that time at risk.
It is likely that any relocation will affect the nature of the relationship between the children and their other parent. As I observed in M and S, noted above, that in itself should not preclude a relocation. However, in this case the impact on the relationship, most particularly for M, is unusually profound.
The expert evidence as to the effect on the children, if moved away and unable to spend substantial and significant time with their father, coupled with the expert evidence of a positive prognosis for the mother’s capacity to cope and build a life here, tips the delicate balance of the children’s best interests being better served in Australia.
I am satisfied that the ICL’s proposal that J and N spend time with their father from after school Thursday until before school Monday in one week, and one overnight in the other week, is a sound proposal. It accords with the children’s best interests in a way described by Mr P. It means that the children need never go for more than a matter of days without seeing their father, and he can be engaged in both their school and home lives. That is important. It gives J a little more time with his father, that he will welcome, and N should be able to cope well in that clear and certain routine.
The sensible suggestion was made on behalf of the mother that time in the alternate week should be on a Thursday so that the children will have the routine of spending every Thursday evening with their father. Although in her submission the Thursday should not be overnight, I am satisfied that it is unnecessarily unsettling for the children to return home to their mother at 8.00pm or 8.30pm. This shared overnight time with their father, and his further involvement in their normal school lives and routine, will be to their benefit.
The children will also see their father on various special occasions. Each parent has tried to incorporate various Australian and/or American special occasions into the orders. I will do the best that I can in framing the orders in that regard, but welcome any submissions as to the precise form of the orders before I pronounce them.
It is reasonable for the parents to share school holidays. The wife’s proposal for each parent to have one block of 14 clear days’ with the older children (ultimately joined by M) in the summer holidays is a sound idea. I shall include that.
The husband has agreed that each year the mother may take the children to America for up to four weeks, and that in each second year it can occur over Christmas, so she can share that special time with her family. In that instance, she should arrange it so the children can still spend a block of 14 days’ of the Christmas holidays with their father, and the week-end immediately before and after the holidays, whether those week-ends would usually be his time or not. In the event that the mother arranges the trip in one of the term school holidays, again the father should spend the week-end with the children immediately before their departure and upon their return, whether or not they are otherwise his week-ends under these orders.
I am not ordering precise “make-up time” as the father would want. This is about children, not weights and measures. The important thing for the children is to see their father shortly before their departure and shortly after their return.
I shall make orders to ensure that the children have the requisite travel documents. I shall also ensure that, like her siblings, M can obtain American citizenship so she is not disadvantaged by her parents’ separation.
No party sought a Watch List order. That is probably because of the uncertainty it would cause when the mother legitimately takes the children to see her family. Accordingly there will be no such order.
So far as M is concerned, it is difficult to predict how a small child will react, the more so the further into the future one tries to predict. Nevertheless, I must do the best that I can to phase in increased times with her father. It is important to have the parties leave these proceedings with a regime in place to avoid an unnecessary return to court in the future.
The husband’s proposal for M to spend the same extended periods of time with him as the other children, from February 2011, when she is still less than three, is not in her best interests. It is simply unlikely to be within her capacity. Otherwise too, the graduated increases he suggested appeared rushed from her perspective.
The wife proposed that M’s time with her father should not be the same as her siblings until at the end of her Prep year. I am satisfied that it is appropriate that she have the same regime as her siblings when she starts school. Like them, her time then will have limitations in its flexibility. Her time will have been steadily built, and she will be with her older siblings. Otherwise, the mother’s proposed graduation appeared too slow and protracted.
The ICL proposed a stepped arrangement, not predicting beyond the age of 32 months. I propose trying to go further for the sake of completeness.
I propose a gradual increase in M’s blocks of time with her father, and then a gradual decrease in the frequency of time. I will also deal with a gradual increase in M’s time with her father during school holidays. Not all the parties addressed me on that or various other fine details of the arrangements. That is not surprising, given the need to know how the bigger issues would be resolved. I will do my best to combine the details from the various proposals that strike me as reasonable. As I will allow the parties to make submissions as to these details, I can alter the proposed orders, and give reasons about any controversial aspects. If the details of these proposed orders are agreed, there is no need to traverse the minutiae in my reasoning.
THE ORDERS
The orders I propose, subject to submissions as to form, are as follows:
1.All previous parenting orders, including the Airport Watch List order made on 11 October 2007 in relation to the children of the marriage namely J born on … June 2001, N born … April 2004 and M born … April 2008 shall be and are hereby discharged.
2.The parents shall retain equal shared parental responsibility for the children.
3.The children shall live with the mother.
4.The father shall spend time with J and N as follows:
(a) In week one from Thursday after school until before school on Monday, commencing 11 June 2009;
(b) In week two from after school Thursday until before school on Friday, commencing 18 June 2009;
(c) For one half of all school term holidays by agreement and in default of agreement the first half, being from after school on the last day of school until 5.00pm on the middle Saturday of the school holidays;
(d) For one half of the summer school holidays provided that each parent shall have the children with them for one block of 14 days, noting that the school holidays are defined to commence from the conclusion of school until 6.00pm the day before the new school year.
5.The father shall spend school term time with M as follows:
(e) Until she is 20 months’ old:
(i)In week one on Monday, Thursday and Friday for a period of five hours, and on Sunday for a period of eight hours, as agreed, commencing 11 June 2009;
(ii)In week two on Thursday and Friday for a period of five hours, as agreed, commencing 18 June 2009;
(f) When she turns 20 months’ old:
(i)In week one on Monday, Thursday and Friday for a period of five hours, as agreed, and on Sunday from 2:00 pm until 9.00 am Monday;
(ii)In week two on Thursday and Friday for a period of five hours, as agreed.
(g) When she turns 30 months:
(i)In week one on Thursday and Friday for a period of five hours, as agreed, and on Sunday from 10:00 am until 9.00 am Monday;
(ii)In week two on Thursday and Friday for a period of five hours, as agreed.
(h) When she turns three years of age:
(i)In week one on Thursday for a period of five hours, as agreed, and on Saturday from 2.00pm until 9.00am Monday; and
(ii)In week two on Thursday and Friday for a period of five hours, as agreed.
(i) When she turns four years of age:
(i)In week one on Thursday for a period of five hours, as agreed, and on Saturday from 10.00am until 9.00am Monday; and
(ii)In week two on Thursday and Friday for a period of five hours, as agreed.
(j) When she turns five years of age:
(i)In week one on Thursday for a period of five hours, as agreed, and on Friday from 3.30pm until 9.00am Monday; and
(ii)In week two overnight on a Thursday with the other children.
(k) When she starts primary school:
(i)On the same basis as J and N.
6.The father shall spend school holiday time with M on the same basis as J and N once M starts primary school, but until then the regime set out in paragraph 5 of these Orders shall continue in the school holidays save that in the summer school holidays the mother shall have M with her for the same 14 day block that she has the other children.
7.The father shall spend time with all the children on the following special occasions:
(l) In 2010 and each alternate year thereafter on Halloween (31 October) in the event it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;
(m) In 2010 and each alternate year thereafter on 4 July in the event it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;
(n) In 2010 and each alternate year thereafter on Thanksgiving;
(o) Each year on Australian Father's Day (the first Sunday in September) from 10.00am until 7.00pm;
(p) Each year on the father’s birthday (… March) as follows:
(iii)If the father’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm; and
(iv)If the father’s birthday falls on a week-end, then from 10.00am until 7.00pm;
(q) Each year on each of the children’s birthdays as follows:
(iii)If the relevant child’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm;
(iv)If the relevant child’s birthday falls on a week-end, then from 3.00pm until 7.00pm; and
(r) Subject to paragraph 11 of these Orders, each year during the Christmas period as agreed between the parties and in the absence of agreement as follows:
(iii)From 3.00pm on 24 December until 3.00pm on Christmas Day in any odd numbered year; and
(iv)From 3.00pm on Christmas Day to 3.00pm on 26 December in any even numbered year.
8.The father’s time shall be suspended as follows:
(s) In 2009 and each alternate year thereafter on Halloween (31 October) in the event that it falls on a weekday from after school (3.30pm) until 7.00pm, and if it falls on a week-end, from 10.00am until 7.00pm;
(t) In 2009 and each alternate year thereafter on 4 July in the event that it falls on a weekday from after school (3.30pm) until 7.00pm and if it falls on a week-end, from 10.00am until 7.00pm;
(u) In 2009 and each alternate year thereafter on Thanksgiving from after school (3.30pm) until before school on the Friday;
(v) Each year on United States and Australian Mother's Days (both on the second Sunday in May) from 10.00am until 7.00pm; and
(w) Each year on each of the children’s birthdays as follows:
(iii)If the relevant child’s birthday falls on a weekday, then from the conclusion of school (or 3.30pm) until 7.00pm; and
(iv)If the relevant child’s birthday falls on a week-end, then from 10.00am until 3.00pm.
9.The father shall collect the children from and deliver the children to the mother’s home for all changeovers that do not occur at the school.
10.The children shall be permitted to telephone the other parent at any time and each parent shall encourage and facilitate reasonable telephone calls.
11.That sub-paragraph 4(a) and (b) shall be suspended during term and summer holiday periods and shall recommence as if the school holidays had not intervened.
12.The mother shall be permitted to take the children for a holiday to America for one period not exceeding four weeks in each year, incorporating the Christmas period in each second year if she chooses, provided she gives the father:
(x) Three months’ prior written notice;
(y) An itinerary of the trip and a copy of return air tickets for herself and the children and details of where they will stay, at least one month before departure; and
(z) A contact number for the children whilst they are in the United States of America.
13.In the event the mother takes the children to America, she shall provide make-up time for the father on the week-end immediately before and the week-end immediately after any such holiday, and if it is in the Australian summer school holidays, for a block of 14 days’ of the holiday time, provided that M shall not spend more of that time with her father in any one block than commensurate with the regime in these Orders according to her age at the time.
14.The parties shall do all acts and things and sign all such documents as may be required to obtain the following for M:
(aa) US Consulate Report of Birth of Abroad;
(bb) US Social Security Number;
(cc) American Passport; and
(dd) Australian Passport.
15.The parties shall do all acts and things and sign all such documents as may be required to obtain or re-new and keep renewed (as the case requires):
(ee) J’s American and Australian passport;
(ff) N’s American and Australian passports; and
(gg) M’s American and Australian passports.
16.The parents shall share equally any of the costs associated with complying with paragraphs 14 and 15 of these Orders.
17.The solicitors for the mother shall hold the passport and shall release them to the mother and/or father only after receiving the written consent of both parties.
18.The parents shall use a communication book or e-mail for all discussion, notification and advice of medical, education and personal notes concerning the children, and shall exchange that book regularly.
19.The parents shall keep each other notified at all times of their residential address and contact phone numbers.
20.The parents shall notify the other parent as soon as practicable in the event that any of the children suffer any illness or injury whilst in their care.
21.The mother shall do all acts and things and sign all such documents as may be required to authorise the children’s respective educational institutions to provide to the father, at his expense:
(c) Copies of all school reports and any other reports relating to academic or other progress and behavioural issues in relation to the children; and
(d) all notices received from the children’s respective educational institutions as well as details of all functions, parent/teacher interviews, and other activities to which parents are ordinarily invited, and that the father shall be at liberty to attend at such functions, interviews and activities.
22.The parents (together and by themselves) shall be and are hereby restrained from denigrating the other parent and/or members of the other parent’s family, in the presence and/or hearing of the children.
23.The Independent Children’s Lawyer shall be discharged.
24.Pursuant to s.65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
25.That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation.
26.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau
Associate:
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