Briedis & Saar
[2025] FedCFamC1F 91
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Briedis & Saar [2025] FedCFamC1F 91
File number(s): SYC 962 of 2021 Judgment of: BRASCH J Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – PARENTING – INTERNATIONAL RELOCATION - Where mother seeks international relocation orders for the child - Where father opposes the relocation - Where mother’s and father’s move to Australia was agreed by them to be temporary for the mother to have the support of her parents when pregnant - Where mother is heavily reliant on her parents’ support - Where the maternal grandparents have committed to relocation out of Australia regardless of the outcome of these proceedings - Where the father has committed various acts of family violence on the mother during the relationship and post-separation, including threatening to withhold a document during parenting discussions thereby making the mother restricted woman – Where it is not in the child’s best interests for the agreed residential parent, the mother, to be exposed to the father’s conduct without the physical support of her parents – Relocation of child permitted
FAMILY LAW - PRACTICE AND PROCEDURE – RE-OPENING - Where mother sought to adduce further evidence about supports available to the child if relocation was permitted - Where application opposed by father and Independent Children’s Lawyer - Where the evidence sought to be adduced is of limited probative value and was available for the trial - Application to re-open dismissed
Legislation: Evidence Act 1995 (Cth) ss 140 and 144
Family Law Act 1975 (Cth) Part VII, ss 4(1), 4AB, 4AB(2)(g), 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(c), 60CC(2)(d), 60CC(2)(f), 60CC(2A), 61DAA(1)(a), 61DAA(1)(b), 65D(1), 65DAB
Cases cited: Adamson v Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
EB v CT (No. 2) [2008] QSC 306
English and English (1986) FLC 91-729
Ferro & Kople [2016] FamCA 409
Godfrey & Sanders [2007] FamCA 102
Gwiazda & Ber (unreported, Family Court of Australia, Emery J, 23 February 1983)
Hall and Hall (1979) FLC 90-713
Halstron & Halstron [2022] FedCFamC1A 65
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Klein [2010] FamCAFC 150
Lainhart & Ellinson (2023) 68 Fam LR 87; [2023] FedCFamC1A 200
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Pickford & Pickford [2024] FedCFamC1A 249
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Reid v Brett [2005] VSC 18
Rochford & Fitzhugh [2019] FamCAFC 218
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Smith v New South Wales Bar Association (1992) 176 CLR 256 [1992] HCA 36
U v U (2002) 211 CLR 238; [2002] HCA 36
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 263 Date of hearing: 23-26 July 2024 & 22, 23 October 2024 Place: Sydney Counsel for the Applicant: Mr Mathews Solicitor for the Applicant: Broun Abrahams Burreket Counsel for the Respondent: Ms Fisken Solicitor for the Respondent: Acuity Lawyers Counsel for the Independent Children's Lawyer: Ms Messner Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 962 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRIEDIS
Applicant
AND: MR SAAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged, save for Order 9 of the 23 October 2024 Consent Order, which will then be discharged upon the mother’s relocation from the Commonwealth of Australia with the child.
DECISION MAKING WHEREVER THE CHILD RESIDES
2.The parties will retain parental responsibility for the child, X born in 2016 (“the child”) and in relation to all decisions concerning major long-term issues, as defined in s 4(1) of the Family Law Act 1975 (Cth), the parents:
(a)May make sole decisions in relation to the child’s emergency medical treatment; but,
(b)Must otherwise make joint decisions.
3.Each parent is not required to consult the other parent about decisions that are made in relation to the child during the time the child is with a parent on issues that are not major long-term issues, or, in relation to medical treatment in cases of medical emergency.
AIRPORT WATCH LIST
4.In the event the child’s name was re-placed on the Family Law Airport Watchlist (“Airport Watchlist”) after the child’s January-February 2025 international travel, then the parties do all acts and things to remove the child from the Airport Watchlist and the mother’s lawyers have leave to serve a copy of these orders upon the Australian Federal Police AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the name of the child from the Airport Watchlist upon provision of a copy of these orders.
TIME AND COMMUNICATION ARRANGEMENTS UNTIL RELOCATION
5.The orders under this heading only apply to the parties up to the mother’s relocation with the child.
6.Unless otherwise agreed by the parties in writing, the child will live with the mother and spend term time with the father as set out at Order 9 of the 23 October 2024 Consent Order.
7.Unless otherwise agreed by the parties in writing, the child will spend school holiday and Jewish Holiday time with the parties as follows:
(a)During the term 1 2025 school holidays (and including Pesach festival) the child spend the entire holiday period with the father;
(b)During the term 2 2025 school holidays, with the mother the first half and the father the second half;
(c)With the father on the Festival of Shavuot from 10.00 am on 1 June 2025 until 5.00 pm on 3 June 2025;
(d)The child will otherwise live with the mother when not spending time with the father; and
(e)For the purposes of this order, the school holiday periods will be calculated by reference to the days children are not required to attend school at the school the child attends.
8.For changeovers other than on those occasions when not conducted at school already, changeover will occur as follows:
(a)At the commencement of the child's time with the father the child will be collected by the father from the mother's residence; and
(b)At the conclusion of the child's time with the father the mother will collect the child from the father's residence.
9.Further to order 8, each parent is permitted to have an agent effect changeover on their behalf subject to that person being known to the child, and the relevant parent providing prior written notice (including by text message) to the other parent.
10.Each parent be at liberty to communicate with the child via video call/telephone and/or other electronic means, during school holidays (including Chol Hamoed of Jewish Holidays) at all reasonable times and failing agreement, at the following times:
(a)Within the two hours prior to the commencement of Shabbos and/or Jewish Holidays; and
(b)Every Sunday and Wednesday night, if not otherwise communicating with the child per order 10(a), between 6:30 pm and 8:30 pm, when the child is not in their care.
11.Each parent will facilitate any request by the child to telephone the parent with whom they are not currently spending time.
RELOCATION
12.The orders under this heading only apply to the parties upon the mother’s relocation with the child.
13.The mother be permitted to relocate the residence of the child to the United States of America (“USA”) with such relocation to take place from August 2025 and that the child live with the mother.
14.From the date of relocation of the child to the USA, the child spend time with the father in Sydney, Australia:
(a)For a period of two weeks for the Jewish Festival of Passover in April 2026 and each alternate year until the child reaches age 18; and
(b)For a period of two weeks for the Jewish Festival of Succot in October 2027 and each alternate year until the child reaches age 18.
15.The child spend time with the father either in Sydney, Australia or the USA at the election of the father for a period of four weeks in each USA Summer Vacation commencing in or about August from 2026 until the child reaches age 18 and if in Australia the father to pay the child’s economy airfare.
16.For the child’s travel to Sydney, Australia:
(a)The mother or a member of her family will accompany the child to Sydney and on the return trip to the USA; and
(b)The mother will pay the return economy airfares for the child to travel to Australia on one occasion per annum.
17.The child spend time with the father in the USA:
(a)In the USA mid-winter school holiday in December/January from 2026 and each even year until the child turns 18 for a period of two weeks;
(b)At such other times by written agreement with the mother.
18.The mother will pay the return economy airfares and accommodation expenses for the father (including his family) to travel to the USA for the purpose of visiting X on one occasion each year up to an amount of AUD$10,000 per annum.
19.Within seven days of a written request from the mother, the father will do all acts and things and sign all documents as are necessary to renew or replace the child's Australian Passport.
20.Within fourteen days of a written request from the mother, the father will do all acts and things and sign all documents as are necessary to enable the child to have a US Passport when this becomes applicable.
21.Within fourteen days of a written request from the mother, the father will do all acts and things and sign all documents as are necessary to permit the child apply for and obtain Visa and/or Green Card papers for valid immigration status in the USA.
22.The mother will ensure that the child has at least two electronic face-to-face calls (via Zoom, Teams and the like) with the father each week.
23.To facilitate order 22, the mother must ensure the child has a charged device, afforded privacy during such calls, and, return any missed call within 12 hours.
24.The mother will facilitate any request by the child to call (or communicate by other means) with the father at any time.
25.The mother will cause the father to be listed as the child's parent on any enrolment forms and/or records maintained by the school attended by the child in the USA.
26.The mother will authorise any school, extra-curricular provider, and treating medical practitioner attended upon by the child in the USA to:
(a)With respect to the school, communicate with the father as to all matters pertaining to the child including, but not limited to, the child’s academic progress, his achievements, and providing any login details for online applications utilised by the school and extra-curricular providers;
(b)Provide the father with any school reports, photograph order forms, newsletters and other information ordinarily provided to parents; and
(c)With respect to medical practitioners, provide the father with any medical reports, clinical notes and assessments relating to the child.
27.Each parent is at liberty to attend any school functions ordinarily attended by parents including but not limited to events such as religious celebrations, parent-teacher interviews, assemblies and concerts.
28.Neither party is permitted to further relocate the residence of the child outside of the USA (which does not include trips to Australia to spend time with the father) without the authenticated written consent of the other parent, court order or legal requirements in the relevant jurisdiction.
OTHER ORDERS IRRESPECTIVE OF WHERE THE CHILD LIVES
29.The orders under this heading apply irrespective of where the child lives.
30.Each party will inform the other party by telephone or email of any medical emergency or significant illness (i.e. anything requiring prescription medication or referred medical treatment) or injury suffered by the child including providing details to enable both parties to be consulted with respect to and to be advised about such illness or injury and any treatment recommended.
31.Each party will keep the other party informed at all times of their full residential address and residential telephone number, mobile telephone number, email address and any daytime telephone contact number and advise the other party within 48 hours of any change to these details.
32.All communication (outside emergency) between the mother and the father will take place by email.
33.The parties have liberty to apply with respect to the interpretation or implementation of these orders.
BY CONSENT, THE COURT ORDERS THAT:
Independent Children Lawyer’s costs
34.Within 90 days of the date of this order, the parties each pay one half of $19,769.30 being the Independent Children Lawyer’s costs.
AND IT IS NOTED:
A.The parties agreed the mother will travel with the child to the USA from January 2025 and then leaving the USA for Australia by February 2025.
B.The father had sought a surety from the mother in relation to that travel, but ultimately, the parties agreed that they have liberty to re-list the matter in the event the mother failed to return with the child, and I thus not hand down these Reasons until mid‑February 2025.
C.In relation to Notation A, the court made international travel orders by consent on 23 October 2024.
D.Subsequently, the parties proposed further consent orders that the mother be permitted to stay in the USA with the child for an extra week, leaving the USA a week later in February 2025.
E.The court made that variation by order of 7 February 2025.
F.That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Briedis & Saar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
X, born in 2016 (“the child”), is the much-loved child of his parents, the applicant mother, Ms Briedis (“the mother”), and the respondent father, Mr Saar (“the father”).
The critical dispute in the matter is whether X should stay in Australia (as the father seeks) or relocate with his mother to the United States of America (“USA”) when her parents (“the maternal grandparents”) move to State B in mid-2025.
Save for the relocation question and a question about decision making for medical emergencies, both parties propose they jointly make major long-term decisions for X.
The respondent father proposes a 9-5 arrangement in Sydney, Australia (“Sydney”) (five with him) continue to the end of Term 2 2025 and then the child live in an 8-6 arrangement in Sydney (six with him). He seeks orders for sharing of special occasions, school holidays and various Jewish holidays. It is the father’s case that the child’s relationship with him, his new wife and their children will be lost or adversely constrained if relocation of the child is allowed. He has alternate orders if the child is permitted to relocate, including a relocation date of August 2025, but that is not a proposal, just a fall back if I am against him on the relocation question (U v U (2002) 211 CLR 238) (“U v U”).
If permitted to relocate with the child, the applicant mother proposes the child spend block physical time with the father three times a year in even years and twice in odd years. She has other proposals for FaceTime and a continuation of the current 9-5 arrangement until relocation. She offers the father up to AUD$10,000 per annum to assist with travel. It is the mother’s case, and largely accepted by the father, that the mother is reliant on her parents for emotional, physical and financial support. It is also the mother’s case that the father has exerted coercion and/or control over her, for which she needs her parents’ support.
If X is not permitted to relocate, the mother will stay with him in Australia, and she has orders covering this, but this concession is not to be elevated to a proposal (U v U).
The Independent Children’s Lawyer (“ICL”) said the matter was “finely balanced” and proposed no relocation for the child “but not strenuously so”. The ICL proposed orders for both stay and go options. The ICL did not support the father’s 8-6 arrangement but preferred a 9-5 arrangement. The ICL also proposed that if there was to be a relocation, then it occur at the start of January 2026 to allow X to spend more time with the father and his young children, X’s siblings.
The parents are Jewish and understandably place a premium on X sharing time with the parents on Jewish Holidays. These important Holidays can fall outside of school holidays and obviously fall on different times each year of the Gregorian calendar. They also must allow for the Sabbath. I have been greatly assisted by the parties’ Updated Minutes of Orders which propose ways Jewish Holidays may be observed both within Australia and if X is permitted to relocate.
Background
The mother was born in 1991 in Sydney, Australia. In 2013 she moved to City C for a year or so. That is where she met the father.
The father was born in 1989 in the USA. He lived in the USA until his family moved to Country D.
The parties met in 2014 in City C. They married in 2014 in Country D and lived in Country D after their marriage until their temporary relocation to Australia in 2016 upon the mother’s pregnancy with X.
It is common ground that the move to Australia in 2016 was only meant to be temporary so the mother could have the support of her parents during her pregnancy and for a short period thereafter. The father said six to nine (6-9) months was the first agreed duration of being in Australia and living with the maternal grandparents. This was subsequently extended out to two years. Such was the temporary nature of their move that the father did not want to buy a car when here.
When the parties relocated to Sydney in 2016, they lived in a granny flat at the maternal grandparents’ home in Suburb E. X was born in 2016.
The maternal grandparents subsequently undertook renovations at their home and all four adults (and X) moved to a rental property. The maternal grandparents left the rental property in 2018 and returned to their home.
The parties separated on 8 October 2018. The father continued to reside in the rental property and the mother and child returned to the maternal grandparents’ home in Suburb E. The mother has remained living there, as does X when with her.
Following separation, X initially spent time with the father for a few hours each Saturday and Sunday. The father was not happy with this.
In late 2018 when discussing parenting arrangements, the father threatened, in writing, to withhold a Gett (a Jewish bill of divorce) from the mother and threatened that she would be an Agunah; a chained woman. After this, the mother did not engage with the father. The father complained in his material that he had to deal with the maternal grandfather.
The parties eventually reached an interim agreement in late 2019 with the assistance of a religious authority, whereby X would spend 3 days per week with the father, being daytime hours every Saturday and Sunday, and overnights on Wednesdays. Time increased when X turned 6. When X turned 7, time with the father would increase by agreement. The father required the mother to lodge $50,000 with the religious authority to ensure her compliance with the arrangement.
The father gave a Gett to the mother on the same date the parenting terms were struck.
The parties were divorced by order of this court in 2020.
The mother ceased unsupervised and overnight time between X and the father in early 2021 and filed these proceedings. She stopped overnight time after X was returned to the mother by a woman unknown to the parties (someone called Ms F), after the father fainted at home whilst looking after X. X was four at the time. He apparently left the father’s house, and the Ms F person found him on a street and brought him to the mother. Thereafter, the mother proposed X’s time with the father be supervised at a contact centre for two months, which could then progress to unsupervised time if no incidents were reported by the contact centre.
The mother filed an Initiating Application on 15 February 2021 first seeking to relocate with X to the United Kingdom where she has some family.
Orders were made on 19 March 2021 for X to spend supervised time with the father for three hours each Wednesday, daytime on alternate Saturdays and Sundays, and, specific days during Passover in 2021.
On 14 May 2021, the supervision requirements were removed and orders made for time between X and the father overnight each Wednesday, and every second weekend for eight hours on Saturdays and Sundays. The parties could not agree on the interpretation of the orders regarding Passover – the father maintained the child could not spend time with the mother on this important festival because the orders did not specifically mention her.
In late 2021, the father married Ms G and they now have two children, H born in 2023 and a child who was born in between the two tranches of the trial.
On 28 April 2022, the father’s application for week about time arrangements and overseas travel with the child to Country D was dismissed. However, the earlier May 2021 orders were amended to clarify X could spend Jewish holidays with the mother if it did not fall in the father’s time, and that they equally share school holidays.
The mother amended her moving document on 24 November 2022 seeking a relocation with the child to the USA. The mother maintained she did this because the father and his wife are both citizens of the USA meaning they could work and live there if they chose and therefore be closer to X if allowed to relocate.
The father is adamant that he will not relocate to the USA if X is permitted to move, notwithstanding his USA citizenship (and his wife’s) and likely prospect that both he (a finance professional) and his wife (an allied health professional who previously worked in City J) will be able to secure employment there. Ms G has a relative who lives in the vicinity of the town where the mother proposes to reside.
In early August 2023, the child’s time with the father was increased to overnight each Wednesday, and Friday to Sunday fortnightly.
In early 2024, the child attended upon Dr K for a comprehensive evaluation. It is common ground that X was behaving very poorly at school and the school suggested this path.
The evaluation resulted in a diagnosis of ADHD and ASD depending on the function. Both parents have accepted these diagnoses and engaged an allied health professional to assist. They have also engaged with the NDIS. They will add the services of an additional allied health professional in due course.
THE TRIAL
The trial was initially set down for four days commencing 30 July 2024, but it soon became apparent that it would not conclude in that time. It also became clear through cross-examination that the parties had different views about the mother’s Visa options to reside in the USA. Given the trial went part heard, the parties agreed to appoint a Single Expert (“the Migration Expert”) to speak to the mother’s eligibility for Visas and permanent residence should the child be permitted to relocate. I made orders by consent to that effect on 26 July 2024.
The trial resumed on 22 October 2024 and concluded in the two additional allotted days. The Migration Expert and Child Court Expert (“CCE”) were both cross-examined and then the parties moved to submissions.
CREDIT
This is a parenting matter where the court ought exercise caution in making credit findings; see for example, Adamson v Adamson (2014) 51 Fam LR 626 at [168]:
These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
I do not consider general findings about credit (or a lack thereof) to be necessary or helpful in this case.
That said, the father did not help his case by the unresponsive and argumentative way he answered questions. I will not however make a credit finding about that but rather see his poor responses as a window into how he communicates and reacts to challenge. The mother says she struggles with his style of communication. Having watched him give evidence, I can see why.
The mother was largely responsive to questions. She presented as meek, timid, vulnerable and naïve. Rather than make credit findings, the parties’ respective styles of communications highlight the findings I later make that the father has used words to commit acts of family violence on the mother, and, was and is in the ascendency of a power imbalance between the two.
THE APPLICATION TO RE-OPEN
On 16 October 2024, the mother applied to re-open her case. That Application in a Proceeding was supported by an affidavit of the same date, with paragraphs 1-11 relevant to the application to re-open. The application was opposed by the father and ICL.
When the matter returned to court on 22 October 2024, the application was heard. The parties made submissions, and I dismissed the application to re-open. The parties proposed I give my reasons for dismissing the application as part of these wider Reasons for Judgment; these are those reasons.
Re-opening principles
The principles relevant to a re-opening are well known, and include for example, what was said in Smith v New South Wales Bar Association (1992) 176 CLR 256 (“Smith v New South Wales Bar Association”), per Brennan, Deane, Dawson, Toohey and Gaudron JJ at 265–266:
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. ...
Of that decision, Applegarth J observed in EB v CT (No. 2) [2008] QSC 306 (“EB v CT”) at [2] that the guiding principle “is whether or not the interests of justice are better served by allowing or rejecting the application” (cited with approval in Halstron & Halstron [2022] FedCFamC1A 65 at [44]). Applegarth J added at [5]:
Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
Ultimately, the parties agreed those principles could be broken down as set out by Habersberger J in Reid v Brett [2005] VSC 18 (“Reid v Brett”) at [41]:
The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
The proposed evidence
Before looking at the evidence the mother wishes to adduce, it is useful to set some context for the application and its disposition.
In the July 2024 part of the hearing, it became apparent that the parties had different views of the mother’s ability to migrate with the child to the USA if the relocation was granted. They therefore agreed to appoint an appropriately qualified specialist in US Immigration Law, with particular reference to State B, to prepare an expert report as to:
a. The visas (if any) available to the mother and child to permanently reside in the United States of America.
b. The eligibility requirements attached to any such visa;
c. The restrictions attached to any such visa; and
d. Any government, social security and or healthcare benefits available to both the mother and/or child attached to the visa.
Item (d) is relevant to the application to re-open and arises in circumstances where X has various medical needs, is eligible for NDIS supports in Australia and has specialist health providers. However, in the first part of the trial, it was also not clear whether any of the Visa types proposed by the mother had any health care access rights attached to them.
The parties duly engaged the Migration Expert but in late September 2024, he advised the parties he was unable to assist with (d). Thus, the mother said she sought to re-open her case to furnish the court with such information. But she went further than that and wanted to give the court better particulars of the medical and allied health services which could be available for X in Town M, State B.
I now turn to the proposed evidence.
Annexure B to the mother’s affidavit is a fact sheet she said she downloaded from the L Health Insurance website. It states in part:
Qualified [State B] residents of any age can be eligible for [L Health Insurance]. This includes children, parents, caretaker relatives, and adults without dependent children. Eligibility is based on the income and household size that was reported on applicants latest federal tax return. However, [L Health Insurance] can use other sources, such as pay stubs, to verify information. Income eligibility for children is high than income eligibility for adults. (See chart).
…
Are There Any Restrictions?
Children under 19 can qualify for [L Health Insurance], regardless of their immigration status.
(bold in original)
I have no idea who is a “qualified [State B] resident” and how children “can qualify”. I also have no idea what the mother’s income might be (she is proposing working Visas) and therefore whether she even has any eligibility for acceptance by this service. I do not know if the house size eligibility would include the mother’s relative (with whom she proposes to temporarily live on arrival, albeit in a separate dwelling on the premises), his wife and their children.
Annexure C is a summary of the mother’s research of services and programs available in State B for a child with X’s needs. It will be recalled X’s diagnosis was in March 2024, some months before the first tranche of the trial. The mother’s research seems to have been undertaken “since […] July 2024” (Affidavit of Ms Briedis filed 16 October 2024, paragraph 5). Save for the summary of the web sheet (see Annexure B), I do not know what the source documents for the summaries are, nor the currency of the information.
Annexure D compromises emails between the mother and a person said to be a special education lawyer in Town M, State B. He is not appointed as a Single Expert. The lawyer asked for the child’s evaluations, where the child attended school and what services he receives. The mother provided Dr K’s evaluation of March 2024.
Annexure E is a “To whom it may concern” letter from the special education lawyer saying temporary residents with documented needs for special services are able to access services “provided they otherwise qualify”.
Annexure E also includes another “To whom it may concern” document from the Town M Board of Education setting out special education programs offered in the Town M Public School District. The mother added in her affidavit that two of the approved state schools cater to the Jewish population. However, the mother’s evidence in cross-examination (and the case which the father was meeting) was that she proposed sending the child to a private school.
Annexure F is the mother’s father asking the special education lawyer to clarify the “provided they otherwise qualify” comment in the Annexure E letter from the lawyer. The lawyer responded that the child would qualify (without setting out any basis for so concluding) and “I could provide testimony to the court”. If the relevant rules of evidence applied, this would be safely called rank hearsay and would offend what was said about the basis for an expert opinion in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”).
Disposition of re-opening application
I now turn to the four factors set out in Reid v Brett which the parties agreed were a useful step through of relevant principles for considering whether to exercise discretion to allow or dismiss the application to re-open.
(a) the further evidence is so material that the interests of justice require its admission
The mother submitted that I would receive the material under this consideration. Indeed, it was said the evidence was “so important” and “critical”. But that begs the question that if it was so important and critical, why was it not part of the mother’s trial material for the July 2024 hearing?
The evidence is underwhelming in terms of probative value; for example, hearsay to which I attach little weight, and summaries without sources and dates, and a web sheet which raises more questions than answers. Accordingly, I accept the father’s submission that it would have no material impact and the ICL’s submission that it “doesn’t move the needle”.
It was also submitted by the mother that when the Migration Expert advised he could not deal with the health access issue in order 1(d) as set out earlier, the mother tried to “fill the void”. I do not accept that. Whilst the mother produced some scant evidence about children under 19 receiving supports (if they “can qualify”) whatever their immigration status, I accept the father’s submission that what she also proposes to put on goes beyond that which is available for a child, like X, in Town M, State B. That dovetails into (c) below.
(b) the further evidence, if accepted, would most probably affect the result of the case
I do not accept the mother’s submission that the evidence is “critical” and “so important”. It is of limited probative value.
I also accept the ICL’s submissions that: the proposed evidence would not affect the result; and, pursuant to s 144 of the Evidence Act 1995 (Cth), I could accept as a general proposition that a State such as State B, in a first world country, would have medical/health services available for a child like X.
(c) the further evidence could not by reasonable diligence have been discovered earlier
Quite properly, the mother accepted the evidence could have been discovered earlier and for the July trial. Her counsel quite appropriately accepted that there was no reason or explanation why this material was not presented in compliance with trial directions for filing material for the July trial listing. As said, X’s diagnosis was in March 2024 giving ample opportunity for her to marshal evidence within the timelines for filing trial material.
However, the mother submitted that this factor is outweighed by the critical nature of the evidence and in doing justice between the parties. I do not accept the evidence is critical nor that it would “change the dial”.
Rather, I accept the father’s submission that the mother has already had the opportunity to, and did address, the provision of medical services in State B in her affidavit of evidence in chief (see for example Affidavit of Ms Briedis filed 28 May 2024, paragraph 145). I accept the father’s submission that “she has already had one go and now wants another”.
I accept both the father’s and ICL’s submissions that there is nothing in the proposed evidence that could not have been available to her prior to the July trial. It must be that the mother made choices about what she would tell the court in her trial material.
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence
The mother submitted that the prejudice to the father (and ICL) from re-opening could be dealt with in the two days of the October 2024 hearing and she would not stand in the way of the father wanting to cross-examine her on any of the material.
I do not agree it is that simple. The evidence proposed by the mother raises more questions than answers, for example:
(a)Who and what is a “qualified [State B] resident”;
(b)How does the means test apply and will it be applicable to the mother;
(c)How does the household size test apply and will it be applicable to the mother;
(d)What are the specialist lawyer’s credentials;
(e)How did the special education lawyer arrive at the conclusion that the child qualified for support (Makita); and
(f)What are the public schools to which reference is made.
Various of these questions would require research prior to cross-examination and possibly putting on other evidence. Accordingly, the father’s inability to meet those questions posed by the mother’s recent application produces prejudice to him. Equally, I accept the ICL was not in any position, as submitted, to verify what was asserted and that too causes prejudice.
I also accept the father’s submission that cross-examination proceeded on the basis that the mother would send X to a private school. The mother’s new material raises the availability of two public schools. The father then rightly asks, what case is he to meet if the proposed evidence is allowed in.
True, the father did say he trusted the mother to pick a school for the child if allowed to relocate, but that was in the context of private schooling. I have no idea what his attitude would be to the two unnamed, public schools.
The ICL also referred to the prospects of this litigation not ending if the re-opening was allowed within the concepts set out in EB v CT above. I agree.
The discretion – balancing the factors
This is an exercise of discretion. As ought be clear, I do not consider the material has the kind of probative effect such that it is “so material” or would probably affect the outcome.
It is also material that could have been plainly put on by the mother for the July 2024 trial. There is no suggestion that any of the services have only become available after the mother (and father) closed their cases in July 2024. The mother made choices about what evidence to put on, which then gives rise to the words extracted above from Smith v New South Wales Bar Association that a decision to not call available evidence would “ordinarily .. tell decisively against the application”.
I am also satisfied that allowing the re-opening will likely cause both the ICL and father prejudice of the variety described above.
Therefore, balancing those factors yields to the clear conclusion that the mother will not be permitted to re-open her case. I dismissed the mother’s application to re-open.
THE TRIAL MATERIAL RELIED UPON:
The applicant mother relied upon the following documents along with a Case Outline, written submissions and an updated Minute of Order handed up on 23 October 2024:
·Amended Initiating Application filed 28 May 2024;
·Affidavit of Ms Briedis (the mother) filed 28 May 2024;
·Affidavit of Mr O (the maternal grandfather) filed 28 May 2024;
·Affidavit of Ms P (the maternal grandmother) filed 28 May 2024;
·Affidavit of Ms Q (the mother’s psychologist) filed 28 May 2024;
·Affidavit of Dr R (the mother’s general practitioner) filed 29 May 2024;
·Affidavit in reply of Ms Briedis filed 1 July 2024;
·Affidavit in reply of Mr O filed 1 July 2024; and
·Affidavit of reply of Ms P filed 1 July 2024;
All the mother’s witnesses were required for cross-examination. The maternal grandparents explained they have lived in Australia for many years, have children living across State B, City C, Country D and the mother in Sydney, and many grandchildren including X. He is the only grandchild in Australia. They said that after a long time in Sydney it was time they shared their parenting and grandparenting across their other adult children and grandchildren. Both spoke of health difficulties, which make long-haul flights from Australia a challenge. Each said flights from State B to City C and Country D were considerably shorter than flights from Sydney to those locations.
An undercurrent in the father’s questions of both maternal grandparents was that they would stay in Australia if the child cannot relocate with the mother to the USA. In the face of that line of questioning, both were resolute that they were going. The maternal grandmother said it was time to share themselves with other family members. The maternal grandfather said he will be 72 (in 2025) and it was time for him to retire; “we’ve made the decision to go”. I accept their respective confirmations that they will move to the USA whatever the outcome of these proceedings.
Dr R is the mother’s treating general practitioner. He spoke to the mother’s current health, including her DASS21 scores and current mental health issues including generalised anxiety disorder and traits of another mental health disorder.
Ms Q is the mother’s treating psychologist. In her affidavit she deposed to the mother’s challenges in dealing with the father. In cross-examination, she confirmed her opinions were only as good as the mother’s reporting to her. It became clear the mother had exaggerated various events to reflect poorly on the father; for example, what happened at an event in 2023 and the father’s dealing with a health service provider. Ms Q did however confirm that the mother found the father challenging to deal with and it remained her view that the mother was stressed and sad. Ms Q maintained:
You were asked questions before that if the accuracy of what’s being reported to you about [Mr Saar’s] behaviour would impact upon your opinion, because it might not be an accurate reflection of what’s actually happening at home. You remember those questions?‑‑‑Yes
It doesn’t, though, impact upon your concern about her stress, anxiety, sadness if she were required to be in Australia without the support of her family?‑‑‑It doesn’t make any difference, no.
Transcript 24 July 2024, p.196 lines 34-42
The respondent father relied upon the following documents:
·Amended Response to Final Orders filed 17 June 2024;
·Affidavit of Mr Saar (the father) filed 18 June 2024;
·Affidavit Ms G (the father’s wife) filed 13 June 2024;
·Affidavit of Ms S (the father’s manager) filed 6 June 2024;
·Affidavit of Dr T (the father’s general practitioner) filed 10 June 2024; and
·Affidavit of Mr U (Rabbi) filed 10 June 2024.
Only the father and his wife, Ms G, were required for cross examination. Ms G was child focused in understanding X’s health needs and was also empathetic in her understanding that the mother would want, or even need, the support of the maternal grandparents going forward. She said she understood the mother would be anxious if the maternal grandparents were not geographically close by and accepted it would have a “really hard impact on the child” if separated from his maternal grandparents. She was however complicit with the father in deceiving the mother about a changeover for Passover 2024, about which I will say more later.
Ms S filed an affidavit on 11 June 2024, speaking to the husband’s employment, specifically regarding the flexibility the role provides, balancing home and work life, and parental leave entitlements for employees.
Dr T filed an affidavit on 11 June 2024, which spoke of the medical evaluation she undertook of the father after his fainting episode in early 2021. She concluded that the examination was “uneventful” and no abnormalities were detected. She then opined that the father was fit to care for X unsupervised. She detailed a phone call she received after this from the maternal grandfather and that she ended up terminating the phone call. She further deposed to observing the father with X at Synagogue on Saturdays.
Mr U spoke of the father’s commitment to Synagogue, his observations of the father’s and X’s relationship, and the Jewish tradition of a father being engaged in their son’s education, which “includes but is not limited to academic and religious education at home, at synagogue and at school” (Affidavit of Mr U filed 11 June 2024, paragraph 10).
The Independent Children’s Lawyer read the following document and the Court Child Expert was also the subject of cross-examination:
·Family Report prepared by CCE Ms V filed 21 December 2022.
The parties also had two Single Expert Reports:
(a)Affidavit of Mr W filed 10 July 2024 who spoke to mothers’ and fathers’ obligations with respect to observing the critical covenants in Judaism. He also deposed to the role of a father in a child’s Jewish learnings, and how that can be managed via appropriate schooling where the father is not present. At the end of the day, both parents accepted the other would tend to the child’s Jewry. Mr W was not required for cross‑examination; and
(b)Affidavit of Mr Y (part of Exhibit 6) who is the Migration Expert. Mr Y was required for cross-examination. His mastery of the topic was clear, and I was greatly assisted by his expert evidence, which was to the effect that the mother has several viable options open to her with respect to Visa classes (including a dedicated E-3 working Visa for Australians), which could lead to Permanent Residency.
Between them, the parties tendered nine Exhibits. Where I refer to page numbers in Exhibits, the page numbers come from the electronic page number, not any pagination on the bottom of the documents.
Parenting Principles
The parenting principles in Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply with equal force to applications for the international relocation of a child, just as they do in other parenting applications. Indeed, in Zahawi & Rayne [2016] FamCAFC 90 at [48] the Full Court stated that:
“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
Clearly, X’s best interests are the paramount consideration when weighing up the parties’ competing proposals; s 60CA of the Act. That said, whilst I must determine what is in X’s best interests, the parties’ legitimate desires and interests are not ignored, rather, where those interests conflict with X’s best interests, the child’s best interests prevail (AMS v AIF (1999) 199 CLR 160 at [207]‑[208] (“AMS v AIF”)). Similarly, whilst a parent enjoys the right of freedom of movement to live wherever they choose, that right must defer to the paramount consideration, being what is in the child’s best interests (U v U at [89]).
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB, which is irrelevant in this matter).
Section 60B of the Act sets out the objects of Part VII of the Act, and that is:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CC of the Act addresses best interests and provides:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
X is not an Aboriginal or Torres Strait Islander child.
I now turn to the s 60CC(2) considerations.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
No one ran a case that the other parent posed an unacceptable risk to the child as that concept is understood in cases such as Isles & Nelissen (2022) 367 FLR 338. They did however speak to “a risk” to the child if allowed to relocate or not relocate, but in terms of risks to the child’s relationships with each parent. I consider this later.
Section s 60CC(2)(a) is informed by s 60CC(2A) as follows:
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
In turn, family violence is defined in s 4AB of the Act as follows:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
…
The section goes on to list non-exhaustive examples of behaviour that may constitute family violence and then speaks to children being exposed to family violence.
Returning to the text of s 4AB, in Pickford & Pickford [2024] FedCFamC1A 249 (“Pickford”), the plurality comprising McCleland DCJ (at [3]) concurring with Aldridge and Carew JJ at [43] and [50]) said:
The section is both remedial and protective and as such should not be read down by artificial limitations (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
…
The definition of family violence is necessarily broad and any interpretation that may be perceived to, or actually, create unnecessary hurdles to an alleged victim proving an allegation of family violence should be avoided.
However, Austin and Williams JJ concluded at [109]:
The definition is exclusive, not inclusive. Notwithstanding the obvious breadth of the definition, it is disjunctive and admits of “violent, threatening or other behaviour” amounting to “family violence” in only one of two ways, being behaviour of that sort which:
“coerces” or “controls” a family member – which is an objective concept focussing upon the characteristic nature of the perpetrator’s behaviour towards the victim; or
causes the family member to be “fearful” – which is a subjective concept instead focussing upon the victim’s reaction to the perpetrator’s behaviour.
Those differences do not matter in this case, as the findings I later make comfortably fit within both the expansive approach and the exclusive approach.
To coerce or control
Separately, this trial was conducted in line with the common parlance of "coercive control"; that is, an adjective to a noun. However, the Act says to coerce or control.
These concepts were usefully elaborated upon by Aldridge and Carew JJ in Pickford at [46]-[47]:
In fulfilling the onus of proving an allegation of family violence that involves behaviour that coerces or controls, it is not necessary to prove the alleged perpetrator intended the behaviour to be so. That does not mean that intention is irrelevant, but it is not dispositive. A person who engages in such behaviour may be completely oblivious to the impact of their behaviour or they may believe that they are acting in such a way to protect the other family member. Notwithstanding that subjective belief, the behaviour may nevertheless coerce or control the other family member and fall within the definition of family violence.
The focus of the fact finding process is on the behaviour and the impact of the behaviour. It is the behaviour that coerces or controls. It requires action and reaction. A single act is unlikely to be coercive or controlling but it may be. Behaviour that coerces or controls may be innocuous, subtle, capable of different interpretations, complex, undermining, etc. Such behaviour may create impossible expectations for the other family member. It may be transactional and involve punishments for perceived failures. The impact of the behaviour can be insidious. A confident and happy family member may lose their confidence, their self-esteem, question their sanity, shun their family and friends, become depressed, irritable, inefficient, and unhappy. There may be times when they strike out either verbally or physically.
Or, as Austin and Williams JJ said at [111]:
The first form of family violence, which entails coercion or control, essentially captures one family member’s domination of the other family member. That the victim may subjectively feel coerced or controlled is not enough. The coercion or control must be an objective actuality. The alleged perpetrator’s inferred intention to exert influence over and to dominate the alleged victim will very often be decisive of the issue, but it is not an essential ingredient of a finding of family violence taking the form of coercion or control.
It is of course possible for an act of family violence to both coerce and control. Where I use the phrase coerce and control below, that is because I am satisfied both occurred, but I have not overlooked the legislature's language of coerce or control.
An unsafe but historical incident involving the child
In early 2021, the mother stopped X’s time with the father when the father fainted when X was in his care. X, at four, left the father’s home and was on a street when a woman called ‘Ms F’ (unknown to the parties) noticed him and accompanied him to the mother’s house. As the father appropriately accepted in cross-examination, that could have had “catastrophic” consequences. However, that concession is at odds with what he told the CCE that his fainting was “used against” him and was very critical of the mother’s actions to stop unsupervised time (Exhibit 1, paragraph 46).
This was the catalyst to the mother initiating these proceedings. On 19 March 2021 orders were made that the child’s time with the father be supervised. That occurred. The requirement for supervision was lifted on 14 May 2021. X’s unsupervised time with his father resumed as one overnight weekly, and every second week time for eight hours on Saturdays and Sundays. Further increases in time followed thereafter.
In cross-examination, the mother confirmed she was no longer concerned about the child’s safety in the father’s care. That is consistent with her proposal that X spend five nights a fortnight with the father until relocation and then block time in Australia and the USA.
There is no suggestion that that incident now causes any risk to the child’s safety or would in any way constitute a barrier to the promotion of the child’s safety, and I find accordingly. Indeed, the parties’ parenting proposals are the anthesis of needing to protect the child from harm posed by the other parent.
The father’s case about being coerced or controlled
In terms of s 60CC(2)(a) and (2A) of the Act, the father said he had been controlled by the mother and the maternal grandparents. For example, when staying at the maternal grandparents’ home, the household had to move whilst the maternal grandparents undertook renovations on their own home. The father complained he was not consulted about the rental accommodation chosen by the maternal grandparents. He does not say anything about contributing to the rent. I do not consider the maternal grandparents providing alternate accommodation for their adult daughter, adult son-in-law and grandchild (whether or not the father was consulted) to fall anywhere near the meaning of family violence. The mother and father always had the option to stand on their own feet and accommodate themselves, but they did not.
The father also said he felt the maternal grandparents were trying to exert control “on our lives” when he and the mother asked the maternal grandfather to give them $180 per week for a month and the maternal grandfather proposed some conditions including that one of the rooms in the house be rented out as an office for the mother and asked to see their bank statements.
The texts annexed to the mother’s affidavit (Exhibit 7, p.6-20) are illuminating but not in a way that supports the father’s contention about being controlled. Instead, the father spoke of living in an expensive area, and the mother saying her father is happy to help financially, but “just wants to understand and help us make a budget”. This is a reference to asking for their bank statements, to which the mother made an apt point in the texts that they would have to show bank statements to a bank anyway if they wanted a bank loan.
The father said he did not want the maternal grandfather’s help, but also texted the mother:
Tell him to give the money directly to you
So you won't live tight
The mother said she thought that was dysfunctional. The father continued, including but not limited to:
He will help directly. You won't live tight. He will be happy you will be happy. And all will be fine.
…
I dont want anything to do with your father
If he cares for you then he will give you money for your waxing and things that you need
(Emphasis added)
After some more texts, the mother texted:
well the savings is half mine amd i want to take some out then. i refuse to live like this
i shouldnt have to beg to be able to spend money ona wax or nappies
(Emphasis added)
The father replied:
Tell him to go you money in cash and that money will be only for your use for wax and nappies
*to give
The entire exchange at Exhibit 7 shows the father telling the mother, his wife, to get financial support from the maternal grandfather, even though they had matrimonial money in the bank for which the mother felt she had to beg to use for even the most basic of things, including nappies. This exchange does not portray the father in a positive light; indeed, the exchange above is an unreasonable denial of financial autonomy the mother would otherwise have had if “allowed” to access joint funds for basic things like nappies (s 4AB(2)(g)). The father has failed to persuade me that the maternal grandfather wanting to help them budget or proposing the mother get an office amounts to coercion or control.
The father also complained that when he and the mother decided to return to live in Country D in 2018, the maternal grandfather emailed the mother suggesting, in short, they think about it. It was a polite and courteous email. I do not consider that to be an example of control or coercion, but one family member suggesting thought be given to a significant decision.
The father also complained that the maternal grandparents were trying to control X’s time with him, exclude him as the father and undermine him as a parent, as he was “hardly seeing [X]. Two hours a week”. X was two years at separation. That the father did not get what he wanted does not make for controlling or coercive behaviour – “parental conflict and family violence are not one and the same thing” (Pickford at [94] per Austin and Williams JJ). I am not persuaded the mother and maternal grandparents did anything other than be loving and supportive parents and grandparents.
As to the general concept of the maternal grandparents apparently controlling them, the father agreed in cross-examination that the mother defers major life decisions to her parents and had shared information with them that the father would prefer she did not (for example, the outcome of counselling and other intimate information). I do not consider that to be control or coercion of the father but (a) an example of the mother’s close relationship with her parents, and (b) an illustration of the mother’s vulnerabilities and dependence upon them.
When it came to submissions, I was not asked to make any findings to the effect that the maternal grandparents controlled the father and/or the mother. Even if I had been asked, the father’s complaints do not support such conclusions, and he has failed to discharge the burden of proving it on the balance of probabilities (Pickford at [79] citing Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 at [36]; s 140 of the Evidence Act 1995 (Cth)).
The mother’s case about being coerced or controlled
The mother’s case began as it ended - the father sought to coerce and/or control the mother by threats during the relationship, which continued in the shadow of separation and in the months before trial in 2024.
To the CCE, the father denied he was ever abusive in the relationship and described himself as “passionate and encouraging” and “always willing to find a solution to a problem” (Exhibit 1, paragraph 45). For the examples that follow (along with his requirement the mother get financial support for things like nappies from her father instead of joint funds set out earlier), I do not agree.
In cross-examination, the father admitted he wrote the following in an email to the maternal grandfather in late 2018 while discussing parenting orders:
Please don't tell me what is the best interest for [X].
I'm [X's] father - I love him, I care for him and I know very well what is best for him.
…
I don't care of your threat to go to lawyers. Even if you take everything from me with your lawyers, you will never be able to force a Get out of me. A Get will be given only upon my free will (only if I will want to give it and only when Im [sic] ready to give it). SO if you don’t want your daughter to be an aguna you will be smart enough to respect me as an independent person and as [X's] father. You will also avoid causing me any additional suffering and pain.
In regards to your earlier email , please send me an email with your thoughts in regards to parenting and financial matters going forward . The reasoning for this request is, that once there is a proposal on the table we can go ahead and discuss it further from that point.
l am extending my offer to discuss things amicably, though it is important that all parties remember that we all must respect one another, even when we have different thoughts and opinions.
Recently, things got quite out if hand. I hope that we can bring the discussions back to a respectable manner.
(Emphasis added)
(Exhibit 7, p.30-31.)
A Gett is a Jewish bill of divorce and was aptly summarised in Ferro & Kople [2016] FamCA 409 (“Ferro”) at [442] as follows:
Under Jewish law, a divorce can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of a bill of divorcement (a gett) under the supervision of a [religious court]. The parties are divorced and free to marry again after the gett has been delivered and accepted.
An Agunah is a chained woman – chained to her husband who will not free her by giving the Gett. Again, this was summarised in Ferro at [443] as:
… Without a gett, a woman will be unable to remarry at Jewish law and for a man it will be extremely difficult to do so. Such as woman is termed as an “agunah”, literally one who is “chained” to a man from whom she is unable to procure a gett. Any child or children born to an “agunah” will bear the stigma and burdens of bastardy. It can have consequences that flow through the descendants who forever may be unable to rectify their situation.
It is plain from the father’s email that the context is parenting discussions. It is also clear the father thought nothing of threatening to withhold the Gett in the same breath as offering to “discuss things amicably” and in a “respectful manner”.
People in Australia are free to "follow their own religious practices and beliefs subject only to the operation of civil and criminal laws" (Ferro at [452]). Accordingly, what I find about the husband's threatened Gett refusal is said within the prism of the law I must apply - the Family Law Act and any relevant laws of our Commonwealth. What I say is no comment at all about a faith from "time immemorial" (Gwiazda & Ber (unreported, Family Court of Australia, Emery J, 23 February 1983) cited in Ferro at [449]) to which these parties adhere.
The mother said, without challenge, that she agreed to the interim terms eventually arranged through the religious court in late 2019, but:
I was not happy with the terms of the interim parenting agreement especially since previous terms had been removed such as travel, relocation and documents such as [X's] passport. I felt under pressure to sign and felt that delaying may mean I would never receive a Gett. If a Jewish woman does not receive a Gett according to Jewish Law she is unable to marry known as an Agunah.
(Emphasis added)
(Mother’s affidavit filed 28 May 2024, paragraph 27.3)
With respect to his email, the father admitted in cross-examination that:
·Withholding a Gett made the mother a chained women;
·An Agunah was a derogatory term;
·It was shameful to be a woman without a Gett;
·As an Agunah she could not marry;
·Any child she had would be illegitimate;
·She could not engage with any male; and
·It would cause the mother and the maternal grandparents great hurt.
To threaten to make the mother a chained woman was a truly horrible thing for the father to write. In cross-examination, the father tried to give justifying context including:
·I wrote it but had no intention of acting on it;
·I had no money ...was penniless and could not put food on the table (but, I observe, he was in paid employment and renting out his garage);
·I wrote it at a time I was threatened to give up my son;
·I was struggling mentally, emotionally, every way possible;
·I was under duress and was about to be evicted;
·I did not write it to hurt but to defend myself ... it was a mistake;
·I regret it. I wrote to defend myself; and
·It was not to coerce or control but was a threat.
Within the confines of the law I must apply, there are no excuses for what he threatened. The father accepted the first time he expressed regret about the Agunah threat made in late 2018 was in his evidence in chief filed 17 June 2024 almost 6 years afterwards. But his apparent regret, whilst mentioned several times in cross-examination, was tainted by the father’s efforts to justify what he wrote. Further, his attempts to justify his threat is irrelevant to the target of this appalling menace – the mother, who at 26 years of age, was threatened with being a chained woman. I also do not accept his explanation that he never acted on his threat. That may be true at one very basic level, but he wrote the words. He made repeated references to the threat being a mistake but that was not known to the mother and nor did it really matter because he articulated it in the first place. I also do not accept the father’s minimisation of the threat by saying she would have felt intimidated “back then” and, it was “one email six years ago”.
I find the father’s threat to make the mother a chained woman with all the opprobrium, shame, hurt and restraints that attached to that, fits squarely within the s 4AB definition of family violence whereby he used his power of Gett refusal to threaten to deprive the mother of her autonomy and agency; that was the “objective actuality” (Pickford at [111]). I also find he made this threat to both control and coerce the mother with respect to the parenting arrangements that were being discussed, with the mother having very little weekend time with the child as a consequence and the removal of other items such as travel from the ultimate agreement.
I accept that the father’s threat to make the mother a chained woman would have an enduring negative impact on the mother. In cross-examination, the father accepted that the mother, (unsurprisingly) disengaged from communicating with him for a period after the Agunah threat and relied upon her father to do so. However, in his written material the father was critical that he had to engage with the maternal grandfather.
To make matters worse, his awful threat came only two weeks after the father emailed the mother in late 2018, saying:
…[Ms Briedis], I can't rewrite history nor can I fix the past. However, the future still lies ahead of us.
In regards to our son, [X]:
[Ms Briedis], I'm begging you, for [X's] sake, let us try once more to rebuild our marriage and keep the family unite, so [X] will have the chance to live with both his parents, Give me the chance to put in all my effort to make it work, to make you happy and to make you feel loved and cared for…
…
I had many long conversations with [the Rabbi]. I shared with him how much you mean to me, how much I miss you and how much I regret my actions…
[Ms Briedis], please find it within your heart to forgive me, as I am truly sorry. Please grant me one last chance.
(Emphasis Added)
(Exhibit 9, p.22-23).
That was an empty plea and meaningless regret because two weeks later her threatened her with a shameful, disenfranchising and alienating outcome of being a chained woman.
I also do not accept the father’s threat to make the mother a chained woman was uncharacteristic. To the contrary, for the chained woman threat above and the examples below, I find the father engaged in “threatening or other behaviour” that coerced or controlled the mother. Thus, he has committed acts of family violence upon the mother within the definition in s 4AB of the Act, both on the exclusive and inclusive approach taken to the definition.
For example, in mid-2018 (pre-separation), the mother went looking at a car with the maternal grandfather, but the father needed keys to get back into the house. This resulted in the following between the parties:
[father] Don't expect me back for a while
[mother] i need to know where my son in
[father] If you care for your son you will give me the keys so he won't catch a cold
[mother] sure can i come along
[father] I don't want u
[father]: U have 6 minutes until uber comes. If you don’t give me keys it will make things worse
[mother]: in terms of what?
[father]: All terms
[father]: I’m not playing games
[mother]: ??
[mother]: so tell me where ur going how is that a game?
[father]: I don’t have to tell you
[father]: 4 minutes left
[mother]: i prefer [X] doesn’t go out now
[father]: I really don’t care about your preference
[father]: 2 minutes
[father]: 2 minutes left
[mother]: does uber have a carseat?
[father]: You will regret it
…
(Exhibit 7, p.2-5).
(Emphasis added)
In that exchange, the father was, and I find, dismissive of and threatening to the mother. In cross-examination, the father called this “in the heat of the moment” and “out of character” but did admit he was trying to control her with his threats to get what he wanted. Indeed, he threatened her with making “things worse” and that she would “regret it” if she did not do what he demanded. The mother acceded to the threats.
As another example, in early 2024, the child attended on Dr K, the clinician assessing X. The father deposed the child was sitting on the mother’s lap and was asked about H (the father’s son with Ms G). The child said, “I don’t have a brother”. The father complained the mother did not intervene. The mother said she was told not to by the clinician. The father emailed the mother a week later in early 2024 and said, amongst other things, “As regards to [H], [X's] half brother, it is more than disturbing that [X] has repeated your words to us that we love [H] more than him”.
No doubt these things upset the father, but rather than ask the mother if she could give any context to this, or step back and think maybe the child was just saying things (especially given his father’s new family), the father’s text continued:
I am putting you on notice that one more inappropriate comment made to [X] actively or passively will come with legal ramifications.
(Emphasis added)
(Exhibit 9, p.77).
No matter how much the father tried to justify his response in cross-examination by saying his use of the word “ramifications” was wrong and he said things “out of concern for the child”, his communication to the mother was, simply put, a threat – if she did not cease what the father thought the mother was telling X or letting him believe, then the father would take action and there would be legal ramifications for the mother. A couple of days later, the mother replied asking the father to stop with the accusations and to “please desist with the threats”. It is plain the mother took the text as a threat – and I find it was too. I also find this was an example of the father blaming and threatening the mother, instead of asking her if she could give any insight to the comments, or, appreciate it could just be the child saying stuff, or, the child being confused how he fits in his father’s life given his new sibling in the father’s home, another child on the way, and, being allowed to call Ms G (the father’s wife) “Ima” – a word for mother in Hebrew.
As another example, it is also clear that the father allowed the mother little visibility to their finances during the relationship. For example, when the mother asked a perfectly reasonable question about money in the bank, he responded:
[Father]: When I get home I can show u it all
[Father]: I’m not a thief from our joint account. And you are disgusting to even suspect me of such!
[Mother]: I didn’t suspec[t] such a thing?
[Mother]: when did I say that?
[Father]: Don’t lie to yourself
…
(Emphasis Added)
(Exhibit 9, p.2-3).
I do not accept the father’s explanation that there were other emails which gave context to or justified his non-sequitur accusing the mother of calling him a thief and making a derogatory taunt by calling her disgusting when she asked a perfectly reasonable question about matrimonial finances. No other emails were put before me giving such context. Instead, I find: the mother’s questions about family finances were entirely appropriate; that she had to ask meant she did not have transparency on their finances; the father’s response was inappropriate, accusatory and demeaning of the mother and her entitlement to information; and, it tells poorly on the father’s attitude to the mother that he sought to justify calling her “disgusting” for asking a perfectly reasonable question.
On these above examples (starting with the father telling the mother to ask her father to finance her and X’s basic needs even though they had joint funds, then to the threatened Gett refusal, through to the examples just given), I have no hesitation in finding the father committed acts of family violence as defined in a 4AB of the Act via his threatening and other behaviour to coerce or control the mother. Having watched the parties give evidence, I also have no hesitation finding the father had and has the ascendency in terms of a power imbalance between he and the mother, using threatening words as his weapons. Certainly, the mother was able to stand her ground on some issues (such as the 2024 arrangements for a religious holiday, but then the father deceived her about collection arrangements anyway), but to suggest that negates his controlling behaviour is to misunderstand the wider power imbalance in this relationship and the father’s coercive and/or controlling conduct towards her.
When the father was being cross-examined about his threats, he replied, inter alia, that he made the threats because he was being threatened that the child would be removed from him. Even if that were true, one does not justify the other. There was no cross-examination of the mother or her family on this topic. I was also not asked to make any findings against the mother or her family about this. Suffice to say, I do not make any positive findings that the mother or her parents threatened the father.
Even though neither party said X was unsafe in the care of the other, my findings about the father’s family violence towards the mother have flow on effects to the overall Part VII discretionary exercise, if “it demonstrates lack of insight or stunted parenting capacity” (Pickford at [112] per Austin and Williams JJ). This sits along with a consideration of the parent’s capacity to engage with the other if allowed, or not allowed, to relocate with the child when the mother’s parents leave Australia. The outcomes of these considerations all have potential flow on impacts for X.
(b) any views expressed by the child
Family Report interviews took place on 6 December 2022, meaning X was just six years old. The report indicated when the CCE attempted to ask X questions about his family:
54. [X’s] response was “I don’t like to say all the details”. [X] did not seem to want to talk about his relationships in depth, which is to be expected for a child his age, as he was more occupied in play.
X asked the CCE if his parents would be told about what he said in the interview, and that he didn’t “want them to know everything”. It was then reported:
55. …The Court Child Expert observed that [X] did not wish to continue to talk about family relationships and wanted to focus on play, therefore, clear views were not obtained from [X] in this assessment.
Notwithstanding the gatekeeper idea, the father accepted (and I find) he and X have a “strong connection”, and he likes being an older brother. Ms G said the child and father had a “particularly strong bond” and I accept that too. On all accounts, X and Ms G engage well, which I also accept.
To those ends, I accept the CCE’s evidence that the child and father have a strong relationship, because, in part, the mother facilitates this. That stands to reason.
I also accept Ms G’s observations that: the child's interactions with the mother and her family were positive; those interactions were important for the child emotionally, for his wellbeing and sense of belonging; the child is "incredibly close" to the maternal grandparents; and, the child has only ever lived with the maternal grandparents and mother.
If relocation is not permitted, the child will have regular, experiential time with both parents and the father’s wife and their children. But on the mother’s case, he will have a mother who is isolated, vulnerable and exposed to the prospect of further coercion and/or control by the father without the support of her parents’ physical presence.
The child will also suffer the loss of the maternal grandparents when they move to the USA, if relocation is not permitted. The mother agreed that when the maternal grandparents went overseas to visit other family in late 2023 and the child and mother stayed behind, the child “was distraught” and cried every night.
Yet, if relocation is permitted, X’s relationship with his father, stepmother and siblings will change too. The mother is well aware X will be upset at the loss of regular time with his father and wider family. I accept that too; if relocation is permitted, he will lose the regular, experiential time with his father, the father’s wife and their children and will likely be very upset about that.
(f) anything else that is relevant to the particular circumstances of the child
The visa issue
The mother is an Australian citizen, a citizen of Country CC but not a US citizen. She therefore has no rights to reside in the USA. She agreed that absent a Visa she could neither live nor work in the USA. Initially in her cross examination, it seemed astonishing that she did not know very much about the E3 or other Visas upon which she proposed to travel with the child to the USA and whether health care access rights attached, or not - she had no idea about what her work rights might be in the E3 Visa nor who might sponsor her. She had no idea if the E3 Visa came with rights to government benefits or access to health care. She had no idea if she would be able to access the kind of specialist supports X needs.
However, as the trial unfolded, it became patently clear that the mother relies upon her father, the maternal grandfather, to undertake such research and make things happen. Accordingly, it was the maternal grandfather who had sought advice from an immigration lawyer in the USA and was able to answer questions about the topic. It was the maternal grandfather, who had made inquiries about jobs for the mother. No one suggested this was culturally inappropriate or misplaced. This is just another example of the mother’s dependence upon her parents, and in this specific case, her father.
Ultimately, the Migration Expert gave impressive and comprehensive evidence about the options available to the mother and child, including the E3 Visa, which is for Australians, and how that can lead to permanent residency. On the strength of the expert evidence, I am well satisfied the mother will be able to chart a path to the USA and permanent residency and have no doubt she will be assisted by her father in doing so.
The CCE’s opinions
The parties’ counsel did not particularly rely upon what the CCE wrote and said in cross‑examination.
The mother’s counsel submitted, and I accept (as did the CCE), that the CCE’s recommendations in her report were prefaced, in part, on accepting the father telling the CCE:
… that he would be willing to financially support [Ms Briedis] to travel overseas with [X] if it meant he could spend time with the maternal family. … . [Mr Saar] said that he would be willing to have a conversation with [Ms Briedis] to discuss how he can support [X] to maintain his maternal family connections.
(Exhibit 1, paragraph 43)
As it turned out, he did nothing of the sort – not that the CCE could have predicted this at the time of her report. When this was raised with the CCE she said that heightened her concerns for the mother’s loneliness, stress and isolation if she remained in Sydney without the support of her parents close at hand.
It had also been the CCE’s opinion at paragraph 78 that the father offered a “protective factor” for X if the mother remained in Sydney after her parents left and her mental health declined, or she otherwise struggled to cope. After being taken to the father’s threats, such as the Agunah threat and more recent 2024 Passover deception, the CCE agreed the father’s presence was not a protective factor, because the mother’s stress and anxiety were due in part to the father’s conduct. The CCE added it would be hard for the mother to rely upon the father if she deteriorated and had no maternal support. I agree; the nature of the father’s threats and deceptive conduct objectively do not permit of such trust and support.
In the same paragraph 78 and at paragraph 25, the CCE had asked whether the child’s relationship with the maternal grandparents should take precedence over the child’s relationship with the father. The CCE agreed in cross-examination that the matter was far more nuanced than that. And it is.
I accept submissions from the mother’s counsel to the effect that the CCE had not fully appreciated the power imbalance that existed between the parents and the coercing and/or controlling nature of the father’s threats to the mother. Of course, I had the benefit of seeing the parties’ cross-examination and the CCE did not.
Respectfully, it seemed that it was not until cross-examination that the CCE joined the dots that (depending on my findings) one source of the mother’s vulnerability and anxiety came, in part, from the threats the father directed to her and the implications therefore to her sense of wellbeing and her parenting if she remained in Australia without support. True, the CCE certainly appreciated the support the mother took from her parents in her report, but the correlation to the need for such support coming, in part, from the father's behaviour to the mother was not something she seemed to have fully appreciated as a possible factor until cross‑examination.
In cross-examination from the father’s Counsel, the CCE maintained her view that the child not relocate, but I formed the view that she was no longer as wedded to that as she had been at the start of cross-examination.
As was said a long time ago, “there is no magic in a family report” (Hall and Hall (1979) FLC 90-713 at p.78,819 (“Hall and Hall”)). Family reports are important pieces of evidence, but report writers are not the adjudicators of disputes, and their recommendations cannot control the outcome; as the Full Court observed in Klein [2010] FamCAFC 150 at [241] referring back to Hall and Hall:
...we simply observe that the family consultant is ordinarily an expert witness whose task is to assist and advise the court. The function of the family consultant is not that of an adjudicator. The family consultant brings to bear an entirely different expertise and experience from that of a lawyer or perhaps investigator. The family consultant may, as an expert, express an opinion on the ultimate issue; see s80 of the Evidence Act 1995 (Cth). However, as the Full Court made clear in Hall and Hall (1979) FLC 90-713 at p 78,819:
“there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities”.
Further, unlike the CCE, I have had the benefit of assessing all the evidence and have watched the parties in cross-examination.
I found the CCE’s opinions about the needs of a neurodiverse child to be very helpful, along with the possible impacts on the mother as the residential parent of a neurodiverse child without her parents’ support.
The advantages and disadvantages of the competing proposals
The advantages to X of remaining in Australia are:
(a)He will have both parents, his stepmother and his siblings regularly in his life;
(b)The parents will be able to use school for most changeovers;
(c)Both parents will be able to have involvement with his school, education, extra-curricular activities and his faith;
(d)His faith will be maintained;
(e)Obviously, if the parents are geographically close, it will make it easier to cater for the sharing of Jewish Holidays and the Sabbath;
(f)He will have continuity in his treating team of the allied health professional and paediatrician;
(g)He will have continuity in his school and friendship groups; and
(h)He will have a home base in the sense described by the CCE for a neurodiverse child.
The disadvantages to X of remaining in Australia are that:
(a)The child will primarily live with the mother. He is a neurodiverse child and without the maternal grandparents’ support, there could be negative impacts on the mother’s functioning;
(b)His mother will be physically isolated from the maternal grandparents and the support they provide;
(c)X will have the loss of his relationship with the maternal grandparents with whom he is close and has lived with almost all of his life;
(d)X’s mother will need to deal with any of the father’s continued coercive, controlling, threatening, intimidating and deceptive ways, physically on her own;
(e)The mother is an untested solo parent in how she may cope with (a)-(d);
(f)As a corollary of (a) to (e), the mother’s capacity to parent may be impaired. By that I do not mean her capacity to physically provide for the child’s day-to-day needs, but her capacity to be emotionally available to him and deal with the stress and imposition of the father’s conduct and without the support of her parents (or as the CCE called it, “not be present” for him); and
(g)In turn, I accept the CCE’s opinion that if the mother is not present for X, that poses a risk to the child’s mental health and school performance and all the more so as a neurodiverse child – in short, if the mother is not at her best, then that may have short term and long term adverse implications for X.
The advantages of relocating X to the USA are:
(a)The child will be physically and emotionally close to the maternal grandparents with whom he has lived all his life, save for about three months;
(b)The mother will have close-by emotional and physical support of her parents and thus X will have the benefit of a mother who is supported in all the ways just described. I accept the maternal grandparents will visit other family in Country D and the UK (and possibly holiday elsewhere) from time to time, but their absence for a holiday and then return, is a completely different thing for the mother enduring their absence if her parents permanently reside in the USA and she is in Australia;
(c)The mother will deal with the father’s conduct from afar and with the benefit of her parents close-by;
(d)X will have a home base in the sense described by the CCE;
(e)His faith will be maintained, albeit not with the father’s active involvement. The father though said he trusted the mother’s decision making in this regard and the Single Expert Mr W said in unchallenged evidence that the presence of a father in a child’s life is not mandatory and the absence can be managed; and
(f)X’s father and step-mother have the ability to live in the USA if they chose, thereby being closer to X where the mother would be supported by family.
There is nothing actually stopping the father (and his wife) from moving to the USA other than a preference to be in Australia – or as Gaudron J said in U v U at [35]:
It is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
The father and his wife are American citizens. The father works as a finance professional which is a profession well known to the USA. His wife is an allied health professional and worked in her field in State DD. Their children must have residency rights attached to their parents’ citizenship. The father’s parents live in Country D. Whilst Ms G’s parents live in Melbourne, she also has a relative in the vicinity of the town in State B not far from the mother’s relative where she proposes to move. Whilst they have apparently bought a house in Suburb AA, they could sell it, just as they bought it.
Both the father and Ms G told the CCE they did not want to raise babies in a new country. But the USA is not new for either adult.
In other words, I find the idea of the father and his family moving to the USA is not fanciful or remote; it just does not accord with his lifestyle choices and preferences to remain in the community they have developed in Sydney. Of course, the father is entitled to live where he wants but ultimately, I must decide what is in X’s best interests.
The disadvantages of relocating X to the USA are:
(a)The “sub-optimal” (father’s submissions) loss of his regular, experiential relationship with his father, Ms G and their children, which may manifest in feeling abandoned, resentful and jealous. The mother appropriately agreed the child will likely be very upset if no longer seeing the father as frequently as can occur if living in Sydney;
(b)FaceTime has not worked in the past, but all parties propose electronic communications if relocation is allowed and the father also seeks it should the parties travel with the child on holidays. X is also older now than when it was problematic. However, I accept FaceTime with his young siblings will be meaningless for some time;
(c)The unknown variables mentioned by the CCE in her report at paragraph 83 which she clarified in cross-examination to be: a new school, new housing, a new medical team (currently an allied health professional and paediatrician);
(d)International travel to be accommodated for and around Jewish holidays and the Sabbath - but this would occur, albeit on a less frequent basis if the child stayed in Australia but could, on the father’s proposal, go to the USA each year. The parties were eventually able to work out permitted travel plans at the interim hearing of the mother’s application to visit the USA with the child in January 2025;
(e)It will be impossible for X to share all Jewish Festivals with both parents; and
(f)The cost of travel, but the mother proposes to fund some travel and give the father up to AUD$10,000 per annum for travel.
In cross-examination, the mother was questioned about her lack of “lived experience” in State B. I consider that a red herring - the father lacked lived experience in Country D when he moved there with his family when he was about X’s age. The mother as an adult lacked lived experience in City C when she moved there. The mother lacked lived experience when she moved to Country D with the father upon marriage. The father lacked lived experience in Sydney when he moved there with the mother for the birth of X and lived with the maternal grandparents.
Discussion
Looking at the advantages and disadvantages of the proposals and within the prism of the s 60CC factors, I am persuaded that it is in X’s best interests to be permitted to relocate with his mother to the USA. In so concluding, I completely accept X’s relationship with his father, the father’s wife and siblings will change, but I am satisfied the child’s strong connection with his father gives a solid foundation for the relationship to remain strong from afar. The quantity of time will change, but the quality of relationship has a solid basis. In that regard, I accept the CCE’s opinion that:
… [X] is at the school age of development whereby he has the capacity to maintain family connections via video calls. [X] has already established a positive bond with his father within the first five years of his life, which is the crucial stage to form these attachments. Now that he is older, he has the capacity to maintain these connections, even if there is limited face-to-face contact. However, it is acknowledged that this connection would still be limited given the lack of proximity to his father and ability to spend quality time with him. …
(Exhibit 1, paragraph 79)
I accept X’s relationship with his siblings is rudimentary and does not yet enjoy the same quality as the father-child relationship. Yet, I am persuaded to permit the child’s relocation for the following reasons.
First, the mother has parented the child with the support of her parents integrally involved in her life and X’s since his birth. Her dependence on her parents is clear.
Second, the idea of the mother being the primary carer of a neurodiverse child without her parents in Australia, is an arrangement that is untested for the mother, but more so for X.
Third, the father’s family violence via appalling threats and derogatory taunts, and his deception during the relationship, the aftermath of separation and six years on in 2024, along with the mother’s physical isolation from long-held supports is more likely than not to have a negative impact on her capacity to parent (in the sense previously described) and therefore impact on X.
Put differently, the power imbalance between the mother and father, which I have already found, combined with the mother’s anxieties, stress, and dependence on her parents means I do not agree with the father’s view that “she will cope” on her own in Australia, and, will be on the likely receiving end of the father’s weapon-like words and actions.
Fourth, in the USA the mother will be supported in her capacity to parent X, bolstered by physical and emotional family support when dealing with the father.
Fifth, I am satisfied the mother will support the child’s relationship with the father from afar. I am satisfied because the child has a strong connection with the father which, in part, must come from the mother facilitating it. She also offers a significant sum of money for the father and his family to travel to the USA each year.
Sixth, I accept there are risks to X’s wellbeing that he may feel abandoned by the father, resentful and jealous. It will be important for the mother and father to assure him that he is much loved, and I am sure they will; the mother had insight and spoke candidly of X’s upset about the absence of his father if allowed to relocate. But staying in Australia with a mother who may not be in the present (to use the CCE’s term), and the risk of compromise to her capacity to parent also brings short and long term risks to the child and overall mental health.
Seventh, I accept X struggled with his new school in 2022, but he settled with school assistance and parental care. He also now has diagnoses whereby appropriate supports and therapeutic assistance can be engaged.
Eighth, there is no credible suggestion that the father’s actual capacity to parent (and by that I mean quality, not quantity) would be any more or less affected if the child was in Australia or in the USA.
Ninth, I accept the father said he will have to juggle his annual holidays with religious days and continue to take unpaid leave to see X – but he does that in Sydney too. The father said, and I accept, this is a problem for Jews all over the world.
Tenth, I accept this is a “suboptimal” outcome for the father and child’s relationship, as was said in submissions, but it probably would be for the mother too (and derivatively the child) if she stays here; that is the nature of the options that present in relocations.
The idea of a less than optimal relationship has long been discussed, for example:
The Court is tasked with considering the benefit to the child of a meaningful relationship. A relationship may be less than optimal but nonetheless meaningful (Godfrey & Sanders[2007] FamCA 102 (“Godfrey”) at [33]-[36]; Sigley & Evor[2011] FamCAFC 22; (2011) 44 Fam LR 439 at [182]). The primary judge, however proceeded on the erroneous basis that a relationship that is something less than optimal cannot be meaningful.
(Rochford & Fitzhugh [2019] FamCAFC 218 (21 November 2019) at [23])
I acknowledge this was said about an earlier iteration of the Act where the adjective “meaningful” applied to relationship, but using the current language, I accept X’s relationship with his father (and his family) can be less than optimal, but still of benefit to X from a distance.
Finally, X’s faith will be maintained.
Orders
At the end of the hearing, each party handed up proposed Minutes of Orders. I have made orders that I consider in X’s best interests sourced from each of the Minutes, but varied some as set out below. I have also re-worded some proposed orders to be less wordy or to adopt the language of the Act, without changing the intent. I have deleted internal inconsistencies, for example, an order about the provision of education information to the father which also included a reference to medical providers when that was the subject of a separate order.
The mother and father propose they jointly share decision making for major long-term issues but had different wording to achieve that and the mother proposed a carve out for emergency decision making for both parents. The ICL proposed joint decision making if the mother and child were in Australia but proposed sole decision making if the mother was permitted to relocate with the child.
I will make an order for joint decision making for major long-term issues, because: (a) the parents agree on that; (b) the father has value to add to major long-term decisions concerning the child; (c) I will make orders conditioning how the parties communicate; (d) this decision making concerns major long-term decisions as defined in s 4(1) of the Act, not day-in-day-out decisions which would require constant communications; and, (e) the mother will have distance and the comfort of her parents if the father resorts to threats or unfair accusations.
The father and ICL’s order recited s 61DAA(1)(a) and (b) of the Act (consult each other and make a genuine effort to come to a joint decision), which I consider unnecessary because that is what is required under the Act anyway. I consider the father’s proposed order 1.3 “Make a joint decision which is evidenced in writing prior to acting or taking steps to implement any joint decisions made pursuant to this order” to be unnecessary because I will order that parental communications be in writing, save for emergencies. His drafting also has the potential to prevent the mother from making holding appointments for the child with medical/health people so at least X has a foot in the door should the father agree and not wait for the agreement before making appointments.
I also prefer the mother’s carve out permitting decision making by both parents in relation to the child’s emergency treatment when in their respective care. If X needs emergency care, then he needs emergency care and that should not be constrained by one parent’s inability to raise the other parent due to, for example, time zone differences.
Both the ICL and father had day-to-day decision making orders, but I prefer the ICL’s which provide for emergency treatment for the same reasons in the previous paragraph.
Airport watchlist
The parties agreed to an interim lifting of an Airport Watchlist order to facilitate the mother and child’s travel to the USA at the start of January 2025. In the event the child’s name has been re-added upon his return, I will make an order his name be removed to facilitate the child’s relocation to the USA.
Time until relocation
The parties entered into consent interim orders on 23 October 2024 providing for a 9-5 term time arrangement. The father’s Minute of final orders sought to increase the time to 8-6 from Term 3 2025, but the child will be soon to depart for the USA and this was not supported by the CCE as a term time arrangement. I will thus leave the 9-5 arrangement in place until relocation.
There will be some school holidays in 2025 prior to the relocation – end of Term 1 and end of Term 2. The mother proposed half holidays in four day blocks and specific provisions for Jewish Holidays. I consider four day blocks to involve too many changeovers and be unduly restrictive when the mother is proposing the child spend two and four week blocks of time with the father on her relocation. Hence, I will make:
(a)The father’s proposed 5.1 (and similar to ICL’s 8.1), being the child spend all of the end of Term 1 holidays including the Pesach festival with the father. I consider it in X’s best interest that he have a good block of time with his father prior to relocation, after which he will be spending block time too. Further, the mother proposed that after relocation, X spend two weeks with the father including Passover albeit from 2026. I see no reason to delay that to 2026, but better he experience block time with the father when both parents are proximate;
(b)The father’s 5.3.2 (half holidays, first half to mother) but only referable to the end of Term 2 2025 holidays. I have already said why I will not make the mother’s four-day block proposal. The ICL said the father have the first half (8.3.1) but there is no magic in any of that and I simply prefer the father’s order as he, X and the mother have to live the outcomes, not the ICL;
(c)I will however make the mother’s proposed 13.2.5.4 being the child spend the entirety of the Festival of Shavuot with the father in 2025 if he is not otherwise with the father. This is an important Festival, which the father and child can enjoy prior to X’s relocation;
(d)I will also make an order that the child will live with the mother when not otherwise with the father to avoid an earlier clash of interpretation where the father said the mother did not get to enjoy a Jewish Holiday because she was not named in the order; and
(e)Finally, I will make the ICL’s 8.5 so there is a mechanism for working out half holidays.
Both the ICL and father had proposed changeover orders but as a matter of form, neither were directed at either party to do anything. Instead, I will re-make the changeover order from the consent order of 14 May 2021, which is directed at each party. It also takes a commonsense approach to the topic. I will make the father’s order about using an agent known to the child (15) to avoid a repeat of the imbroglio surrounding the 2024 religious holiday.
I will make the father’s communication orders at his 16 and 17; it is important X has communications with his father. His orders apply whilst the child is in Australia and thus will apply up to the child’s relocation.
I will not make the orders sought by the father at his 6 with respect to Jewish Holidays – in 2025, Rosh Hashanah and Hanukkah will occur after the mother and child relocate. I am making the mother’s order that the child be with the father for Shavuot 2025, and it is the father’s case that the child spend both Purim and Lag B’Omer with the mother in 2025.
I will also not make the special occasion orders at 7 sought by the father - the child will have relocated before his birthday and Father’s Day. The mother does not seek time on Mother’s Day if the child is not with her, so it can just fall as it falls.
I will not make the father’s orders at his 8 listing a priority of holiday days. I appreciate these days are important to the parties and child, but orders need certainty (English and English (1986) FLC 91-729 at 75,295) and these proposed orders do not promote that. I do not understand his cascading priority of special days and how that impacts the balance of orders and who will make the decision if a dispute arises.
Relocation
Should relocation be permitted, the father said that occur from August 2025; this is not elevated to a proposal, just his input if I was against him. The mother said relocation from June 2025 and the ICL from February 2026. The latter was to maximise child-father time before the relocation; neither parent embraced this.
I consider the father’s fallback date to be appropriate as it gives the child a little bit more time to enjoy his siblings and father, but not so long as the ICL’s proposal where the mother would be potentially in limbo for a year. There was also a suggestion from counsel that the State B school year may start in September and if so, then a February 2026 departure would see X joining school midway through the USA school year, which would not be ideal. Instead, the August 2025 date dovetails well with the longer USA school holidays and new school year thereafter. X should be able to start his new school at the start of the new USA school year.
Both the father and ICL sought orders that the mother relocate to Town M, State B, USA; it is not for me to order where she lives, other than permit relocation of the child to a country, or not.
As for actual time arrangements upon relocation, the CCE “recommended that X have face-to-face contact with his father minimum twice yearly, both in the USA and in Australia” (Exhibit 1, paragraph 88).
Accordingly, the mother proposed the child spend time with the father:
(a)For two weeks in Sydney in even years for the Jewish Festival of Passover;
(b)For two weeks in Sydney in odd years for the Jewish Festival of Succot;
(c)For four weeks each year in Sydney, Australia or the USA (at the election of the father) for the USA summer schooling vacation commencing in or about August;
(d)For time in Sydney the mother or family would accompany the child to and from the USA and in addition to those costs the mother would pay the child’s airfares on one occasion per annum;
(e)If the father elected to spend time with the child in the four week USA summer vacation in Australia, then the father was to pay the child’s airfare;
(f)For two weeks in the USA in even years for the USA mid-winter school holiday in December/January; and
(g)The mother will pay up to AUD$10,000 per year to facilitate the father’s travel to the USA to visit X.
Thus, the mother proposes the child spend block physical time with the father three times in even years (one of which in the USA and the 4-week block at his election) and twice in odd years (one in Sydney and the 4 week block at his election). She proposes the father cover some costs, but offers up to AUD$10,000 per annum to assist.
The father proposes X spend time with him:
(a)In Australia two times a year in even years and then three times a year in odd years, covering, the entirety of:
(i)the September/October school holidays and festivals,
(ii)the March/April school holidays and festivals;
(iii)the July school holidays;
(iv)And the mother is to meet all costs including accompanying adults
It is not clear whether the references to school holidays are Australian school holidays or those referable to the school the child will attend in State B. It is also not clear how the parties would agree on which two holiday blocks of the three in even years. The proposal continues:
(b)In the USA for a 14 night block once a year on the father giving 60 days’ notice of his travel dates and the mother is to pay for the father’s flights and accommodation which he will select;
(c)Any other time he can be in the USA for up to seven consecutive days on 30 days’ notice, but another clause says 60 days’ notice (26.1 and 26.4), and, one clause say he will meet the costs of the additional visits but another saying the mother is to pay for the father’s flights and accommodation which he will select (26.3 and 26.5).
The father thus proposes two visits in Australia one year and three in the other all at the mother’s expense, one trip by the father to the USA on giving notice each year at the mother’s expense, and then 7 day blocks on giving some notice to the mother which may or may not be all at her cost too.
There was little, if any cross-examination of the mother about whether she could afford to pay all the father seeks. I am satisfied the father’s view would be the maternal grandfather could pay given the father’s references to the maternal grandparents’ apparent wealth in cross-examination and to the CSA. But the grandfather is not a party to these proceedings and has no obligation to help his daughter to meet the father’s travel and accommodation costs. Conversely, the father has convinced someone he can service a $2.55 million mortgage along with the other calls on his resources.
I will make most of the relocation orders sought by the mother, being her 3-8 but use the father’s date of August 2025. I consider the mother’s orders are cleaner, clearer and more certain, providing both surety of time and sharing of some Jewish Festivals. I am also satisfied that if the father will not or cannot fund trips for which he is responsible on the mother’s regime (including the AUD$10,000 offered by the mother each year), then, what the mother will fund will assist X maintaining his relationship with his father, stepmother and develop relationships with his siblings. I am satisfied the mother will fund what she proposes to fund, as I find it improbable that she would seek orders she could not make happen.
Plainly, the child will need a visa/s, a passport and renewals – Australian and US when relevant - and I consider the mother’s 10-12 to be appropriate.
I prefer the father’s communication orders (28-30 if relocation permitted) over the mother’s as the father’s orders are more expansive in platform options, provide for missed calls, and facilitate the child calling the father as X may request.
I will also make a version of the father’s orders 21 and 22 as I consider it both appropriate and important that the father be included on school enrolment forms and have access to educational and medical information. I will not make the reference to the father being an emergency contact on school documents in his order 21 as that is just not practical. If X needs emergency collection or care, then he needs someone on the ground who can make it happen and not a hemisphere away. I will not make the father’s order at his 32 and 34-35 as they double up with or cut across his order 22.
I will not make an order preventing the father from attending any medical appointments if in the USA (he sought positive permission at 35); he is the father with parental responsibility and that is something he can navigate with the service providers should he be in the USA. The balance of his order 35 is unrealistic and risks compromising X’s specialist medical care - if a parent cannot confirm an appointment without giving the other 48 hours prior written notice, then the appointment may be lost to some other patient who can give the doctor’s rooms confirmation on the spot.
I will however make his order 33 because it would likely be enriching for X for the father to join in school functions ordinarily attended by parents if the father is spending time with him in the USA at a time X is at school.
I will also make a version of the orders sought by the ICL and father that neither parent further relocate the child’s residence from the USA without authenticated written consent or court order, but will add whatever may be required at law in the relevant jurisdiction. I accept though this may well be a matter for the relevant court in the USA to determine should the prospect arise.
No one proposed any change over orders if relocation was allowed and hence I will not make any. The parties will have to work this out themselves.
Other orders irrespective of where the child lives
I will make the mother’s orders 17, 18 and 19. These orders regulate parental communications in emergencies and non-emergencies and require information updates on residential addresses.
The father’s parental communication order at his 31 is fraught with potential for dispute: what is a “pressing but non-emergency issue” which would permit telephone calls? Similarly, what might be a “minor day to day issue” to one parent warranting email, text or WhatsApp parental communication, may not be to the other.
Given the complexities of the parties’ competing proposals and the intricacies of the travel arrangements and Jewish Holidays, the parties will have liberty to apply on matters of interpretation and implementation.
Orders sought but not made
All parties sought international travel orders, but it seems the mother and ICL only sought such orders if relocation was not permitted.
The father seeks a range of orders for international travel with the child if the mother relocates with the child, and, if the child is spending time in Australia if relocation is permitted, but I am not prepared to make such orders for hypothetical travel. If either parent has actual travel proposals outside of the to-and-fro Australia and USA trips for X, they will either have to agree, or find the relevant court to bring such an application.
I will not make orders for when the child will travel unaccompanied (e.g. father’s order 9.5 and 27.5). I cannot possibly crystal ball gaze whether X would be up to that at 14 (as the father sought) or some younger or older age. In the meantime, airlines have policies about these things, and each parent gave evidence the other would make appropriate decisions for the child.
I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 20 February 2025
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