FAMILY COURT OF AUSTRALIA
| EAST & LOEWE | [2015] FamCA 517 |
| FAMILY LAW – CHILDREN – Relocation to the USA – Where the mother seeks an order to relocate the child to the USA – Where the father opposes the relocation order – Where both parties agree the mother should continue to be the primary carer of the child – Where the mother has major non-melancholic or reactive depression and if she is forced to remain in Australia, she will function poorly and remain emotionally impoverished.– Where the mother’s psychiatrist opines the mother’s condition will likely deteriorate if she stays but improve if she returns to the USA – Where the proposals are finely balanced and risks to the child’s relationship with the father are to be weighed against the ability of the mother to act as primary carer in her current mental state –Where the best interests of the child will be met by allowing the relocation – Where orders are made providing for the father to spend time with the child in the USA and abroad – Where the parties will have shared parental responsibility after the initial decision about the child’s primary schooling in the USA is made – Where the parties ensure these orders be registered with the court in the USA – Where the mother’s application for relocation is allowed. FAMILY LAW – PROPERTY – Whether it is just and equitable to make an alteration of property – Where the father had the more significant initial and continuing financial contributions throughout the very short relationship – Where the father asserts the mother has failed to make full and frank disclosure – Where the mother will continue to have the ongoing primary care of the child in the USA – Where the father currently has a higher earning capacity – Where the mother has been unable to work because of her responsibility to care for a young child and her mental health condition – Order made for an adjustment of $50,000 in the mother’s favour. FAMILY LAW – SPOUSE MAINTENANCE – Where the mother seeks payment of spouse maintenance – Where the mother’s needs will be reduced upon her return to the USA – Where an assessment is made of the mother’s reasonable needs – Where the father has a capacity to pay – Order made for weekly spousal maintenance to the mother for twelve months or until she gains employment. |
| Evidence Act 1995 (Cth) Family Law Regulations 1984 (Cth) |
| Bevan & Bevan (2014) FLC 93-572 |
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- AGLC
- East & Loewe [2015] FamCA 517
- Case
- [2015] FamCA 517
- Decision Date
CaseChat Overview and Summary
The court's reasoning for allowing the relocation centred on the mother's mental health and her capacity to function as a primary carer. The psychiatrist's evidence indicated that the mother's depression was non-melancholic or reactive and that her condition would likely deteriorate if she remained in Australia, impacting her ability to care for the child. The court weighed the risks to the child's relationship with the father against the mother's ability to provide adequate care in her current mental state. Ultimately, the court found that the child's best interests would be met by allowing the relocation.
In relation to property, the court ordered an adjustment of $50,000 in the mother's favour, acknowledging the father's more significant financial contributions throughout the short relationship, the mother's inability to work due to childcare responsibilities and her mental health condition, and the father's higher earning capacity. For spousal maintenance, the court ordered the father to pay the mother $590 per week for twelve months or until she obtained full-time employment, considering her reduced needs upon returning to the USA and the father's capacity to pay. The parenting orders included provisions for shared parental responsibility after the initial decision on the child's primary schooling in the USA, detailed arrangements for the father to spend time with the child both in the USA and abroad, and requirements for the orders to be registered with a court in the USA.
Orders
Orders of the court
Parenting
1.
After a decision is made pursuant to order 3, the parties have equal shared parental responsibility for A Loewe-East born …, 2010 (“the child”) for major long-term decisions about the care, welfare, and development of the child including (but not limited to) issues concerning:
1.1. The child’s education (both current and future);
1.2. The child’s religious, and cultural, upbringing;
1.3. The child’s health;
1.4. The child’s name; and
1.5. All changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each of the parents pursuant to these orders.
2.
The decisions referred to in order 1 are required to be made jointly by the parties. The parties must consult with each other about these decisions and must make a genuine effort to come to a joint decision about those issues. I note that once these orders are registered in Texas, any impasse about any such decision would likely be determined by a court in Texas.
3.
The mother have parental responsibility for deciding where the child shall commence primary school in August/September 2015 provided that prior to making any final decision about this issue, the mother communicate with the father about this issue as soon as is possible, take into account his views, and make a genuine attempt to reach an agreed position with the father. In the absence of agreement, the mother is to make the final decision.
4.
The mother and father each have sole responsibility for making decisions about the day to day care of the child whenever the child is in their care.
5.
The Mother be permitted to relocate the child’s residence to Texas, United States of America (“USA”) not earlier than 31 July 2015 and at a time after the father has had an opportunity to have time with the child in accordance with order 6.1.
6.
Upon the child taking up residence in the USA, he shall live with the mother at all times apart from those times the child is living with the father or spending time with the father as follows:
6.1. The father shall have the opportunity, if the father has the ability to do so, to spend up to 12 days with the child in the United Kingdom (“UK”) prior to the child going to the USA, provided that the father could deliver the child to the mother no later than three days before the commencement of school term in the USA. The mother is to forthwith provide the father with written notice as to the date upon which the child’s schooling commences. The father is to provide written notice to the mother within a period of 14 days whether or not he has the ability to take advantage of this order.
6.2. During the child’s USA December 2015/January 2016 school holiday period for a period of 14 days, at the father’s option, outside the USA;
6.3. From 2016 in the USA on any occasion the father travels to the USA, subject to the father providing the mother with 30 days written notice prior to his arrival in the USA the child will live with the father as follows:
6.3.1. A period of up to two weeks during the child’s school holiday periods, and
6.3.2. During School term in week one from Thursday after School until Monday morning, and in week two from Wednesday after School until Friday morning; and
6.3.3. At all other times as agreed.
6.4. In the 2016 USA long summer school holidays for a period of 21 days, at the father’s option, outside the USA;
6.5. The child spend time with the father during the 2017 calendar year, for periods up to fifty six days in any year, at the father’s option outside of the USA, provided the longest period is no more than 28 consecutive days, and are separated by school terms;
6.6. The child is to spend Christmas Day 2016 with the mother and each alternate Christmas Day thereafter;
6.7. The child spend time with the father during the 2018 calendar year, and thereafter, for periods up to fifty six days in any year, at the father’s option outside of the USA, provided the longest period is no more than 42 consecutive days to coincide with USA summer school holidays, and are separated by school terms.
7.
The travel expenses in respect of the child shall be borne by the father until the mother obtains full time employment and are thereafter to be shared equally between the parties and the mother is to forthwith notify the father in writing in the event that the mother obtains full time employment.
8.
Unless the mother chooses at her own cost to accompany the child on any flight to and from the USA (or by agreement paid or partly paid for by the father), the father accompany the child on all flights to and from the USA, or elsewhere, until the child has attained the age of 10 years old.
9.
Unless the parties otherwise agree, all changeovers take place at the nearest international airport to the mother’s residence.
10.
The father be responsible for advising the mother in writing with reasonable notice of all changeover times and arrangements.
11.
Upon the child taking up residence in the USA, the mother will do all things to facilitate the child having communication with the father via Skype and if Skype is not reasonably available, by telephone or other electronic communication for up to one hour on no less than three times each week at such times as agreed between the parties, and failing agreement each Sunday, Tuesday and Friday between 5.30pm and 6.30pm Texas time and for that purpose:
11.1. Both parties shall do all things necessary to ensure each has in place the necessary technology to enable Skype communication between the child and the father to occur;
11.2. The mother create a location in her residence where the communication between the child and the father can take place without undue interruption.
12.
Upon the mother commencing to reside in the USA, she shall ensure:
12.1. The father is advised at all times of her residential address, contact telephone number and a Skype address by which the father may communicate with the child;
12.2. Advise the father immediately in the event that the child suffers any serious illness or injury;
12.3. Authorise any medical practitioner upon whom the child may attend from time to time, to communicate with the father in respect to the child’s medical condition and/or requirements, and
12.4. Authorise all schools at which the child may attend from time to time to:
12.4.1. provide the father copies of all school reports, school notices and school photographs in relation to the child, and
12.4.2. communicate with the father, either by telephone, in writing or other electronic means in respect to the child’s progress at his school.
13.
Both parties do all things and acts and sign all documents as are necessary to register in the appropriate court of Texas, USA, a copy of these orders, including making a written request to both the Registry Manager and the Registrar of this court pursuant to s 70M(2) of the Family Law Act 1975 (Cth) (“the Act”) and Regulation 24(2) Family Law Regulations 1984 (Cth).
14.
Pursuant to s.65DA(2) and s.62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
15.
Pursuant to s90SM of the Act within 35 days the father pay to the mother the sum of $50,000 and each party indemnify the other for any liability that party has or which attaches to any asset which they retain.
Spousal maintenance
16.
The father pay the mother by way of spousal maintenance a sum of $590 per week. The first payment is to be made within seven (7) days, and shall continue weekly for a period until:
16.1. The expiration of a period of twelve months from the date that the mother commences to reside in the USA; or
16.2. The mother obtaining full time employment
whichever event first occurs.
17.
In the event the mother obtains full time employment within the period of twelve months referred to in order 16.1, the mother is to forthwith notify the father in writing that she has done so.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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