H & T - [2004] FamCA 200

[2004] FamCA 200

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA Appeal No WA11 of 2003
AT PERTH File No PT1470 of 2002

BETWEEN:

H
Appellant Wife
- and -

T
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  NICHOLSON CJ, KAY & CHISHOLM JJ
DATE OF HEARING:                 17 February 2004
DATE OF JUDGMENT:             26 March 2004

APPEARANCES: Mr Stephenson of Counsel, appeared on behalf of the Appellant Wife
The Respondent Husband in person

H v T Appeal No. WA 11 of 2003

Coram: Nicholson CJ, Kay & Chisholm JJ

Date of Hearing: 17 February 2004
Date of Judgment: 26 March 2004

RESIDENCE – Relocation – Application by mother to relocate with child from Perth to United States – Need to evaluate the advantages and disadvantages of allowing or prohibiting the move

The parties commenced cohabitation in 1985, married in March 1991 and separated in February 2001. There is one child of their relationship born 22 July 1998. In February 2001, the wife commenced a relationship via the Internet with Mr K, a citizen and resident of the United States. The wife subsequently travelled to the United States to meet with Mr K and in late 2001 the couple became engaged.

In August 2002, the wife sought orders that would enable her to relocate with the child to the United States. She proposed that the husband have contact with the child by telephone and in person at least once a year in Perth. The husband opposed the relocation, emphasising that the wife had in the past failed to encourage the child to have contact with him and arguing that a move to the United States would damage an already fragile relationship between father and daughter.

Penny J was critical of the wife’s lack of enthusiasm in encouraging contact and found that it was unlikely that the child would maintain a relationship with the father if she was to relocate. The trial Judge made orders that the child reside with the mother in Perth.

On Appeal, the mother sought to challenge a number of the trial Judge’s findings, and argued that the trial Judge had failed to properly consider both the advantages and disadvantages of the relocation.

HELD, in allowing the appeal,

In determining an application that involves the relocation of a child, it is necessary for a trial Judge to evaluate each of the proposals advanced by the parties, weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for the best interests of the child.

The trial Judge appeared to focus on the reasons that militated against allowing the move and failed to give consideration to the benefits to the child that would flow from the move, including the flow on effect of the happiness of the child’s primary care giver and the potential economic advantages of the move. This failure was so fundamental as to justify the orders being set aside.

In re-exercising the discretion, and allowing the appeal, the Full Court was of the view that the likely advantages for the child in being allowed to move, particularly, the economic advantages and the happiness of the primary care giver, outweighed the advantages for the child if she was required to stay, the most significant of which was the mere chance of an improvement in the child’s relationship with its father.

Appeal allowed

Costs certificate granted to the appellant wife.

This is the wife's appeal against orders made by Penny J in the Family Court of Western Australia on 1 May 2003 wherein her Honour restrained the wife from removing the parties' child B from the State of Western Australia.

The wife seeks to have the orders set aside so that she may move to Illinios in the United States of America with B and there marry one Mr K.

Background

The parties commenced cohabitation in 1985, married in March 1991 and separated in February 2001. There is one child born of their relationship, namely B who was born on 22 July 1998. Although the parties were divorced in 2002, it is convenient to still refer to them as “the husband” and “the wife”.

The husband had previously been married and has two children from his first marriage, both of whom are now adults. Since the parties separated the husband has commenced a relationship with Ms H. She and her two children aged 12 and 11 live with the husband and have done so since February 2002.

In February 2001 at about the time of separation between the husband and the wife, the wife made contact with Mr K via the Internet. Mr K is a citizen and resident of the United States. The wife travelled to America between 29 May 2001 and 21 June 2001 to spend time with Mr K. During that visit B stayed with her father in Perth.

The wife returned to America taking B with her on 11 September 2001, remaining there until 5 December 2001. During that time she stayed with Mr K. They then announced their engagement to be married.

Mr K came to Australia, remaining here between 27 January and 20 March 2002.

On 16 August 2002 the wife commenced proceedings seeking orders that would have enabled her to travel with B to the United States. She proposed that the husband have contact with B by telephone and if and when either of them were in the location of the other, that is the wife in Australia or the husband in America, there would then be continuous minimum seven days contact during such period. The wife also proposed orders that would keep the husband informed of B's health and educational progress.

The husband opposed the wife's move to the United States. He was self-represented. The basis of his opposition was that a move to the United States would damage an already fragile relationship between father and daughter and would deprive B of the company of her large extended family, both maternal and paternal, who reside in Western Australia. He sought to emphasise the wife's lack of support for the concept of encouraging contact. Finally, he sought to rely upon what the husband perceived as qualitative differences between life in the United States and life in Western Australia. He said:

"The father would request the Honourable Court to consider the fact that the United States of America is and has been for some time on the brink of war with Iraq. The United States of America must be considered the target of choice for many extremist and terrorist groups, the magnitude of September 11 2001 hopefully will never be seen again, there is however no guarantee of that. Recently Perth was adjudged the third best city in the world to live and raise a family behind Melbourne and Ontario Canada. The father is unaware of where Chicago rated…"

The hearing extended over three days on 23 December 2002, 30 January 2003 and 14 February 2003. Mr K gave evidence by video link. His unchallenged evidence was that his employment and education was best secured in the United States and that he did not intend to move to Australia. Such a move would be financially disadvantageous and he could provide a better lifestyle for the wife and B in America. Just as Mr K was not intending to come to Australia, there was no suggestion that [the father] ought to relocate to the United States should the wife and B move there.

The evidence disclosed that the wife was living in rented accommodation and was entirely dependent upon social security benefits of $340 per week, supplemented by child support at the rate of $92 per week.

Mr K gave evidence that as a bricklayer in Illinios he was earning US$1206 per week. In addition he had eligibility to borrow monies from the Department of Veterans Affairs as a result of his war service during the Gulf War. He further indicated that he was studying computer programming and upon graduation hoped to earn between US$80-150,000 per annum.

The husband’s relationship with B

The other matter significantly pertinent to the issues before the trial Judge was the nature of the relationship between the husband and B and the wife's role in either fostering or hampering that relationship.

The trial Judge found that B's relationship with the husband had been problematic. She said:

"…Neither party is able to say why this has been so, but the husband suspects that the wife's attitude has caused the problem…
15…between February 2001 and September 2001 the husband attended at the wife's house and delivered his child support payment once per week. … the husband saw B on those occasions. During this period the only vehicle owned by the husband was a van which was very noisy. B, who was two years eight months when the parties separated, was frightened of the vehicle and would not travel in it and, therefore, the husband was unable to take B away for contact periods...

…
18…On 2 March 2002 the husband had contact with B for the first time overnight. Contact took place between March and May 2002 on six occasions overnight for the weekend. There was no problem with getting B to have contact at the start, but later it became difficult to get her to go. From June 2002 B, who was now almost four, refused to go on contact and the husband had only limited day time contact up until this trial commenced in December 2002. When the husband telephones B she refuses to speak to him. When he attends at the wife's home, she refuses to go with him for contact.
19The wife says that B has become anxious about the wife leaving her and going to America without her. She says the husband has told B this. B is now more settled, but the wife can offer no reason why B will not go on contact. This being the case, I find it extraordinary that she is unable to encourage B to go.
20…The evidence is that B seemed to enjoy herself when she is in the husband's care, although on occasions she has asked to return early to the wife. The wife stated she has encouraged B to tell the husband if she wanted to return early. If the wife is unable to encourage B to have a relationship with the husband in Australia, she is very unlikely to be able to do it in America. It is very unusual for a four year old to insist that she will not go on contact when, the wife herself, acknowledges that there is no real reason for her not to go."

Her Honour's conclusion about the child's poor relationship with her father was:

"21The only reason, in my view, that B does not wish to have a relationship with the husband is that the wife has encouraged her not to develop one….
22The husband's relationship with B is not good but, in my view, this has come about because of the wife's attitude to the husband…."

When the matter proceeded before the trial Judge the husband was formally seeking an order that B reside with him. It became apparent however that the case ultimately focussed on the dispute about whether the child should live with her mother in Western Australia or with her mother in Illinios. The trial Judge, correctly in our view, dismissed the husband's residence claim. There has been no appeal by the husband against that order.

The judgment

After identifying the issues and setting out some of the background her Honour referred to the Full Court decision in A v A; Relocation approach (2000) FLC 93-035 and set out the tests there summarised by the Full Court.

Her Honour then made reference to a passage in U v U (2002) FLC 93-112 where the majority judgment in the High Court said:

"…the court is not, on any view, bound by the proposals of the parties. The court has to look to the matters stated in s 68F and elsewhere in the Family Law Act to come to a decision about the residence of a child and the objective is always to achieve the child's best interest."

Her Honour then examined the evidence under a series of headings that basically followed the relevant sub-headings in s 68F(2).

Section 65E of the Family Law Act provides:

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Section 68F(2) sets out the matters that must be considered when determining what is in the child’s best interests. It provides:

"The court must consider:
(a)any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
(b)the nature of the relationship of the child with each of the child's parents and with other persons;
(c)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person, with whom he or she has been living;

(d)the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(e)the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(i)any family violence involving the child or a member of the child's family;
(j)any family violence order that applies to the child or a member of the child's family;
(k)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l)any other fact or circumstance that the court thinks is relevant.”

Her Honour found that the wife had been B’s primary caregiver. B had a good relationship with Mr K and with the wife's extended family in Perth. As already indicated, she found the relationship between B and her father to be problematic.

Under the heading of "The child's relationship with her parents and other persons" her Honour was critical of the wife's inability to encourage B to go on contact with her father. She found that the wife had attempted to mislead the Court and downplay the real level of contact between the child and her father. The wife had kept a “visitation diary” recording the times when she said the husband came to visit B or B went out with the husband. She did not record in that diary the times when the husband came to the house to pay the child support. On those occasions the husband spent some short time with B.

Her Honour made the following finding:

"the only reason that B does not wish to have a relationship with the husband is that the wife has encouraged her not to develop one."

In the circumstances it is difficult to see how the trial Judge could confidently reach that conclusion. Our experience is that the dynamics underlying human relationships are extremely complicated, and it would be unusual to find a single cause for a troubled relationship between a parent and child. Her Honour did not have the assistance of a welfare report, and thus the complex issues surrounding the ambivalent relationship that the child had with her father had not been explored by any psychologist or social worker. It was not a matter that had been explored in cross-examination. In our view, it would have been necessary to review the history in some detail before reaching such a conclusion. That history included periods when the husband had little contact with the child, and had not sought orders or taken other steps to see more of his daughter, or improve his relationship with her. Although her Honour was entitled to find on the evidence that the wife had encouraged B not to develop a relationship with the husband, and that this was an important factor, in our judgment it was not open to her Honour on the evidence to find that it was the only reason B did not wish to have a relationship with the husband.

Having examined the quality of the relationship that the child had with each of her parents and others, her Honour came to the view that the husband's residence application could not be sustained. She then moved, under the rubric of the balance of the headings under s 68F(2), to consider the relocation application, although those findings were also used to underpin the rejection of the husband’s residence claim.

Under the heading "The likely effect of any change in the child's circumstances, including the likely effect on a child of any separation from either his or her parents", her Honour correctly observed that the move from Perth to America would have a detrimental effect upon B's relationship with her father. Although her Honour found that B would not be able to engage in email contact for some years, that may be under-estimating the capacity of a young child to adapt to modern technology faster than an adult might perceive.

Under the heading "The practical difficulty and expense of a child having contact with a parent", her Honour concluded that telephone contact was unlikely to be encouraged by the wife. The wife's proposals to return to Australia were initially to come back once every three years but were then altered to return every year. Her Honour said (emphasis added):

" While the arrangement whereby the child would see the husband once a year may be an appropriate one if she was to relocate to America, to allow her to go, I would have to be confident that the wife would actually attend in Perth each year with B. As a result of the wife's conduct to date, I do not have that confidence. The wife has not encouraged B's relationship with the husband in the past and is not able to convince her, at four years, to have contact with the husband in Perth. She previously thought contact each three years was appropriate. She does not want the husband interfering in her new life with Mr K. In my view, she will not comply with a contact order for contact in Perth each year when she is out of the jurisdiction, even if the money is provided by way of child support."

In that passage the trial Judge seems to indicate that a pre-condition of the wife's travel would be the creation of satisfactory and trustworthy ongoing contact arrangements. Such an approach would be impermissible unless it represented a conclusion reached after her Honour had evaluated the positives and negatives of each side's case, one against the other, and then reached a conclusion that such an order would be in the child’s best interests. The emphasised passage expresses a conclusion reached by her Honour about the ultimate result in the case: that the relocation would be allowed only if the wife would attend in Perth each year with B. The basis for such a conclusion had not been laid at this point in the judgment, and its expression in this form at this point in the judgment suggests that her Honour might have reached that conclusion without considering all the relevant matters. This would not be a fatal flaw if the judgment read as a whole indicated her Honour did in fact take all the relevant matters into account before making her orders. However for reasons that will appear, unfortunately she did not do so. What her Honour needed to evaluate were the positives and negatives of each side's case, one against the other, and then reach a conclusion as to how the best interests of the child would be advanced in the circumstances treating the child's best interests as the paramount but not the sole consideration. What that required was for the trial Judge to add into the evaluation her findings as to the unlikelihood of the wife keeping to her promises to return annually and to otherwise encourage the child to have some form of telephone and email contact. The likelihood of future compliance could not be set as a pre-condition necessary for the removal of the child but was one of the matters to be evaluated in determining the best outcome for the child. Her Honour seems to express the test as a vital necessary pre-condition to allowing the wife to go.

Her Honour concluded her consideration of the difficulties of contact by noting the husband's financial circumstances were such that it was unlikely that he would be able to travel to America for lengthy periods and meet the costs of so doing. She saw no impediment to ongoing contact should the wife remain in Western Australia.

Her Honour then turned to consider the capacity of each parent or any other person to provide for the needs of the child including the emotional and intellectual needs. Her Honour was critical of the wife's ability to pay proper concern to B's needs to develop a relationship with the husband. She said:

"33.The wife has, in my view, given priority of her relationship with Mr K at the expense of B's relationship with the husband…"

This is a finding that is very critical of the wife’s behaviour. Her Honour does not spell out the reasons for it. Perhaps she had in mind the wife’s decision to spend three weeks in the United States with Mr K, leaving B with the husband. However the was no evidence, and in particular no cross-examination of the wife, to show that this was an unreasonable decision. There is no suggestion that B was at risk with the husband during this period, or that the wife ought to have taken B with her, or that it was unreasonable for her to go to the United States to test and develop her relationship with Mr K. After separation, parents need to move on with their lives. The wife was shown to be a caring loving parent who has effectively had the full time care of B for all of her life. Her pursuit of a new relationship was not in itself inconsistent with her parenting obligations. Like the husband, the wife was entitled to seek some degree of personal happiness.

It is consistent with the evidence that the wife might have taken B’s interests into consideration, and believed that it would be in B’s long term interests to be with her father for a period while the wife visited Mr K and his family in the United States to explore the possibility of a more permanent relationship with him. In the absence of evidence showing that her decision was unreasonable, in our view, the wife’s three month visit to the United States did not warrant her Honour’s finding. Looking at the evidence more generally, although her Honour was entitled to make findings to the effect that the wife had not encouraged the relationship between B and the husband, having regard in particular to the limited cross-examination of the wife we do not think that this highly critical finding we have quoted was reasonably open on the evidence.

Her Honour then expressed criticism of the wife's lack of communication with the husband when the wife and B were in America from 11 September 2001 to 5 December 2001. Her trip coincided precisely with the terrible events that occurred in New York, Washington and Pennsylvania on 11 September 2001. Her Honour noted that the wife did not telephone the husband to tell him that she and B were safe although she also noted that the wife said she thought her mother would do this.

Her Honour was then extremely critical of the fact that the wife actually undertook this second trip to America saying:

"40…Her priority was to go to America to see Mr K. She had no interest in the effect this trip would have on B's relationship with her father. At the time she went to America B was three years and two months. When they returned B did not recognise the husband."

Her Honour was entitled to be critical of aspects of the wife’s conduct in relation to this second trip. On the other hand, other than showing some lack of compassion for the husband’s feelings in failing to keep in touch with him, it is difficult to understand why the wife was criticised for taking the second trip. Ultimately the wife took B with the consent of the husband. The child was in the care of her primary caregiver. There is no suggestion other than that she was given proper care and love during that time. There is no evidence that she in any way suffered emotionally from lack of contact with her father during the trip. If the wife was planning some sort of future together with Mr K it would be seen as an entirely responsible thing for her to spend time with Mr K and to see how B coped with that relationship. The wife would have been open to extreme criticism had she not given B that opportunity.

Her Honour then made a passing reference to the financial situation in America saying:

"41The wife says that in America she will have the assistance of Mr K to provide for her and B's financial needs…Mr K appears genuine in his desire to marry the wife and provide in the future for B."

Her Honour expressed some concerns about the future prospects of the relationship with Mr K based on evidence that Mr K has a son T aged about 11½ who Mr K proposed would be living in his household.

When the husband and wife commenced living together, some eight years earlier in 1985, the husband's 12 year-old son was living in the household. There was a conflict between the wife and the 12 year-old son. When it was put to the wife that she might have similar difficulties with T the wife said that she was now older and would be better able to cope with the care of Mr K's son.

Her Honour said that she had concerns about the wife's capacity to deal with any problems having regard to her previous experiences. She concluded that there were matters, including the fact that the wife and Mr K will have to deal with a blended family, which gave her some reservations about whether in fact the relationship would be a successful one.

Further evidence

There is an application made before us to lead further evidence. That evidence disclosed that Mr K had recently learned that T’s mother had asserted that T was not indeed Mr K's son. DNA testing had shown that this assertion was correct and that T had now returned to live with his mother who was about to move to live in Germany with him. We indicated that we would receive the evidence subject to objection and consider the manner in which we would deal with the evidence in the course of this judgment.

Section 93A(2) of the Family Law Act provides that in an appeal the Full Court has power to receive further evidence upon questions of fact. The admission of further evidence during an appeal under the Family Law Act can take place in two circumstances. The evidence can be introduced for the purposes of the appeal itself to show that the decision below was erroneous, and/or the evidence can be introduced as relevant to be taken into account if the Court is to re-exercise the statutory discretion based on the present circumstances.

In CDJ v VAJ (1998) HCA 67, (1998) 157 ALR 68, (1998) FLC ¶92-828 (1998) 23 Fam LR 755 the High Court allowed an appeal reversing a decision of the Full Court of the Family Court of Australia where the Full Court had allowed further evidence in a residence case on the basis that the further evidence could render the outcome reached at trial as doubtful. The majority of the High Court (McHugh, Gummow and Callinan JJ) in discussing the discretion of the Full Court to admit further evidence pursuant to the provisions of s 93A(2) said:

“114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial."

However, notwithstanding the wide discretion there identified, their Honours went on to say that before admitting the evidence in CDJ v VAJ the Full Court had to be affirmatively satisfied of two things (emphasis added).

“149. …The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
150. In some exceptional cases, those concerned with allegations of physical or psychological abuse of a child are an example, it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal. However, assuming such cases are an exception to the general rule, they are quite different from cases where there is merely a difference of opinion as to whether the child's best interests require him or her to be in the care of one parent rather than the other.
151. Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.”

The second stage consideration of the admission of fresh evidence was discussed by the High Court in Allesch v Maunz [2000] HCA 40 ;(2000) FLC 93-033 where in their majority judgment Gaudron, McHugh, Gummow and Hayne JJ said:

“31. If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances …”

For reasons that will appear, we have concluded that her Honour’s judgment contained error in the appellate sense, and that we should ourselves re-exercise the discretion, rather than order a retrial. In those circumstances we think it is appropriate to admit the further evidence in respect of the second basis, namely the Allesch and Maunz basis albeit that it seems to fit squarely within the discussion by the High Court in CDJ v VAJ at para 114. The evidence is non-controversial in the sense that it is not contradicted. It relates to an event that has occurred since the trial.

It is difficult to see, however, how the evidence would fit comfortably within the second part of CDJ v VAJ, namely that it would have ultimately made any difference to the outcome before the trial Judge. It seems to be something that the trial Judge identified as giving her concern but we would not feel confident in saying that if that concern was not present the result would have been any different at first instance.

Whilst it seems to us that the concern expressed by the trial Judge was entirely speculative and that it seems to take up a disproportionate amount of her Honour's reasons for judgment, as already said we could not be satisfied that the absence of the T factor would have made any different to the outcome in the proceedings. If and when we come to re-exercise the discretion we shall proceed on the basis that the issues relating to T no longer form part of the matters capable of being relied upon by the husband as demonstrating why it is contrary to B's best interest that she be allowed to travel to America with her mother.

The judgment continued

The trial Judge had effectively dismissed the husband's application for residency early in her judgment, when she wrote in paragraph 22, under the heading "'The child's relationship with her parents and other person":

"Given the present poor relationship the husband has with B and the fact that she has a very close relationship with the wife, I do not believe it would be in B's best interests at this time for there to be an order that she resides with the husband, unless there were compelling circumstances which suggest a change of residency was necessary."

We therefore have some difficulty in understanding her Honour’s finding under the heading "Husband's capacity" at paragraph 47 where she said:

"Should the wife reside in Perth or America, she does not intend to work in the short term, and will care for B on a full time basis. The wife's proposal that B be cared for by a parent is preferable [to the husband’s proposal that his partner care for B] as long as I can be satisfied that B's relationship with the husband can be maintained."

The reference to the importance of maintaining the husband’s relationship with B seems to be out of context. There is nothing in any of her Honour’s findings that would have made it appropriate to have B removed from the wife’s care if the relationship with the husband remained problematic. There was nothing in the evidence that suggested that B would be better off in the husband’s household being cared for by Ms H in the event that the relationship between B and the husband could not be maintained. Whilst the remarks of her Honour are not ultimately decisive, nonetheless they are perhaps indicative of the undue weight that her Honour seemed to place on ensuring that the husband’s relationship with B was given every opportunity to flourish even if it severely curtailed the wife’s choices in her own life.

The next matter dealt with by her Honour was dealt with under the heading "The need to protect the child from physical or psychological harm". Those are in fact only the introductory words to s 68F(2)(g) which in full reads:

"(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person."

Her Honour's conclusion was that B

“….will be exposed to psychological harm if she is allowed to relocate to America. As stated previously, I do not accept that the wife will encourage B to have a relationship with the husband. She is not doing that now. There is a chance in Perth, however, for that relationship to improve. There is no chance of that occurring if the wife moves to America with B.”

In our view it would have been preferable for her Honour to simply say that this paragraph was inapplicable. It is probable that her Honour did not use the phrase “psychological harm” to mean anything more than disadvantageous to her psychological development. If so, it was unnecessary to link this finding to paragraph (g), which is essentially about the protection of children from harm caused by abuse, ill-treatment and similar behaviour. Of course it was open to her Honour to find that it would be a disadvantage for B’s relationship with her father to be reduced, and to regard this as an important matter. However it was necessary to consider all the relevant matters, and dealing with it under other headings would have prevented any suggestion that this was a case involving abuse or ill-treatment.

We think it is open to a trial judge to make an observation absent a counselling report that the nature of a relationship between a parent and child is likely to be detrimentally affected through the tyranny of distance. To the extent that it is important for a child to have an ongoing relationship with both of its parents it can be properly said that, in the absence of expert evidence, the child would be exposed to psychological harm. It is not to be seen in those circumstances as a term of art or a diagnosis, but merely as a reflection that it is better for the child, where possible, to have a relationship with both parents. We read no more into her Honour's remarks than that. However, at the same time it is important to note that this case is significantly different from the outcome in U v U in having regard to the evidence that was available in that case. In U v U the decision by the trial judge to refuse to allow a mother to return to India with her child was upheld by the Full Court and the majority of the High Court. The trial judge had the benefit of a counsellor's report in that case that indicated that the child always had a very good relationship with her father and that the move to India would consequently affect the development of that relationship. The counsellor said that, “for this child, frequent contact is most suitable." No such evidence was presented to Penny J.

In expressing her conclusions about the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents her Honour said the wife had in all regards been a responsible parent, save for failing to acknowledge the significance of the husband's relationship with B. The husband had met his child support obligations and was keen to pay a greater role in B's life than he had earlier.

Before expressing her conclusion, Penny J made findings on whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. Her Honour repeated that she would have no confidence in the wife complying with any orders for contact in America. If she remained in Perth enforcement of the orders by the husband would be easier. Counsellors or independent supervisors could be used to help re-establish the husband's relationship with B, if required.

Penny J’s conclusion

“54In my view, the best interests of B will be promoted by her residing with the wife in Perth. Although the wife has not encouraged B’s relationship with the husband, I do not believe that B should be placed in the care of the husband, of whom she appears to be fearful, and taken from a settled and happy environment with the wife. I am satisfied orders can be made to establish B’s relationship with the husband again in Perth with the assistance of counsellors or supervised contact, if necessary. I am not prepared to allow B to relocate with the wife to America. While I have reservations about whether the wife's relationship with Mr K would succeed, I accept they are both very genuine in their desire to be together. I accept that Mr K would be an appropriate person to share B’s care. In restraining the wife from going to America I realise that she may be forced to abandon her relationship with Mr K. I would not do this if I thought that there were contact orders which could be put in place which would foster the husband's relationship with B while she resided in America. I do not think this is possible for the following reasons:

·    The wife has no respect, as I have mentioned on numerous occasions during this judgment, for the husband's role as the father of B.
·    She has not encouraged B to have contact with the father. Her comment in her affidavit saying that she would not 'prevent' B telephoning the husband when she resided in America did not give me any hope that she would encourage the child's relationship with the father.
·    Her original proposal that B should have physical contact with the husband once each three years reinforces my view that she does not intend the husband to take any real role in B’s life in the future.”

It seems clear that the dominant, if not the only factor that swayed her Honour was the unlikelihood of B maintaining any relationship with the husband should she go to America. There is little if any discussion of the positive benefits for B in making the move.

The appeal

Whilst the grounds of appeal sought to challenge the accuracy of many of her Honour’s findings, we think it sufficient for our purposes to deal only with those grounds that assert the learned trial Judge’s failure to properly consider the wife's relocation proposals and thus adequately weigh up the competing proposals.

The relevant principles

“…'relocation cases" present difficult questions…" Hayne J in U v U (below) at par 170.

The principles applicable to relocation cases have been the subject of extensive discussion in a number of recent decisions of the High Court and of this Court. See U v U (2002) 211 CLR 238, (2002) FLC 93-112, (2002) 29 Fam LR 74; AMS v AIF (1999) 199 CLR 160, (1999) FLC 92-852, (1999) 24 Fam LR 756,B and B; Family Law Reform Act 1995 (1997) FLC 92-755; 21 Fam LR 676; A v A: Relocation approach (2000) FLC 93-035; (2000) 26 Fam LR; ; D v SV (2003) FLC 93-137, (2003) 30 Fam LR 91 382.

Her Honour sufficiently summarised those principles, referring to two of the leading authorities, in paragraphs 9 and 10 of her judgment. This appeal essentially involves the application of those principles rather than any re-examination of them.

For present purposes it is sufficient to say that in the light of the legislation and the authorities above it is necessary for a trial Judge to evaluate each of the proposals advanced by the parties and such evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

The task that was required emerged clearly from the discussion at the time the parties made their final submissions. The husband made brief submissions. He submitted, in essence, that the quality of life in Perth was better than in America, and said there would be no benefits for B in the United States. The transcript then reads (emphasis added):

"MR T: …B stands to lose not only the contact with her extended family but with myself. [The wife’s] attitude over the last couple of years leads to belief (sic) that should B relocate to the United States I would quite possibly never see her again….
There will be no father, and I do not wish to detract from Mr K at all. From his cross-examination he seems to be a very genuine man, but he is not B’s father. As I said, your Honour, I just do not see any benefits in B relocating to the United States. Thank you.
HER HONOUR: I suppose the case is, really, that the mother is the custodian. She will be happier there, therefore things will be better for B because of that. That’s basically what the case is about, I guess.
MR T: If her mother were to be happy in America, then the benefit would flow on to B, yes.
HER HONOUR: But there’s that side of it balanced against the fact that having a relationship with you would be very difficult. They’re the two things that in my mind are the important things for me to balance."

After some further brief comments the husband concluded his submissions. There was the following exchange:

"HER HONOUR: Yes, Mr Stephenson? Have I picked what the issues are?
Mr Stevenson: Yes. But in so doing, if I may say so, you’ve overlooked one important aspect of this case…"

Mr Stevenson went on to refer to the husband’s application for what he called custody. However his “Yes”, combined with the rest of his submissions, indicated that he agreed with the balancing task her Honour had identified.

Error identified

Unfortunately, in the judgment her Honour failed to carry out this task. Our reading of the approach taken by her Honour was that she highlighted repetitively the reasons that militated against allowing the move, namely that contact between B and her father would effectively cease for the foreseeable future given both the tyranny of distance and the wife’s lack of enthusiasm in encouraging contact. Nowhere does her Honour weigh up these disadvantages with the positive benefits that might flow from the proposed move, nor does her Honour appear to pay any regard for the wife’s right to get on with her life as best she sees fit.

In our view that failure is of such a fundamental significance that the orders made cannot stand, unless we, as an independent exercise of our own discretion, reach the same outcome, albeit by a different route.

Re-exercise of discretion

Each party has invited us to exercise discretion rather than remit the matter for a rehearing. The only further evidence from the wife was that relating to the disappearance of T out of Mr K’s household. The only further evidence that the husband sought to draw to our attention was that there had been ongoing difficulties with contact on two recent weekends. He asserted that these difficulties emphasised the correctness of Penny J’s findings that the wife was not likely to actively encourage contact. Whilst noting the husband’s allegations, which were made from the bar table without objection, we thought it inappropriate and unnecessary to conduct a hearing on the merits of the husband’s complaints. It is sufficient that we note his assertion that there are ongoing difficulties. It may however not be advantageous to his case that such difficulties exist.

The positive evidence about the relocation

As we have said, her Honour’s error was her failure to identify the positive aspects of the proposed relocation, weigh them up with the negative aspects, notably the important matter of its effect on the child’s relationship with the husband. The authorities emphasise that in cases such as the present it is essential to give careful consideration to the benefit to the child from the flow on effect that is inherent in the happiness of her primary caregiver and the potential economic advantages of living in a household not dependent upon social welfare as the principal source of income.

In its exhaustive analysis of the considerations that might properly effect the outcome of a relocation case the Full Court in B and B; Family Law Reform Act 1995 said (emphasis added):

"9.66 The interests of the children may be affected by proposed relocation in two broad ways. Firstly, the relocation may be of benefit not only to the parent but also to the children in a direct way. That is, the lifestyle of that family unit and those children may be enhanced by the move. Secondly, in some cases the inability of the residence parent to relocate will impose significant pressures upon that parent and diminish his or her capacity to cope and so diminish the quality of the lifestyle in that home. A very important aspect of a child's bests interests is to live in a happy family environment. That may be significantly impacted upon where the residence parent is required to live in circumstances which diminish his or her future life either in an economic or a social sense, perhaps in a long-term way. If that had an adverse impact upon the children's best interests, that may be an important matter to consider. Similarly, the prospect that the lifestyle of members of that family will be enhanced by the move is a positive factor to be considered as part of an assessment of the children's best interests.
9.67 Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household. Similarly, where the parent is able to live a more fulfilling life this may reflect in a positive way on the children. However, the ultimate determinant is the best interests of the children; the wishes and desires of the parent per se give way to that."

What is the evidence about the positive aspects in this case? The wife’s affidavit provided limited direct evidence about B’s relationship with herself and Mr K, or her behaviour or experiences while with them. Again, there was very little detail about these aspects of the wife’s proposed relocation. For example, she did not discuss how she would feel if she were unable to relocate with B to America, or how her feelings or experiences might affect her parenting.

Similarly, the wife’s affidavit dealt with her visit with B to America for nearly three months in late 2001. This was presumably a time when Mr K had an opportunity to get to know B. However there was not a word about this in the affidavit. We do not know from the wife’s affidavit whether he cared for B, went out for walks with her, played with her, or ignored her. Nor did the wife provide any significant information about the quality of her relationship with Mr K. The wife was not challenged about her lack of evidence about these matters at the trial. Indeed, there was essentially no cross-examination or argument about what positive consequences might flow from the wife’s proposed relocation.

Nevertheless, these omissions from the wife’s own evidence are to some extent remedied by evidence from her witnesses. Mr K said that he has a “close” family, about whom he provided details. And he wrote in relation to the visit by the wife and B in late 2001:

"This was the first time I had met B and she was very happy to meet me. I have spoken to B on the telephone before and she gave me a big hug and kiss when I first met her. Throughout [the wife] and B’s stay, B followed me wherever I went, copied everything I did. B enjoys being around my family and again we made [the wife] and B as welcome as possible”.

In our view, this evidence is of real importance. It indicates that Mr K felt affectionately towards B. It shows that the way B was prepared for the visit meant that she had positive expectations about Mr K (to whom she had spoken on the phone). In general, the paragraph strongly suggests that there was an affectionate and to some extent at least child-focussed relationship among the wife, Mr K, and members of Mr K’s family.

Some other evidence by Mr K, though brief, reinforces these inferences. In relation to Mr K’s visit to Australia in early 2002, he wrote:

"I met [the wife’s] family and friends and saw many tourist spots during my stay."

Mr K also wrote:

"I am very excited by the prospect of [the wife] and B coming to live with me and cannot wait for them to be in America."

The wife’s mother, Mrs T, also wrote that while she initially had concerns about her daughter’s relationship with Mr K, once she had met him and learned more about his life and background she “was comfortable with the relationship”. She spoke of having met Mr K in Australia at family gatherings, and wrote:

"[Mr K] seems to be a genuine man and he treats [the wife] and B very well. [Mr K] would play and interact with B and she responded to him very positively. B seems very happy around [Mr K] and whenever I saw the family B would not leave [Mr K] alone."

In relation to the proposed relocation, Mrs T wrote:

"22. If this is what makes [the wife] and B happy then I am totally supportive of her decision. I will miss both [the wife] and B terribly but accept [the wife’s] decision. The happiness of B and [the wife] is of upmost (sic) importance to me. [The wife] and B will both benefit from the experience of living in America through meeting new people, undertaking new things and experiencing new adventures."

None of this material was challenged.

Next, there was equally unchallenged evidence of financial benefits that would be associated with a relocation. Mr K’s promises of financial support offered the wife a real opportunity to break away from a cycle of dependency of social welfare and to move out of the poverty that that entails.

In considering the benefits to B of the proposed relocation, we take these matters into account. We also take into account B’s age, and the fact that the wife has always been the primary caregiver (except for the three months period when the wife was in America and B was with the husband). We take into account that the wife’s willingness to remain in Australia, at the cost of her relationship with Mr K if she cannot take B to live in America speaks volumes for her commitment to B’s welfare.

The whole of the evidence, and particularly the matters we have mentioned, lead us to the conclusion that the proposed relocation would have significants benefits to the wife, and that these would be very likely to flow on to benefit B.

The negative consequences of the proposed relocation

The disadvantages are the loss of an opportunity of developing as meaningful a relationship with her father and grandparents as she might otherwise develop if she could see them on a regular basis. These disadvantages, which should not be understated, can however be somewhat alleviated through the medium of modern technology.

The cost of telephone calls between Australia and the United States has dropped dramatically over the past few years. In many cases it is now cheaper to phone a landline in America than it is to phone a mobile in Australia. The Internet offers the opportunity for webcam and email communication at negligible expense. Whilst we can empathise with the husband’s sentiments when he said in evidence that he did ”not fancy hugging a monitor” (transcript p 95) we do not necessarily agree with his subsequent observation that telephone contact and email contact is “only slightly better than useless”.

The technological advances of the past decade have been remarkable. The communications revolution has created the capacity for cheap instantaneous worldwide video and sound linkages. Of course they are no substitute for the joy of holding hands or hugging or cuddling or simply being together, but they do offer opportunities for developing and continuing relationships that were virtually impossible as recently as 10 years ago.

Despite the concerns of the husband about the quality of life in Illinois, the differences in climate and the potential criminal and terrorist risks, these matters did not seem to be of concern to the trial Judge nor are they of concern to us. There is no evidence to suggest that B would be seriously disadvantaged by a change in climate. There is no evidence that people living in Illinois face such an increased risk of being the victim of crime or terrorism that a proposed move there from Perth would be somehow contra-indicated. If the move was to a country in a war zone or beset by famine or serious contagious disease then those items would need to be factored into the balance when determining what was best for B. Fortunately those are not matters that need to be considered in this case. While we can understand the husband’s views, there is no cogent evidence to support this argument and it overlooks the importance of differences between the particular family and other circumstances in which B would be living, depending on whether the relocation were allowed or not allowed.

We have not overlooked that the husband also relied on the negative impact of the relocation on B’s relationships with his extended family. However there was no significant evidence of any existing strong attachments to members of the husband’s family. While the possibility of such a relationship being a positive thing for B in the future is a relevant matter, there is so little evidence that it is largely a matter of conjecture, and we therefore do not think it should be given significant weight.

Whilst the proposed move will certainly diminish B’s opportunities to spend time with her extended family in Western Australia, it should be noted that the maternal grandparents, who have been the main members of her extended family who have provided care for B, fully support the wife’s move.

We agree with her Honour that the major negative factor issue for the proposed relocation is its impact of the relocation on B’s relationship with the husband. As emerged in the submissions at the trial, balancing this factor against the benefits of the relocation is at the heart of this case. It is a difficult assessment.

In considering what weight to attach to this important factor, it is necessary to consider the quality of the relationship at the present time and what it might be in the future. In this case it is of significance that the relationship between B and her father is problematic. This is in marked contrast to the evidence in U v U that the relationship that existed between father and daughter was very close and that the absence of regular contact would have a serious detrimental effect upon the child. In this case there is a marked lack of evidence as to the likely effect upon B if she has limited or no opportunities to see her father over the next few years. Penny J recognised that, at best, the development of a satisfactory and beneficial relationship was no more than a possibility if B remained in Australia.

In the context of considering the husband’s residence application her Honour said that B “has had little contact with the husband in the last six months and appears to be fearful of him” (paragraph 24).

What appeared to weigh heavily with her Honour was evidently the following:

"53If the wife remained in Perth, she may not comply with contact orders, but enforcement of the orders by the husband would be easier. Counsellors or independent supervisors could be used to help re-establish the husband's relationship with B, if required."

While we do not disagree with this, there was no evidence to show that the relationship would be likely to improve with such help, or evidence about the willingness or ability of either parent to work constructively with the relevant professionals. In our view the evidence does not justify any confidence about the restoration of a good relationship between the husband and B if B were required to remain in Australia. Thus this case is not so much about a relocation ending or compromising a good relationship between a child and a parent as it is about a relocation which might undermine the “chance” for that relationship to improve (her Honour’s language in paragraph 49), or be re-established (paragraph 53, above). The observations of the Full Court (Nicholson CJ, Kay and Brown JJ) in Z v W [2003] FamCA 126 seem most apposite:

“69. In this case, the trial Judge concluded that the welfare of the children would best be served if restrictions were placed on the mother which at least created the opportunity for a relationship to develop between the children and their father…It seems to pay little, if any, regard to the right of the unchallenged resident parent to live her life, at least within Australia, as she wishes. The price to be paid for the off chance of a relationship developing between the children and their father in the circumstances of this case seems a very heavy one indeed.”

The evidence suggests that there might be considerable difficulty in re-establishing a good relationship between the husband and B. The first element is the wife’s attitude, the subject of strong findings by her Honour, for which there was a sound basis in the evidence.

The second element is the history of fairly limited contact between the husband and B. After the parties had separated, in February 2001, the husband saw B when he delivered his child support payments. There is very little evidence from either parent about what interaction there was between father and child on these occasions. At best he interacted with her briefly, in circumstances where the parties were uncomfortable with each other.

B stayed with the husband for three weeks (from 29 May 2001 to 21 June 2001) when the wife was first in the USA and her Honour says that there appeared to be no problems with his relationship with B at that time. Contact stopped on 11 September 2001, when the wife took B to America for three months. After this trip, B had overnight contact with the husband for the first time on 2 March 2002, there being six overnight weekend contacts until May 2002. However it became more difficult to get B to go, and from June 2002 B (then aged 4) refused to go on contact. The husband had only limited day-time contact up to the trial in December 2002. Her Honour found:

“When he telephones B she refuses to speak to him. When he attends at the wife’s home, she refuses to go with him for contact.”

We do not wish to be unnecessarily critical of either parent, and indeed criticism is not the point. The evidence does not allow us to be confident that the relationship between the husband and the child would necessarily improve if the wife and the child were to remain in Perth.

Conclusion

This is not an easy case to decide. It highlights the “tug of love” that relocation cases bring into sharp focus. Each party has a valid claim to the position they adopt. Each outcome is exquisitely unfair to the person who does not receive the result they contend for. Ultimately we must chose between two unpalatable alternatives focussing on B’s welfare as our paramount concern.

Reviewing all the evidence, the positive benefits to B deriving from the proposed relocation are clear and well established. Against that, while it is definitely a negative factor that the relocation would make the restoration of B’s relationship with the husband more difficult, for the reasons we have given we are not confident that the relationship would be likely to be restored even if the wife and B were required to remain in Perth.

In all of the circumstances we are of the view that the likely positive advantages for B in being allowed to move to Illinois, and the disadvantages in not being allowed to travel, outweigh the advantages to her in being required to stay in Western Australia and the disadvantages that would flow if she moved.

The wife has made a number of suggestions as to appropriate orders that might be made to secure ongoing contact. The husband’s position was that the wife was unlikely to comply with any orders once she left the jurisdiction. He put forward no precise submissions as to what orders would be appropriate, but understandably asked that his contact opportunities be maximised.

The orders sought by the wife in her amended Notice of Appeal were:

"1.The wife have the sole responsibility for the decisions concerning the long-term and day-to-day care, welfare and development of the child of the marriage being B born July 1998 ("B").
2.Subject to compliance with Order 12 hereof, the wife be permitted to relocate with B to Illinois in the United States of America.
3.The wife give the husband 4 weeks notice as to when she is relocating and the address to which she is relocating with the child.
4.The husband have reasonable contact with B as agreed between the parties but defined to include:
4.1in the event of the wife returning to Australia for any period of time the wife do provide the husband three month's prior written notice of her intention to return to Australia and the length of the stay. The husband do have a minimum of 7 days contact with B during that stay or such other amount as the parties shall agree;
4.2in the event of the husband visiting the United States of America for any period of time the husband provide the wife one month's prior written notice of his intention to visit and the husband be entitled to a minium of 7 days contact with B whilst the husband is in the United States of America or such other amount as the parties shall agree;
4.3the husband have reasonable telephone contact with B, with the calls to be made alternately by the husband and the wife in alternate weeks, and, B otherwise be permitted to communicate with the husband by telephone, correspondence, email (if practicable), or, computer video link at any reasonable time; and
4.4such further contact as the parties may agree.

5.The husband and the wife shall each inform the other of any hospitalisation, significant injury or health problems suffered by B and treatment received as soon as practicable whilst B is in the respective care of the husband and the wife.
6.The husband and the wife each notify the other in writing as soon as practicable of any change of residential address, contact telephone number or email address.
7.The wife take all necessary steps to ensure that the husband receives a copy of information regarding the progress of B in her education and other activities, including, without limiting the foregoing, B's school reports and projects.
8.The husband and wife shall within 21 days of this order establish a bank account in their joint names into which the husband shall pay the amount levied against him for child support for B until there is a sufficient sum to pay the costs of an airfare for the wife and B to travel to and from Australia.
9.The wife shall acknowledge to the Child Support Agency her receipt of all money into the bank account referred to in Order 8 as a receipt of child support.
10.Upon the bank account containing sufficient funds the husband and wife shall, at a mutually convenient time, use the money to purchase tickets for the wife and B to travel to and from Australia.
11.The parties have liberty to apply to the Court in the event that there is any disagreement between them in relation to the use of the money deposited in the bank account.
12.The parties do all such things and sign all such documents as might be reasonably required to register these orders in an appropriate Court in Illinois in the United States of America so that they are enforceable by the husband in that jurisdiction."

Whilst we can understand the utility of an order for sole parental responsibility, we see no strong reason for departing from the legislated situation set out in s 61C(1) that each of B’s parents has such responsibility until she turns 18. Apart from the issue in these proceedings, there have been no other matters in conflict between the parties that would indicate it would be appropriate to further diminish the status of the husband in B’s life. Hopefully there will be significant periods when B is in her father’s care. There may well be a need on those occasions for him to formally exercise his parental powers.

In their present form, proposed orders 8 and 10 would make the wife’s obligation to travel to Australia with B dependent upon the amount of funds available in the child support suspense account. Whilst it is reasonable for the wife to indicate that she would agree to child support being utilised to help alleviate the travel costs burden, we do not understand that the proposal put to the trial Judge that she would return annually was dependent upon her receiving adequate child support to enable her to travel. She deposed in her affidavit filed 29 January 2003 that:

"4.I now propose that B fly to Perth once a year, accompanied by me, for, amongst other things contact with [the father], and, with my extended family. This will only be possible if a significant amount of the child support [the father] is obliged to pay me pursuant to the assessment by the Child Support Agency is put in a joint bank account and accessed for the purpose of allowing this contact between B and [the father].

…
12.The estimated cost for me to fly from Los Angeles to Perth is $2,100.00 to $3,400.00 Australian dollars. The estimated cost for me to travel from Illinois to Los Angeles is $200.00 Australian dollars. The total cost for me is about $2,300.00 to $3,600.00.
13.The cost for B to fly, as a child is 75% of the cost of an adult fair (sic). I estimate the cost for B would be between $1,725.00 to $2,550.00 Australian dollars. Annexed marked "DH2" is a true and correct copy of the prices listed on the website of travel company Best Flights for flights from Perth to Los Angeles. While I have only booked flights from Perth to Los Angeles my understanding is flights from Los Angeles to Perth cost a similar amount.
14.If the amount for the estimated cost of travel were placed in a special bank account operated by [the father] and I, with those funds to be drawn only for the purpose of B and I flying to Perth, pursuant to a Court Order I believe that we could bring B to Perth once a year.
15.I would be willing to give [the father] three months notice before B was due to arrive to allow him to make any necessary arrangements such as leave from work. I would also try and ensure that the visit to Perth was during a school holiday period.
16.The longest American school holiday is between June to September and this would be the time of year I would prefer coming to Australia."

We intend to modify the wife’s proposed orders by requiring her to return B to Western Australia for at least a three week period on no less then an annual basis unless the parties otherwise agree. During that time the husband is to have at least seven days continuous contact with B and at least a further two days contact during each other week.

We futher intend to modify the wife’s proposals to require her to positively encourage email and other electronic forms of communication.

Costs

At the conclusion of the hearing we invited submissions on costs. Counsel for the appellant made an application for a costs certificate in the event the appeal was allowed. We think it appropriate that such a certificate be granted.

Orders

1. The appeal be allowed.

2. That Order 4 of the orders made by Penny J on 24 April 2003 be set aside.

3. That Orders 5, 6 and 7 of the orders of Penny J made 24 April 2003 operate until the child B is removed from Western Australia.

4. Subject to compliance with Order 9 hereof, the wife be permitted to relocate with B to Illinois in the United States of America.

5. The wife give the husband four weeks notice in writing as to when she is relocating and the address to which she is relocating with the child.

6. Upon the wife relocating B to America the husband have reasonable contact with B as agreed between the parties but defined to include:

6.1 Contact on an annual basis in Australia during each calendar year in the event of the wife returning to Australia for any period of time the wife do provide the husband three month's prior written notice of her intention to return to Australia and the length of the stay. The husband do have a minimum of seven days contact with B during that stay or such other amount as the parties shall agree;

6.2 In the event of the husband visiting the United States of America for any period of time the husband provide the wife one month's prior written notice of his intention to visit and the husband be entitled to a minium of seven days continuous contact with B whilst the husband is in the United States of America or such other amount as the parties shall agree;

6.3 The husband have reasonable telephone contact with B, with the calls to be made alternately by the husband and the wife in alternate weeks, and, B otherwise be permitted and encouraged to communicate with the husband by telephone, correspondence, email or, computer video link at any reasonable time; and

6.4 such further contact as the parties may agree.

7.The husband and wife shall within 21 days of this order establish a bank account in their joint names into which the husband shall pay the amount levied against him for child support for B. The Court notes the wife’s agreement that she will acknowledge her receipt of all money into such bank account as a receipt of child support.
8.The wife shall apply the money accumulated from time to time towards the purchase of tickets for the wife and B to travel to and from Australia.
9.The parties do all such things and sign all such documents as might be reasonably required to register these orders in an appropriate Court in Illinois in the United States of America, or to have that Court make orders of an identical nature, so that they are enforceable by the husband in that jurisdiction. In the event that the wife is unable to register or obtain any orders until B is within the State of Illinois, then the wife shall take all steps necessary to obtain appropriate registration or the creation of like orders within 14 days of her arrival in Illinios. The wife is to keep the husband informed at all times of the steps she has taken to comply with her obligations under this paragraph.
10.The Court grants to the appellant a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

I certify that the preceding
104 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate