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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: H & T [2004] FamCA 200
Case: [2004] FamCA 200
Decision Date: 26 March 2004

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the husband against orders made by a single judge permitting the wife to relocate with the child, B, to America. The dispute concerned the best interests of the child, B, in the context of a proposed international relocation.

The primary legal issues before the Full Court were whether the trial judge had erred in her assessment of the likely effect of the relocation on B's relationship with her father, and whether she had correctly applied the principles for determining the best interests of the child, particularly in relation to practical difficulties and expenses of contact, and the wife's proposed arrangements for maintaining contact.

The Full Court found that the trial judge had not adequately evaluated all relevant matters when making her orders. Specifically, the trial judge appeared to have treated the wife's commitment to annual visits to Perth as a pre-condition for relocation, rather than as one factor to be weighed in the overall assessment of B's best interests. The Full Court noted that the trial judge had not sufficiently considered the likelihood of the wife complying with her promises regarding contact, nor had she fully assessed the potential for telephone and email contact, underestimating the capacity of a young child to adapt to technology. The trial judge's conclusion that relocation would be permitted only if the wife attended in Perth each year was considered an impermissible approach unless it followed a comprehensive evaluation of all positive and negative aspects of each party's case.

The Full Court allowed the appeal, setting aside the orders of the trial judge and remitting the matter for redetermination.

Orders

Orders of the court

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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

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): 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.