HAMSTRA & REWI

[2020] FCCA 3108

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMSTRA & REWI [2020] FCCA 3108

Catchwords:
FAMILY LAW – Application by mother to relocate to the United States with daughter aged six years – mother always the primary carer – father re-partnered and living in New Zealand – father spending limited time with child since relocating to New Zealand – father opposing relocation to the United States – mother re-married to U.S citizen and having job offer of a lifetime in City A – Independent Children’s Lawyer supporting relocation – mother’s application clearly in best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 106A

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MS HAMSTRA

Respondent: MR REWI

File Number: DGC 784 of 2020

Judgment of: Judge Burchardt

Hearing date: 25 September 2020

Date of Last Submission: 25 September 2020

Delivered at: Dandenong

Delivered on: 20 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Sayer Jones

Counsel for the Respondent: Self-Represented

Solicitors for the Respondent: Not Applicable

Counsel for the Independent Children's Lawyer: Ms Elleray

Solicitors for the Independent Children's Lawyer: Cape Kearns Lawyers

ORDERS

1. That all previous parenting orders be discharged.

2. That, unless otherwise specified herein, the Mother have sole parental responsibility for the child X born 2014 (“the child”) and following the consultation with the Father outlined in paragraph 3 herein, she be at liberty to make decisions solely relating to the following:

   (a)health or medical issues;

   (b)education or schooling issues;

   (c)the issue or renewal of an Australian passport for the child notwithstanding the Father’s consent has not been obtained;

   (d)any other matters relating to the child’s general long-term care, welfare and development.

3. That for the purpose of paragraph 2 herein:

   (a)Save for the event of an emergency, the Mother shall contact the Father in writing by e-mail, not less than 14 days prior to making any major long-term decision concerning the child, with such communication to set out in detail the issue at hand and her proposal; then

   (b)Within 7 days of receipt of the Mother’s written communication, the Father shall respond in writing by e-mail, setting out his agreement or alternate position and proposal relating to the issue; then

   (c)Within 7 days of receiving the Father’s response, if any, the Mother will advise the Father in writing by e-mail, of the decision with respect to the issue at hand.

4. That upon issue or renewal of the child’s Australian passport, such passport will remain in the Mother’s possession at all times, unless otherwise agreed in writing between the parents.

5. That the Mother be permitted to relocate with the child to City A, United States of America, in or after April 2021, upon condition of the following:

   (a)travel advice to the United States of America, as issued by the government of the Commonwealth of Australia through their website is no longer “Level 4 Do Not Travel”; and

   (b)the ban on Australian permanent residents or citizens travelling internationally is lifted or a relevant exemption is obtained for the Mother and child to travel to the USA through the Department of Home Affairs, Australia; and

   (c)no later than 28 days prior to the date of intended departure, the Mother provides to the Father, in writing by e-mail, a copy of the relevant travel itinerary, telephone contact details and address for where she and the child will be living.

6. That the child live with the Mother.

7. That upon the Mother and child’s relocation to the USA, the child spend time and communicate with the Father as follows:

   (a)in New Zealand;

   (i)each year for a period of 4 weeks during the child’s long American summer holidays, between approximately 20 June to 15 August;

   (ii)each year for a period of 2 weeks during the child’s American Spring/Easter holidays, between approximately 29 March to 12 April;

   (iii)each alternate year for the Christmas/New Year period commencing 2021, for at least 10 days, including Christmas day, on dates to be agreed between the parents, provided this does not coincide with the child’s conclusion or commencement of the school term period;

   (iv)at such other times as may be agreed between the parents in writing.

   (b)in Australia, at such times as may be agreed between the parents in writing, when the child may be in Australia;

   (c)in City A, USA when the Father has chosen to travel there;

   (i)on the child’s birthday at such times as may be agreed between the parents;

   (ii)at such other times as may be agreed between the parents in writing.

   (d)by FaceTime, Skype or other audio-visual means, once per week at days and times as may be agreed between the parents, but in default of agreement, then each Sunday at 2pm NZDT (Saturday 7pm PDT), and for such purpose, the Mother will initiate the call and ensure that the child has her own Skype or FaceTime (or other audio-visual) application enabled;

   (e)on the child’s birthday by FaceTime, Skype or other audio-visual means at 7pm PDT (2pm NZDT the following day), with the Father to initiate the call;

   (f)at such other times as may be agreed between the parents in writing.

8. That for the purpose of 7(a) herein:

   (a)the Mother shall be responsible for all costs associated with the child’s travel to and from New Zealand, including airfares and transfers to and from the Father’s residence;

   (b)the Mother, or such other person agreed between the parents in writing, shall accompany the child during her travel to and from New Zealand until the child turns 16 years of age or the parents agree in writing, that she is able to travel as an unaccompanied minor.

9. In the event the Father intends to travel to the USA to spend time with the child:

   (a)the Father shall, no later than 28 days prior to the date of intended departure, provide to the Mother, in writing by e-mail, a copy of the relevant travel itinerary, telephone contact details and address for where he will be staying during that period;

   (b)the Father shall be responsible for all costs associated with his travel, including all airfares and accommodation;

   (c)the Mother shall facilitate the child’s travel to and from the Father’s temporary residence in City A, USA, for any time agreed in writing between the Father and the child.

10. In the event the Mother intends to travel to Australia with the child:

    (a)the Mother shall advise the Father, in writing by e-mail, of her travel dates no later than 28 days before her intended departure, and

    (b)in the event the parents agree that the Father shall spend time with the child in Australia, the Father will be responsible for all costs associated with his travel, including all airfares and accommodation. 

11. That when the child is in the Father’s care, the child communicate with the Mother as follows:

    (a)by FaceTime, Skype or other audio-visual means, once per week at days and times as may be agreed between the parents, but in default of agreement, then each Sunday at 2pm NZDT (Saturday 7pm PDT), and for such purpose, the Father will initiate the call and ensure that the child has access to the Skype, FaceTime (or other audio-visual) application;

    (b)at such other times as may be agreed between the parents.

12. That the Mother:

    (a)provide the Father will all school newsletters, notices, photograph order forms, school performance videos, reports and other documents ordinarily provided to parents and to the extent it may be necessary;

    (b)shall notify the Father of any serious illness or injury the child may be suffering requiring medical attention as soon as she is able, including all details of the illness or injury and the treating medical practitioner.

13. That both parents will advise the other of any proposed change in their residential address, telephone number or e-mail address, at least 28 days prior to such change.

14. That any communication relating to the child be by e-mail and between the parents only, save for in the event of an emergency.

15. That the Father be restrained by injunction from the following:

    (a)abusing, insulting, belittling or otherwise denigrating the other party or their family in the presence or hearing of the child and from allowing anyone else to do so;

    (b)discussing these proceedings, adult matters or exposing the child to parental conflict, within the presence or hearing of the child or allowing anyone else to do so;

    (c)exposing the child to all forms of family violence or allowing anyone else to do so.

16. That all extant applications be dismissed and removed from the list of matters awaiting final determination.

17. That the Independent Children’s Lawyer be discharged.

18. The Mother shall be at liberty to forthwith do all acts and things and sign all necessary documents so as to enable X to obtain a Visa to relocate with the Mother to City A, United States of America notwithstanding any objection of the Father.

19. In the event that the United States Immigration department processing X’s visa application requires the father’s signature, he shall forthwith execute all necessary forms to facilitate X’s relocation, including passport and visa applications, with the execution thereof not to be withheld or delayed.

20. In default of the parties or any of them doing all acts and things and executing all such documents as are necessary to give effect to these orders, a Registrar of the Federal Circuit Court of Australia at Melbourne be appointed pursuant to s 106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.

21. Pursuant to Sections 65DA and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Hamstra & Rewi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 784 of 2020

MS HAMSTRA

Applicant

And

MR REWI

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of a young girl, X, born on 2014.  Although the matters in issue are of very considerable significance to both X and her parents, the substantive issue in dispute can be shortly stated.  The applicant mother seeks to relocate with X to United States of America, where her husband presently lives.  The respondent father who lives in New Zealand, seeks that X stay in Victoria with her mother.  This is because, as he sees it, his relationship with X will be significantly diminished if X relocates to the United States.  The Independent Children’s Lawyer essentially supports the position of the mother. 

2. I propose to make the orders that the mother seeks.

Agreed or Uncontroversial Matters

1. The parties’ affidavits do not in any way set out, in any kind of linear or clear way, the history of the matter.  This section relies upon these affidavits and upon the materials filed more generally. 

2. The mother was born 1995 and the father was born 1989.  The parties met and formed a relationship in 2013 in Victoria and as indicated already, X was born 2014.  In August 2015, following a separation, the father went to Queensland.  He returned to Victoria in January 2016 and final separation took place in March 2016.  Shortly thereafter, the father relocated to Perth and then at some point later in the year (the date does not seem entirely clear) he relocated to New Zealand.  This is his country of origin.  The father now lives in Town B, New Zealand together with a new partner and her children.

3. In September 2016, the father refused to return X to Australia following X spending time with him.  Hague Convention proceedings were then brought which enabled the mother to return to Australia with X in May 2017.  The father did not see X thereafter until February 2019. 

4. The mother facilitated further time with the father in New Zealand, following the death of the father’s sister in February 2019, and X also was made available to go to Perth with the father and his family in late 2019.  The total time spent with the father in 2019 was relatively significant.  The father has not however, seen X face-to-face, as I understand the matter, since February 2020 albeit that he sees her regularly by electronic communication.

5. The mother met her husband, Mr C, in April 2019, and notwithstanding the tyranny of distance, matters moved relatively rapidly, and they married 2019.  Mr C is a performer who seeks to establish what is described as a business of sale of goods.

6. The matter commenced by way of applications relating to passports but has evolved through an amended application and further amended application to involve relocation to America.  The mother proposes in essence that the father spend time with X in two blocks a year, at times consistent with school holidays both in the United States and in New Zealand.

The Parties’ Affidavits

1. As I have already indicated, the parties’ affidavits are at least in part self-prepared and approach the matter in a perhaps, slightly scatter gun way.  I have had careful regard to these affidavits, much of which is paraphrased in the agreed matters above.  In the particular circumstances of the case however, detailed further examination of the affidavits is unnecessary.  It is more appropriate to concentrate on what was said at Court.

The Submissions Made and Evidence Given At Court

The Opening Evidence of the Mother

1. What follows is taken from my notes.

2. Counsel for the mother opened the case and indicated that he sought the orders in the case outline filed.  Counsel detailed the nature of the dispute and its background history, essentially consistent with the matters in the agreed section above.  Counsel emphasised that the mother was keen to ensure that the child continued to have a relationship with the father and the paternal family and pointed to the fact that upon the death of the father’s sister in February 2019, the mother had flown at her own expense with X in time for the funeral.  The mother was prepared to pay airlines fares and facilitate school reports and photographs for the father.  The counsel emphasised that only $4,000 had been paid in child support, amounting to between $120 and $170 per month but often paid late and inconsistently.  Counsel noted that the mother’s job as an artisan had ceased.  She plans to start a family with her husband.  Counsel noted that the father points to the inconvenience of the child living in City A but noted that his family lives in Western Australia.  He submitted that the time would be more consistent if the mother was living in City A.

3. The mother was called and adopted her affidavit as true and correct.

4. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother confirmed that she had been living in Suburb D for some time.  X is in prep at School E.  This started in June 2020.  It had been distance learning for most of the year and X was now in a holiday program.  The mother had researched schools in the United States, but the child cannot be enrolled without a visa.  The husband lives in City A.  They plan to live in City F, just outside of City A. 

5. The mother was cross-examined about an alleged dream job in the United States.  The mother said that there is a company.  She can get sponsorship.  She has an email confirming she has a full-time position and they will hold the position for her until the end of December but can extend it if necessary.  Her husband does shows.  He used to make a lot of money pre-Covid.  He had just launched his business.  The mother confirmed that she seeks that the father and she share travel costs, but it was put to her that the Independent Children’s Lawyer’s position was that the mother should fund the trips to New Zealand.  The mother said she had thought about this and had offered to pay all the travel, but the father had not responded.  The mother confirmed that she would find the money to pay for travel.  The father had a lawyer, Sandy Fox at the commencement under the proceedings.  The Hague proceedings took nine months.  The mother went to New Zealand to see the child on her birthday and there was no resistance from the father with whom she stayed.  The resistance was over the phone and online.  They had met in Town B.  The mother said that otherwise, she had been too busy with the Hague proceeding and that evidence was given with conviction.  The mother said that the father is usually very aggressive, and she usually talks to his partner, Ms G.  Ms G has two children but she does not know their names, only their nicknames.  Ms G is respectful when she speaks to her.  The father had threatened to come over in a heartbeat to sort Mr C out if he assaulted X.  He came once to go to Perth and picked up X on the way.  The main reason he opposes the mother’s relocation application is control.  He controls her via X.  It is how he speaks and goes about things.

6. Counsel asked how X is after she sees the father.  The mother said the last time was in January this year after the Perth trip.  But she was very distant with Mr C thereafter.  X said: “My dad said you’re not allowed” (to shower her).

   X goes to school at 8.20 and is up at 7am.  The mother picks her up from after school at 6pm. 

7. The mother was cross-examined about an annexure to her first affidavit.  She said there was no need for her husband to come with her to meet Mr Rewi.  The father met his partner in New Zealand.  He has a cousin in Queensland.  The father went to Perth on his own.  Since 2016, the father has come to Australia one time.  He has a job in New Zealand as a labourer.  She was 19 and the father was 25 when X was born.  Child support payments have now ceased.  She has to update her details through Centrelink.  The father’s partner, Ms G, is a healthcare worker or studying to be a healthcare worker.  X has a nice relationship with her children.  She talks about them on the phone.  She tries to make this happen as frequently as she can.  The Hague proceeding left a bad taste about trust.  She still would not stop the relationship with the father.

8. Mr C went to the United States on 25 April 2020.  She had to come to court to extend X’s passport.  When cross-examined about order 6 in her case outline, seeking the father be compelled to sign any necessary migration documents, the mother said that the Americans are quite strict.  It might require his signature.

9. She had agreed that X go to New Zealand for three months, but she was then overheld.  Shortly after X landed, the father told her that she would not be returning to Australia.  Communications were very difficult.  X was two at the time.  It was supposed to be shorter than three months, but he asked for longer. 

10. The mother was not generally aware of the detail of the Maori traditions which, of course, involved travel to New Zealand.  The father had a sister in Perth who was the one who died.  She was aware that the father had said he planned to move to Perth in some five years.

11. The father elected not to put any questions to the mother and there was no re-examination.

The Evidence from Mr C

1. Mr C described himself as a performer and adopted his affidavit as true and correct.

2. Under cross-examination by counsel for the Independent Children’s Lawyer, Mr C said he had met the mother in March 2019 at the location H where he was performing.  He was well-paid at the time.  He does industry work and has his performance crew which is from Saturday until 7pm.  He would make a good income of US$400 a day.  He has been doing this since 2011 and is a trained performer albeit self-taught.  He is also in a performance group which is a source of income.  They do commercial and public performance.  They were married within six months.  He has not married before and has no other children.  He has met X in person and over the phone.  He has an amazing relationship with X.  It is a learning process for him and her.  She calls him Mr C.  She calls her father dad.  When asked if he was happy for this to be so, he replied, “Of course.”  He was in love with the mother and wanted a family.  His work is reduced during the Covid pandemic.  Once open, it is likely his work will flow even better because there will be a lot more tourists.  The mother has been offered a job spot.  It is permanent and lucrative.  There is a lot of work for two performers in City A.  Not anyone can do it.  The mother is better, or they would not offer her a secure spot.  He will not stop the father seeing X in the United States. He was welcome to come and see her at any time.  He has never met the father face-to-face.

1. Under cross-examination by the father, Mr C confirmed that he believed they would hold the mother’s job for two years.  She is an amazing artisan. 

The Opening Evidence of the Father

1. The father said he did not understand.  What they want is about them not about his daughter.  It is all about her getting a job.  She had dumped her daughter several times with him.  He would like the child to live with him.  The text messages are only about him.  She has called him a bad father.  She said Mr C will be better.  She hangs up on him.  His daughter means everything to him, and he would drop the world for her.  He and his partner are trying to get to Australia in the next few years.  It is just the cost.  It will cost $12,000 for just him to fly to the United States and New Zealand for 10 days.  He cannot afford it.  The mother asked him to have the daughter for 12 weeks so she could go to the USA for 4 months.  This was bad judgment.  She needs to put his daughter first.

2. The father adopted his affidavit as true and correct. He had lived in Australia for six to seven years.  He was working when they lived in Perth and earning $3,000 per week.  The mother wanted him to take the child to New Zealand permanently but six months later she wanted to be a mother again which led to the Hague proceedings.

3. Under cross-examination by counsel for the mother, the father said he had a very strong relationship with X.  He said:

   She’s my daughter; she loves me; I care for her.

4. Counsel cross-examined about annexure “1” to the wife’s affidavit dated 18 September 2020, which is an updated call log.  The father agreed with this document.  He agreed that he had made seven calls since March 2020.  The mother has him blocked.  His mother and father can’t see the child on Facebook.  She blocked his partner recently.  He conceded that he received photographs.  He was cross-examined about his interaction with X’s school.  He did not know X’s teacher’s name and did not appear interested in the teacher.  He said that he talks with X about school, not the teacher.  They talk about silly things.  She sent through the kinder photos.  He was not denying the mother sends him photos. 

5. The father conceded he had spent time between 26 December 2019 and 5 January 2020.  This was the last time he saw X.  He was going to Perth.  He paid for the flight to Perth and Melbourne. 

6. The mother lives with her own mother.  He has Ms G’s two kids with him.  The mother wanted to go to America.  Everything she does, she does for her and not for his daughter.  He conceded that the mother had paid for the trip in March and April 2019.  His sister had died and the funeral was straight away.  In his culture, you have about one week.  The mother came over and hired a car and came in time for the funeral.  X was with him at the funeral. 

7. Counsel put it to him he had asserted that everything the mother does she did for herself and the father said yes.  When his sister died, this was the nicest thing she ever did for him.  Before that, she did not want X to have any relationship with his partner. 

8. The father confirmed the relationship commenced in August 2013 and separation was two years later.  It was an up and down relationship. X was going on one when he moved to Queensland at separation.  He had time with her.  She came for about a week with the mother and he paid.  He moved to be at Melbourne and attempted to reconcile but went to Perth and then New Zealand.  He had visited Australia since mid-2016.  Ms G’s family are in Perth.  It is hard to deal with the mother. 

9. It was put to the father that he had cancelled time on occasions, and he said he had cancelled once because he could not get time off.  There was a miscommunication with the mother.  It was put to the father that his texts were offensive, and the father responded that she had called him a not good dad.  It is not all one-way traffic.  He had told X not to let Mr C bath her.  That’s the mother’s job.  It does not sit well with him that Mr C should wash her. 

10. The father was cross-examined about his capacity to go to the United States and said he can only afford to go once a year to the United States on his own.  He is employed full-time and pays $80 per week in child support.  It was put to him that the total he had ever paid was $4,300 and he said he was not too sure.  He has been paying.  He does not pay school fees.  He is aware X has dental needs, but he has not offered to contribute.  He saw X in January 2020.  He saw her in June 2019 and in March 2019 for three days at the funeral.  It was put to him that the mother was proposing 10 days in the winter break and he said this sounded right and again, the 20 extra nights in the long summer holidays.  It was put that the child could spend five weeks in New Zealand each year and he could go to the United States, but the father said this takes away from his family here.  His relationship with his daughter is very important.  He will do anything for her.  He has only come once to Australia in December 2019 with his family.  He refused to sign the passport application at the start of the year because he did not trust the mother.  He accepted that phone calls will stay the same even if relocation took place.  He accepted that he had spent three periods of time in 2019 but not since.  So he conceded there was an 18 month period where he did not see the child.  He said he is moving to Australia, and will not be able to see his daughter, once his partner graduates as a healthcare worker.  The father says that the move stops everything.  He asked rhetorically how that would suit him and how would it suit his daughter. 

11. Under cross-examination by the counsel for the Independent Children’s Lawyer, the father said his partner’s name was Ms G and she has two children:  J, age 10 and K, who is nearly nine.  Ms G is studying healthcare and works part-time.  The children go to the local primary school.  The boy is active, but the girl is not sporting.  They have lost a baby but try for more children.  It was put to the father that X’s life would better if the mother and Mr C succeeded in their career work and he agreed.  He could see that X might get the best of both worlds.  He appreciated the proceedings was serious. 

12. When asked why he had not organised himself better for the proceedings, the father said he got tied up with work.  His partner is not working, and he cannot afford a lawyer and thought he would do it himself.  He works in a family business owned by his uncle.  There’s no one else that can do what he does at work.  He is a supervisor of 15 to 20 employees.  His take-home pay is just over $800 a week and there is no over-time.  Ms G’s work is a placement and she is not paid.  She will be a specialised healthcare worker, which is a three-year qualification of which she has done two.

13. The father of Ms G’s children is completely absent and gives no support.  They are renting at a cost of $550 per week.  X would share a room with K when she stays with them.  They plan to move to Australia in between three to five years which has always been the goal, but it has to wait until Ms G finishes her course in being a specialised healthcare worker.  She is a healthcare worker and is going the next step up.  He will not be able to take his family to Australia to see Ms G’s family, if he has to pay $10,000 to go to City A.  He would lose eight weeks to what has been going on. 

14. There was nothing that stopped him from coming to Australia more than once in 2016 to 2020.  He has a concern over his daughter’s safety.  His partner loves X.  He has been with Ms G going on three years.  The mother does not want X to have a stepmother.  Their relationship has now improved.  His parents follow the mother’s Facebook to follow X.  The mother lives with her own mother.  He could afford to go to the United States once a year but nobody else.  X calls Ms G’s children her brother and sister.  He starts work at 6am and stops at about 5.30pm.  The business has branches in City I and Town L and they are looking at opening one in Perth.  He would not stop telephone time while the child was with him in New Zealand. 

15. In re-examination, the father asked why it was hard for the mother’s partner to come to Australia.  He has no kids and it would be easier for him to move here.

The Final Submissions by the Independent Children’s Lawyer

1. Counsel indicated that she sought the orders in her minute. The mother should be permitted to relocate. The mother will continue the relationship with the father and was truthful in her evidence. There is different culture, both in the United States and in New Zealand, and the father can visit them in the United States. He could have visited in Australia but has not. Time would not have been blocked and the father would have been welcomed. The father was not represented but had not challenged the evidence of the mother or her partner, which was accordingly uncontested. It was better for X to relocate. The move to Australia is just a thought bubble and not organised. The mother has taken the case seriously. In relation to further documents necessary for the father to sign, a section 106A order would be appropriate.

Final Submissions by Counsel for the Mother

1. Counsel sought the orders in the mother’s minute which included paragraphs 5 and 6 and sought also section 106A order. It is a parenting case. There is no such thing as a relocation case. The parents are in different countries and the father went to New Zealand to be with his partner. No court orders were necessary in the past. X has lived with the mother, apart from the Hague case. The father moved to Queensland when the relationship was over and left X with the mother. She has facilitated time. The last 18 months the father has been overseas without any problem. X’s life will not change. There will still be phone calls.

2. The mother lets the father know if there are things the father should be involved with.  The mother is not obstructive, despite the Hague difficulties.  She went to New Zealand after the father’s sister died.  The evidence of Mr C suggested a real intimacy with the mother and a good relationship – and Mr C’s evidence about the importance of X’s relationship with her father was compelling.  The father says it is more convenient for him if his daughter remains in Australia.  Counsel referred to authority, to which I have regard, but it is not necessary to traverse it.  The mother has the opportunity of a lifetime in her job and this will benefit X.  The husband earns $800 a week and Ms G is almost qualified.  So far as parental responsibilities are concerned, counsel pointed to the fact that the father does not know who the teacher is.  The mother has paid for School E and is also paying for X’s dental work.  She needed sole parental authority for enrolling the child in the United States at school and for doctor treatment. 

The Final Submissions of the Father

1. The father asked rhetorically, what about the importance of his family with X.  It is not a bubble to move to Australia.  Three to four years was realistic.  He will move to have a full connection with his daughter.  There would be a full connection with his family.  If she moves, she will lose connection with his culture.  

Some Brief Observations about the Witnesses

1. The mother was a good witness.  She was composed, thoughtful and answered the questions put to her straightforwardly and responsibly.

2. Similarly, Mr C struck me as being an entirely believable witness.  His evidence about the importance of X’s relationship with her father was particularly impressive. 

3. Regrettably, the father made a less impressive impression.  His demeanour, notwithstanding the fact of course the evidence was taken by Microsoft Teams from New Zealand, was aggressive and domineering.  His answers on a number of occasions, seemed to lack insight and to be, albeit understandably, very self-focused.  He constantly blamed the mother for a number of shortcomings in the overall circumstances, but he had no real explanation for why he had not come to Australia more since he moved to New Zealand.  Although he said on a number of occasions, it was just about his daughter, it is clear that his primary emphasis, and I repeat once again, this is understandable, is on himself. 

The Statutory Pathway

1. I turn now to the statutory pathway which is set out in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends and holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

Parental responsibility

1. The mother has, with the exception of the overholding period in New Zealand, which gave rise to the Hague proceedings, been the primary carer of X for her life.  X was only very young when the parties separated.  For a substantial proportion of her life, the father has lived overseas and necessarily, the mother has been the one to make the relevant parental decisions.  If relocation is permitted, as a matter of practical politics it must necessarily follow that the mother have sole parental responsibility.  This appears to be all the more so, given that – to the extent that the evidence reveals the matter – it appears that formal court orders to this effect may be necessary to enable the child to be properly enrolled at school and to receive medical treatment should relocation occur. 

2. If relocation is not permitted, the same position in truth remains in any event.  The father’s proposals to come to Australia are at best three to four years away and there are obviously going to be significant decisions to be made about X during her early years at school and in the light of the dental treatment she apparently needs (albeit little detail has been vouched safe as I understand the matter as to exactly what that is). 

3. It is clear that it is in X’s best interests that the mother have sole parental responsibility.

The Live With and Spend Time Regime – The Primary Considerations

1. All parties agree in principle that it is desirable that X have a meaningful relationship with both of her parents.  Despite some historical concerns of domineering and aggressive behaviour on the father’s part, there is nothing in either parties’ position that suggests that there is any need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence (section 60CC(2)(b)).  Indeed, the mother’s proposal for time implicitly presumes that X will be safe and well in the father’s care.  It should be noted that the father’s position (he has not filed the response) is essentially confined to opposing the application to relocation.

The Additional Considerations – Section 60CC(3)(a)

1. X has not expressed any views about this matter at all and in any event, her age militates very strong against the weight that would be granted to any views that she might express. 

Section 60CC(3)(b)

1. As already indicated, X has effectively lived with her mother almost all her life and the mother has been her primary carer.  It is immediately obvious that she has a very close relationship with her mother.  All the material suggests, however, that X has a good relationship with her father, notwithstanding the tyranny of distance and the relatively infrequent time she has spent with him.  It seems that X also has a good relationship with the father’s partner, Ms G, and with her two children.  The father has said this in his evidence and was not challenged.  Although no evidence has been called, I would infer that X must have a good relationship with her grandmother with whom she lives, and although there has been some reference to the father’s family, and possibly also Ms G’s family in Perth, there is no significant evidence as to the extent of any attachment that X may have in that regard. 

Section 60CC(3)(c)

1. The mother has plainly taken all appropriate steps to participate in making decisions about X and spend time and communicate with her.  When the father overheld the child, the mother promptly and appropriately undertook Hague Convention proceedings which were successful. 

1. The father’s history in this regard, is in my view, less satisfactory.  While I have no doubt whatever that he loves X and that she loves him, his endeavours to spend time with X since he moved to New Zealand, have been fitful.  True it is that his financial circumstances may be somewhat strained but the air fares from New Zealand to Australia are not enormous and his failure to spend more time, in circumstances where he is employed in a family business which one might reasonably suppose would give him some flexibility, is surprising.  Nonetheless, I repeat that it is clear he loves his daughter dearly. 

Section 60CC(3)(c)(a)

1. Once again, the mother’s performance of her obligations has been without criticism.  The father unfortunately, does not do so well under this heading.  I accept the mother’s evidence that child support has been fitful and inadequate.  I appreciate once again that the father’s financial circumstances may be strained but the fact is, he has not contributed regularly as he should have done, even if in small amounts to X’s wellbeing.  It has be left to the mother to address, not only school fees – something that the parties’ might legitimately disagree about, but her dental treatment as well. 

Section 60CC(3)(d)

1. X appears to have an unremarkable and at least adequate relationship with the mother’s husband, Mr C.  Mr C was not challenged as to his generally good relationship with the child, albeit that unfortunately and inappropriately the father has sought to limit his role.  The father’s text messages to the mother (which I have otherwise not found it necessary to comment on) bespeak a controlling and inappropriate desire on his part to exclude Mr C, who is on any view of the matter, going to be a part of and an important part of X’s life.

2. In the event that relocation is permitted, it is difficult to see that it will make, in truth, any great difference in the amount of time that X spends with her father and his family.  The fact is, she has not spent much time in the past with him and his intention to move to Australia, in my view, remains unclear.  The father clearly has a close relationship with his own family who, as I would understand it, are predominately in New Zealand and any suggestion of return to Australia is open to question.  In my view, the time regime proposed by the mother in the event that relocation is permitted will not significantly alter the nature of her relationship with her father.  It would be likely to be at least as significant as it has been in the past.

Section 60CC(3)(e)

1. This is in the context of this particular case a particularly important matter. Self-evidently, it is much cheaper to fly from New Zealand to Melbourne than it is to fly from New Zealand to City A. There is no practical difficulty in the kind of electronic communication that the mother proposes in the event of relocation but there must necessarily be a practical difficulty in terms of expense. This is a matter, however, potentially addressed by the orders proposed by the Independent Children’s Lawyer in relation to the expense of travel. In my view, the mother, who said she would find the necessary funds if required, should be required to pay for her own travel and that of X from America to New Zealand for the mid-year break, and the father should pay for his own air ticket to go to and return from the United States. I will return to this aspect of the matter under Section 60CC(3)(m).

Section 60CC(3)(f)

1. There is no suggestion that either parent or any relevant individual is not able to care properly for X’s needs.  The father’s hostility to Mr C, as I have already observed, does him no credit. 

Section 60CC(3)(g)

1. X is a young girl with a settled background of living with her mother and seeing her father from time-to-time.  At her young age, there will be no significant dislocation in terms of schooling, should relocation take place.  She will only have done one-and-a-bit years in School E before she relocates.  There is nothing in the materials to suggest that X is a particularly anxious or troubled child in any way.  The lifestyle of the mother and Mr C does not require comment, to the limited extent that it is illustrated, bearing in the mind the relatively brief nature of their acquaintance. There is nothing to suggest that there are any inhibitions to the proper treatment of X, whether here or in the United States.  The father has referred to his Maori culture but on any view of the matter, X’s exposure to this has been extremely limited. 

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. The attitude of the mother to X is unexceptional and it is not necessary to say more than that.  The father undoubtedly loves his daughter but his attitude towards being a parent seems, perhaps, slightly inconsistent given the relative failure on his part to take the opportunity to spend time with X while he has been living in New Zealand. 

Section 60CC(3)(j)

1. Whatever arguments and volatilities there may have been during the parents’ relationship, there is nothing to suggest that there is any family violence that now operates on the determination of this matter.

Section 60CC(3)(k)

1. I do not understand there to be or to have been any intervention orders or the like.

Section 60CC(3)(l)

1. It is plainly desirable there be final orders in this matter.  No one has suggested otherwise.

Section 60CC(3)(m)

1. The consideration of relocation has already been touched on in some of the subsections above.  Taking a step back however, the choice in the case is stark.  The mother has fallen in love with and married a citizen of the United States.  She wants to go and live with him there and indeed, it is his intention and no doubt hers, that they start a family together.  These are entirely normal and laudable aspirations.  The mother has what has been described as a job opportunity of a lifetime and it seems likely that she will be able to let her financial position be substantially improved by the move to the United States. 

2. The father says, however, that she should not go because in essence, it is inconvenient to him.  This reluctance on his part is, of course, as I have already said more than once, perfectly understandable but it reveals a measure of self-focus in any event.  Furthermore, the fact is that he has not spent all that much time with X since he moved to New Zealand.  His suggestion that Mr C move to Australia, flies in the face of Mr C’s uncontradicted evidence as to his earning capacity in the United States and its obvious lesser opportunities are in Australia.  This evidence was given cogently and is in any event, only common sense. 

3. In circumstances where the economic future of the couple will be so greatly enhanced, it ultimately beggars common sense to suggest that this should be prohibited.  It should be remembered that the mother does not have to prove compelling reasons why she wishes to move.  The overarching consideration is X’s best interests, that is what is at the forefront of my thinking.  The mother will be devastated if she is unable to re-join her husband and to take up the job opportunity of a lifetime.  In truth, the father’s time with the child will be only enhanced because it will involve court orders that will be complied with (America is after all, a Hague Convention country itself) and in my view, although puts the matter shortly, the application to relocate is in my view, irresistible. 

Conclusion

1. The mother will be permitted to relocate.  The father has not articulated a response suggesting any other or any different orders, in the event that relocation is permitted.  I think that the Independent Children’s Lawyer’s minute is preferable to that of the mother and there will be orders accordingly.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 20 November 2020