Hase and Welham

[2017] FamCA 633

FAMILY COURT OF AUSTRALIA

HASE & WELHAM [2017] FamCA 633

FAMILY LAW – CHILDREN – interim orders – practicality of relocation – availability of visa - relocation refused

Family Law Act 1975 (Cth) - section 60CC

APPLICANT: Ms Hase

RESPONDENT: Mr Welham

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: WOC 948 of 2009

DATE DELIVERED: 18 August 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Melea Mullard Lawyers

SOLICITOR FOR THE RESPONDENT: KJB Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

1. The matter of Hase & Welham is adjourned to 4pm on Wednesday 23 August 2017 for a period of 30 minutes for the purpose of determining what arrangements will be in place.

2. For the purpose of interim determination should the parties wish to rely on any material such material is to be filed and served no later than close of business on Tuesday 22 August 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hase & Welham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: WOC 948 of 2009

Ms Hase

Applicant

And

Mr Welham

Respondent

REASONS FOR JUDGMENT

1. The general history is the parties separated in 2008.  Following separation there was a splitting of the children of the relationship, such that two sons went to live with the father, and a son and daughter, B (the child), went to live with the mother.  In 2008 the mother re-partnered and in July 2015 moved to relocate to the United States of America (the USA) with that partner.  She has two children with that partner.  At the end of 2014, or start of 2015, the child moved from living with the mother to living with the father in anticipation of the mother’s move.  The child has since that time lived with the father and a stepfamily comprising of a stepmother and two stepbrothers.  The child has reported unhappiness and abuse at the hands of one of the stepbrothers in particular.  The mother has now visited Australia recently and the child is currently staying with the mother but still seeing the father.

2. The principal competing matters in this case concern whether the child will remain in Australia with her father or will travel to the United States to live with her mother.  The matters that go to concluding that are three.  The first is the question of risk in the father’s house that is, a risk of bullying from the stepbrother or coldness and bullying from the stepfamily and the unavailability of the father.  The second is the child’s views.   Her desire as a 15 year old to live with her mother in the USA and her desire not to live in the father’s household.  The third is the risk or uncertainty that goes with the USA; will she be able to enter, will she be able to stay, what will happen with schooling, how will living with the mother and her husband and young siblings in a new home work out.

3. The dominant s 60CC factors are the need to protect the child from harm, from family violence, to enable her to benefit from meaningful relationship with her parents, her views, the nature of the relationship she has with each of her parents and with other significant people, the likely effect of change upon her, the practical difficulties in particular given that the mother lives in the USA and the father in Australia, and the capacity for each parent to provide for her needs - in particular that is, the capacity of her father to provide a secure environment and the capacity of her mother to provide a place for her to live and a school in the USA.

4. These are interim proceedings pending a final determination and because of that there are distinct limitations in the proceedings.  I am limited in terms of the fact-finding that I can engage in, I have to rely more heavily on agreed matters rather than contentious matters, but even where there are matters that are contentious I am still required to assess the risks.  There are already final orders which provide for equal shared parental responsibility and it is clear that there could not be equal or even substantial and significant time between the parties because of the geography of the case.  It is a stark choice in the interim proceedings that is, to live in Australia with the father or in the USA with the mother. 

5. While it was floated that the child might be able to live with the maternal grandmother in Australia there is no evidence that would enable me to form such a conclusion. 

6. Despite the suggestion that I could simply make orders that the child live with the mother even if she is unable to travel to the USA and effectively see what happens, there is no evidence that the mother contemplates such an outcome.  If the mother did contemplate returning to Australia that would drastically change the considerations in this case.

7. As to the first of the issues being the risks in the father’s house, the child reported to the mother in July 2017 that her stepsiblings C and D, usually D, often physically hurt her, punching her in the arms and back and kicking into her legs, physically holding her by the shoulders and verbally abusing her.  There had been previous complaints by the child to her mother.  There is contention about the scope of the altercations between the stepsiblings although, it is agreed, that there was an incident that occurred in 2015 of a fight between D and the child, or an attack by D upon the child, which the father says that he dealt with but the child was unhappy with the resolution of it. 

8. The child alleges that her stepmother is afraid of C and D and has said that the stepmother has told her that the child is the problem, both of these are denied by Ms Welham, the stepmother, they are also denied by the father. 

9. The child alleges that the father declined to give her the permission that she required to speak to a school counsellor, he denies that he failed to provide a required permission.  It seems odd that a school counsellor would require such permission but I do not need to make a determination on that. 

10. The child has also told her mother that D punches, kicks and pinches her in places that people do not usually see and has locked her in her room and cut off her Internet. 

11. The child has raised the issue that her father is not around enough to stop these things happening and to deal with the issues although, his evidence was that he has recently been offered a position where he will have each second week off.  If that was the case that would seem to make him more available. 

12. There is some contentious evidence about the degree to which the father has sought to influence the child’s views about going with her mother.  Ms Welham contradicts allegations that are made that D is particularly prone to violence and anger although, she accepts that there are some isolated incidents.  Ms Welham has also described incidents where the child has physically attacked D and then complained when he has responded to that.  This makes it difficult to characterise the inter stepsibling conflict and violence.  The father accepts there has been some bickering between the child and D and accepts that there was a physical altercation in 2015 in which he intervened and in which he says D was injured suffering scratch marks, but not to his observation the child.  The father has no knowledge of the child being locked in her room by D but accepts that her brother did this to her once, thought it was funny and was firmly reprimanded by the father.

13. The family reporter examined the issues of conflict between the child and her stepsiblings and indicated that they did not seem to be unusual to her that is, that sibling conflict could sometimes result in violence.  She thought that what was happening between the stepsiblings was of a nature that in hindsight the significance of the conflict would fade for both the child and D.  Nevertheless, the conflict is significant and presents a risk that is presently a risk of emotional harm, psychological harm and physical harm, of these the most significant being the emotional impact according to the family reporter.  

14. The child says that she feels down all the time although it is better understood to be an episodic feeling down, she feels sad, she feels vulnerable, she feels concerned that her stepbrothers will enter her room without her permission, she can hear them saying things through the wall and she is at times frightened.  The family reporter indicated that this could be detrimental to her education but that was not the case as yet.  She also indicated it could lead to withdraw by the child from family and friends, however the child is quite sociable which is perhaps a protective factor.  It is possible that this could lead to depression which would be quite concerning if the child was not engaging socially.  At the same time, importantly, it is not the case that the child holds a negative view of her father, it is not the case that she sees him as responsible and she perceives her relationship with him as being a good relationship. 

15. So in summary, there are risks, in particular emotional risks, in the father’s household, they flow from unhappiness in a context that is as yet undetermined of stepsibling conflict.  The child has now been out of the home for some weeks and one would expect that it is difficult for her to transition back in, the degree depending in part on the reception that she receives.  In submissions it was put for the father that he, the stepmother and the two stepbrothers are prepared to undertake counselling or family therapy to try and assist this.  The efficacy of family therapy is at present doubtful.

16. The second issue is the child’s views.  The evidence from the family reporter indicated that the child is very clear as to her wish to live with her mother which is in turn entwined with a wish to live in the USA.  At 15 the family reporter says these views should be given a fair degree of weight, to request someone that age to go against their wishes she says becomes a negative.  Added to those views, the child does not feel safe or happy but she does not fully appreciate the ramifications of relocation, she does however understand that there is a risk of disruption, she does understand it might not work out, but it is not a highly informed decision despite the fact that she has lived with the mother before and so has a fair idea of what that is like.  The family reporter thought that the child’s views of the USA were idealised.  In summary it is a difficult position to go against views of this age, views that lack some but not all insight.  It is also noteworthy that going against the child’s views would also involve putting her in a position where she is unhappy and prone to emotional harm.

17. The third set of risks or uncertainties flow from the USA.  At the initial hearing there was a dearth of evidence dealing with the practicalities of the proposal of the mother for the child to move to the USA and to commence school there.  I made directions providing for the filing of further material on this point.  It is not surprising that the parties might have struggled to pull this material together as the matter has come on at short notice. 

18. The mother filed an affidavit on 9 August 2017 indicating the following process.  The first is that she would apply for a passport for the child, apparently the child does not have a passport - the previous one was lost and cancelled.  There is no evidence before me as to how long this process might take.  I do not know but I anticipate that it could be obtained within a reasonable period of time.  The second step for the mother is to use a Visa Waiver Program available to Australian citizens, known as ESTA to enter the USA for the child.  The third is that once in USA there would be an application made for the child to have permanent residency, that is a green card, and within 90 days of her arrival the application would be made.  The mother is a permanent resident with a green card and asserts that it makes it easier to obtain a green card if that is so.  She asserts that the child’s status is as an alien lawfully admitted for permanent residence on a conditional basis if she goes there.  She asserts that on completion of the forms the child would become a permanent resident but accepts it may take two years.  Although the mother has obtained a green card herself she has no particular expertise in US migration law.  She has produced some legislation.  Her views about the matter are views I should be particularly cautious of if they are contradicted in the context of these interim proceedings. 

19. The father called evidence from Ms E, who is a United States Lawyer practicing in Australia in the particular area of migration to the USA.  She is a person with the relevant expertise to give evidence on the capacity to enter and remain in the USA, she carefully set out the basis for the opinions that she gave.  She gave evidence about the various pathways to permanent residency in the USA on the assumption that an application might be made by the mother’s husband, I do not doubt that he would make such an application if he was asked to do so. 

20. The first pathway is for the child to make an application while in Australia that involves an interview process and it takes 10 to 12 months from filing of the application to interview. 

21. The second process is to make an application while the child is in the USA.  Ms E says the question of acceptance there is discretionary, if she was not accepted that is, refused for permanent residency, she would typically be required to leave and there may be issues with re-entry into the USA.  Once she undertakes a process of applying for permanent residency she would require advance permission by the US Citizenship and Immigration Service to visit Australia and there would be a three-month delay expected in having that permission provided.  However, it is vital to note the particular manner by which the mother says she would have the child in the USA in order to make such an application for a green card and that is entering into the USA via the ETSA Programme.  Ms E says that the child does not qualify to use the ETSA Programme because she both seeks to migrate to the United States and to attend school in the United States rather than undertake a tourist trip of 90 days or less.  It is not allowable to use the ETSA Programme if you have immigrant intent.  She further says that there would be a likely refusal despite obtaining an ETSA, there would be a likely refusal if the Customs and Border Protection Officer became aware of the facts of this case, that is that the child was intending to apply for permanent residency and was intending to attend school in the USA.  If the Customs and Border Protection Officer became aware of such there is a risk firstly, that the child would be interviewed, that the child would be detained and a risk that the child would be returned.  The risk of refusal as put seems to be a likelihood.  Further, a failure to disclose that that was the purpose of the child’s travel on the part of the child could lead to a lifetime ban for the child if she was found out and could lead to her not being able to visit the USA in accordance with the Visa Waiver Programme in the future.  Quite seriously there are collateral issues for those involved in her travelling to the USA for the purpose of migration using the ETSA and that is those involved may be involved in deportable activities from the USA.  Ms E provided evidence that there is a current United States Presidential Directive to take action in circumstances where people seek for children to migrate to the USA other than through a proper channel.

22. In summary, the mother’s plan appears to fall foul of US migration law with potentially serious consequences of the child’s refusal and forced return and some risk to the mother’s continuing status in the USA. 

23. The mother further suggests that the child would be able to attend the F School, she has been told that the child can attend there subject to certain requirements being met which include her being a resident of District … boundaries or having an intent to move there.  The mother does not currently live within those boundaries but has previously expressed her intent to move there if necessary.  Alternatively, the mother says that the child might be able to be enrolled at the G School, no permission has been obtained from that high school as yet.  There is significant uncertainty about the child’s schooling in the USA but in some ways this is to be expected as the mother says it will be necessary to involve the child in the decision-making process.

Conclusion

1. The child’s views are to be given significant weight even on an interim basis.  The fact that they are supported by the evidence of the family reporter gives a better basis on an interim than might otherwise be available to assess the views, although I still have to be careful about assessing those views.  Her age and the interaction with the unhappiness that she has in her father’s home, the risks to her, which although contentious, of emotional harm are such that while I cannot pin down the extent of the risk I must act on the basis that there is a degree of risk to the child.  These matters weigh heavily in favour of the child living with the mother and consequently in the USA.  These issues are to some extent ameliorated by the reasonably non-contentious evidence that the father does not pose a risk.  There is evidence that the child does not think that her father is a risk and has a good relationship with him.  There is potential for counselling, I do not place great weight upon that at the moment although it would be helpful if the child was to live with her father for that to take place.  Even taking into account the ameliorating circumstances they weigh heavily in favour of the move.  At the same time the worst of outcomes according to the family reporter is if the move to the USA does not work out and the child has to move back.  There would be a further dislocation for her if she has to move back, it will be harder for her to repair relationships and to form a second transition.  Although I cannot assess precisely the likelihood that the child would be found out in an attempt to enter into the USA the risk of refusal is significant, involving as it does in detention, interview and deportation.  The very fact of a refusal and the return to the child I expect would impact heavily upon her.  That means that the mother’s proposal cannot be seen at present, in the interim at least, as in the child’s best interests because the risks to the child, including to her stability, outweigh the risks identified as potential risks in the father’s household.  There will not be permission to relocate the child to the USA in the interim.  The consequence of that is that the orders of 4 August 2010 will remain, although there will be an amendment to the orders to reflect the fact that the child will be living with her father. 

2. What has not been addressed in these proceedings is the question of visits to the USA.  Those visits, if the child was to visitor her mother, do not fall foul of the evidence that has been given about the problems with migration.  There is currently provision within the orders for permission to be given by the father for the child to travel to the USA.  If permission was to be refused then an application can be entertained by this Court to give such permission provided there is adequate evidence about the circumstances. 

1. I propose before finally pronouncing the orders to stand the proceedings down for a few minutes.  The reason for doing that is I expect that there is going to be a difficult time of transitioning the child back to her father’s household.  I do not expect that that has to happen immediately.  I do expect that it is something that needs to be dealt with quite sensitively so that it is better to be done with some thought and cooperation between the parties before I pronounce orders.  Secondly, one of the Family Consultants is available at present to speak to, in particular the solicitors for the parties, the parties if necessary, about potential support mechanisms through counselling for the child in returning to her father’s home.  I propose to stand the proceedings down for 10 minutes to allow the parties to speak to the Family Consultant and to determine what would be a sensitive way to return the child to her father’s care.   

Addendum

1. Following delivery of reasons and prior to delivery of judgment it has been indicated that the mother will remain in Australia so that the child can stay with her.  This calls into question what the appropriate interim arrangements may be.  None of the other parties and possibly not even the mother have yet been in a position to prepare for what those arrangements might be.  The current orders provide for the child to live with her mother, she advises that in pending further interim hearing of the matter she will facilitate as much time as possible between the child and her father.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 August 2017.

Associate:

Date:  23 August 2017