FAMILY COURT OF AUSTRALIA
Holt & Stiller [2020] FamCA 1132
File number(s): BRC 4104 of 2018 Judgment of: BAUMANN J Date of judgment: 17 December 2020 Catchwords: FAMILY LAW – CHILDREN – application for interim international relocation by the mother to New Zealand with the child – orders made allowing international relocation on an interim basis Legislation: Family Law Act 1975 (Cth), ss 60CC, 102NA Cases cited: Banks & Banks [2015] FamCAFC 36
Beaton & Beaton [2020] FamCAFC 297
Malcolm & Munroe and Anor (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
Sawant & Karanth [2014] FamCAFC 235
Stringer & Nissen(No. 2) (2019) FLC 93-922
Number of paragraphs: 35 Date of hearing: 17 December 2020 Place: Brisbane Applicant: Self-represented Respondent: Self-represented Independent Children’s Lawyer: Ms K Cherry
Cherry Family LawyersORDERS
BRC 4104 of 2018 BETWEEN: MR HOLT
Applicant
AND: MS STILLER
Respondent
INDEPDENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
17 DECEMBER 2020
UPON THE UNDERTAKING OF THE MOTHER:
A.That she will return to Australia to appear in person for a Final Hearing of these proceedings, should that be required, and upon compliance with Order 1 hereof.
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the mother shall forthwith cause a bond of $2,000 to be paid to the Collector of Public Monies of the Brisbane Registry of the Family Court of Australia, with such funds to be deposited by the Collector of Public Monies into a non-interest bearing account.
2.That upon receipt of payment in accordance with Order 1 hereof, the Collector of Public Monies of the Brisbane Registry is to notify the chambers of the Honourable Justice Baumann so that an Order may issue from chambers to provide for the removal of the child’s name (namely X born … 2016 (“the child”)) from the Airport Watch List.
3.That upon the Registrar of the Family Court of Australia being satisfied that the proceedings have been finalised, the monies paid to the Court by the mother are to be released to the mother as soon as possible.
4.That in the event that the mother fails to return to Australia for a Final Hearing of these proceedings, the monies paid to the Court pursuant to Order 1 hereof may be released to the father to assist meeting legal costs to seek the return of the child to the Commonwealth of Australia.
5.That upon satisfying Order 1 hereof, the mother be permitted to relocate the residence of the child to New Zealand on an interim basis.
6.That upon relocation to New Zealand, the mother shall inform the father and the Independent Children’s Lawyer of her residential address, telephone and email contact details, and shall file a Notice of Address for Service with the Court, providing the Court with updated contact details. The mother shall keep the father, the Independent Children’s Lawyer and the Court informed should such details change prior to a Final Hearing.
7.That the father is restrained from being under the influence of alcohol and/or…
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CaseChat Overview and Summary
The court was required to determine whether to grant the mother's application for interim international relocation of the child to New Zealand. This involved considering the welfare and best interests of the child in the context of an interim order for relocation.
Baumann J reasoned that interim international relocation could be permitted, subject to significant conditions designed to safeguard the father's relationship with the child and ensure the mother's compliance with future court orders. These conditions included the mother providing a $2,000 bond, which would be forfeited to the father for legal costs if she failed to return for a final hearing. The court also made detailed orders regarding communication between the child and the father, both before and after relocation, and mandated the use of a parenting app for information exchange. The mother was permitted to relocate the child to New Zealand on an interim basis upon satisfaction of the bond requirement.
Orders
Orders of the court
BRC 4104 of 2018
BETWEEN:
MR HOLT
Applicant
AND:
MS STILLER
Respondent
INDEPDENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
17 DECEMBER 2020
UPON THE UNDERTAKING OF THE MOTHER:
A. That she will return to Australia to appear in person for a Final Hearing of these proceedings, should that be required, and upon compliance with Order 1 hereof.
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That the mother shall forthwith cause a bond of $2,000 to be paid to the Collector of Public Monies of the Brisbane Registry of the Family Court of Australia, with such funds to be deposited by the Collector of Public Monies into a non-interest bearing account.
2. That upon receipt of payment in accordance with Order 1 hereof, the Collector of Public Monies of the Brisbane Registry is to notify the chambers of the Honourable Justice Baumann so that an Order may issue from chambers to provide for the removal of the child’s name (namely X born … 2016 (“the child”)) from the Airport Watch List.
3. That upon the Registrar of the Family Court of Australia being satisfied that the proceedings have been finalised, the monies paid to the Court by the mother are to be released to the mother as soon as possible.
4. That in the event that the mother fails to return to Australia for a Final Hearing of these proceedings, the monies paid to the Court pursuant to Order 1 hereof may be released to the father to assist meeting legal costs to seek the return of the child to the Commonwealth of Australia.
5. That upon satisfying Order 1 hereof, the mother be permitted to relocate the residence of the child to New Zealand on an interim basis.
6. That upon relocation to New Zealand, the mother shall inform the father and the Independent Children’s Lawyer of her residential address, telephone and email contact details, and shall file a Notice of Address for Service with the Court, providing the Court with updated contact details. The mother shall keep the father, the Independent Children’s Lawyer and the Court informed should such details change prior to a Final Hearing.
7. That the father is restrained from being under the influence of alcohol and/or illicit drugs at any time that he is having Skype/Facetime or telephone communication with the child.
8. That as soon as practicable the parents shall each register for the Divvito parenting App for the purposes of exchanging information about the child X.
9. That the Independent Children’s Lawyer be at liberty to apply.
10. That these proceedings be adjourned for Case Management Hearing at 9.30am on 12 March 2021 in the Family Court of Australia at Brisbane.
11. That the mother have leave to appear by telephone on 12 March 2021 (from New Zealand) by using the “AAPT GlobalMeet” telephone conferencing system as follows:
(a) She shall telephone … (with the necessary international dialling codes) by 9.25am (Queensland, Australia time) on 12 March 2021;
(b) She shall then enter the pass code …; and
(c) Hold the line until the Court is ready to connect and proceed with the matter.
12. That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on … June 2021 in the Family Court of Australia at Brisbane.
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
13. That the child spend time and communicate with the father at all times as may be agreed upon between the parents, and failing agreement, as a minimum, as follows:
(a) Until such time as the mother relocates with the child to New Zealand:
(i) each Saturday and Thursday from 9.00am until 10.00am;
(ii) with such time to be supervised by Ms B;
(iii) with the father to meet the child and Ms B at the mother’s apartment building; and
(iv) with the father to be at liberty to bring other family members to spend time with the child on the visits which occur on Saturdays.
(b) that time will not occur on Saturday, 26 December 2020 due to Ms B not being available, however in lieu therefore, there shall be a visit on Monday, 28 December 2020 at 9.00am, on the same conditions as set out above; and
(c) upon the mother relocating with the child to New Zealand:
(i) by Skype or Facetime communication each Saturday at 1.00pm (New Zealand time), and each Wednesday at 3.00pm (New Zealand time);
(ii) that the mother will facilitate such communication by ensuring the child is available to take the Skype or Facetime call and has sufficient technology available to her to facilitate such communication; and
(iii) by telephone or other electronic communication at all other reasonable times as agreed and as may be facilitated at that time.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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