Kemp and Wood

[2016] FamCA 368

FAMILY COURT OF AUSTRALIA

KEMP & WOOD [2016] FamCA 368

FAMILY LAW – CHILDREN – final orders – undefended hearing – where the mother seeks an order that she be permitted to relocate to the United States of America – where consideration is given to the best interests of the child – where there is a risk of emotional and psychological harm for the child if her and the mother are prevented from relocating – where the father has not engaged in the proceedings nor spent time with the child for some time – where the mother is permitted to relocate – where orders are made for the child to live with the mother and for the mother to have sole parental responsibility.

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Kemp

RESPONDENT: Mr Wood

FILE NUMBER: DNC 125 of 2016

DATE DELIVERED: 13 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mills

SOLICITOR FOR THE APPLICANT: DS Family Law

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The order made by the Federal Magistrates Court of Australia (now known as Federal Circuit Court of Australia) on 15 August 2006 is discharged.

2. The Court dispenses with service upon the respondent of the Application for Parenting Orders filed on 21 March 2016.

3. The mother have sole parental responsibility for day to day issues effecting the child B born on … 2001 (“the child”)

4. The mother have sole responsibility for day to day issues effecting the child including but not limited to school enrolments, social security applications and medical appointments.

5. The mother have sole responsibility for signing all documents and doing all necessary things to apply for the child to have any necessary visas and to maintain a current Australian Passport UPON NOTING this permission is granted for the purpose of obtaining a visa to the United States of America for permanent residency and for all future travel until the time the child is of legal age to travel without the need for this permission.

6. The child live with the mother.

7. The child spend time with and communicate with the father as agreed.

8. The mother be permitted to relocate with the child to the United States of America.

9. All matters are removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 125 of 2016

Ms Kemp

Applicant

And

Mr Wood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I take into account the affidavit material which is filed by the wife and to which are annexed copies of correspondence passing between the mother and the father and, in particular, the entries by way of electronic communication.  I am satisfied that the father has received the necessary documents advising him of the Court proceedings and that he is aware of the Court proceedings.  I am satisfied, therefore, that any of the rules which might otherwise apply in relation to service can be dispensed with and the matter can proceed before me today on the basis that the father has been served and is aware of the matter.

2. This is an application which is before me seeking orders that will allow the mother to leave Australia and commence living in the United State of America with her new partner and to take the child with her. 

3. The issues that need to be determined relate to the orders which are in the best interests of the child, the child, who was born in 2001.  The child is therefore now 15. 

4. The affidavit material filed by the mother sets out the arrangements that she is proposing to carry out by living in America with her new partner.  I now receive the affidavit of Mr C, supporting the material in the mother’s earlier affidavits about the proposals for the child and the mother to live in the United States with him.

5. I have already made orders that have directed that this matter be heard on an undefended basis because of the failure of the father to participate.  His indications in communications between the mother and the father that he would not be participating in these Court proceedings. 

6. That appears to be as a result of what can be described as his mental health issues and I take that into account also when considering the matters that are before me.  I am satisfied, due to the history of the matter and the significant mental health issues of the father, that it is appropriate, and in the child’s best interests, for the mother to have sole parental responsibility and that there is no appropriate basis upon which there should be any shared care or substantial and significant time spent by the child with the father.

7. The orders which are sought require me to take into account what is in the best interests of the child and consider all of the matters in s 60CC of the Family Law Act1975 (Cth) (“the Act”).

8. The child has been in the care of the mother almost exclusively most of her life and there have been ongoing past issues concerning the father’s health.  Notwithstanding the orders which were in existence some time ago, the child has not spent time with the father since early 2015, the evidence indicates, due to her anxiety about being in the company of the father, which I take to be entirely due to the father’s mental health difficulties.

9. Taking into account the child’s age, her wishes are also matters which are of significance. 

10. The factors which need to be determined as primary factors are the need to protect the child from harm and the benefit to the child of having a meaningful relationship with both of the child’s parents.  As far as protecting the child from harm is concerned, I am satisfied that the evidence indicates that there would be a risk of emotional and psychological harm for the child if she and the mother were prevented from living in the United States of America as they are requesting.

11. That is a significant factor.  Offset against that is the query as to whether there would be any benefit to the child of having an ongoing relationship with the father, bearing in mind his significant mental health difficulties.  I am therefore satisfied that balancing the factors between the risk of harm to the child and the alleged lack of benefit to the child of a meaningful relationship with the father clearly indicates that orders that the mother is seeking would be in the child’s best interests. 

12. I also have the affidavit which sets out, albeit indirectly, the conversations the mother has had with the child where she indicates that she wishes to live with the mother and her new partner in City D in the United States and that she is looking forward to that.  I am satisfied that, on this basis, that evidence can be accepted. 

13. In relation to the nature of the relationship with the child and the attitude of each of the parents to their responsibilities and their capacity to carry out their responsibilities as parents, the evidence all clearly indicates that the mother is the primary carer for the child, has the ability to provide proper care for the child and has, in the past done so.  Whereas due to the father’s mental health issues, there is significant concern about his capacity to provide for the child’s emotional and intellectual needs and probably any sort of practical needs.  There is also considerable issue about the father’s attitude towards his parental responsibilities.

14. Taking into account the child’s mature age.  Her wishes are significant. 

15. The arrangements the mother has made and the proposed arrangements for the child if she was given permission to move all point to the Court deciding that it is in the best interests for the child to move to the United States. 

16. I also take into account, as another relevant fact, that the mother was operating under the belief that the father would agree to the arrangement, has resigned her employment and wishes to move to take up her new role in United States of America in order for the child to commence the American school year in September 2016.

17. I am satisfied on the basis of all of the material before me that the orders that the mother seeks are orders which are in the best interests of the child, the child, and I propose to make those orders. 

18. The order made on 15 August 2006 relates only to children’s orders and so that can be discharged in full. 

19. Otherwise, the orders which are sought spell out the issues in relation to sole responsibility and the relocation.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 May 2016.

Associate: 

Date:  19 May 2016