Rowan and Penfold

[2008] FamCA 758

FAMILY COURT OF AUSTRALIA

ROWAN & PENFOLD [2008] FamCA 758

FAMILY LAW – CHILDREN – Relocation Australia to United States – Father resident in New Zealand – Enjoyed holiday contact – Child 14 – Mother separated from American husband who is father of their two children – Mother permitted to relocate

APPLICANT: Ms Rowan

RESPONDENT: Mr Penfold

FILE NUMBER: BRC 5913 of 2008

DATE DELIVERED: 18 August 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 18 August 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cooper, Barry & Nilssen, Brisbane, Qld

THE RESPONDENT: Appeared in person by way of telephone-link

Orders

1. That the child, L born … October 1993 (“the child”) be permitted to relocate with her mother to Dallas, Texas in the United States of America (“Dallas”) as and from 30 July 2008.

2. That the child spend time with the father in Christchurch, New Zealand:

   (a)From 21 December 2008 until 31 December 2008;

   (b)During the Northern hemisphere break of 2009 from 15 June 2009 until 10 August 2009;

   (c)From in or around December 2009, during the Northern hemisphere break (approximately 8 weeks) and Christmas school holiday period (approximately 10 days) until the child reaches the age of majority.

3. That the mother be responsible for the costs of the child’s travel from Dallas to Christchurch two times per year and that the father’s child support be applied by the mother towards the costs of the child’s travel.

4. That the father be at liberty to spend time with the child in Dallas as agreed between the parties.

5. That the child be at liberty to communicate with the father and mother by any means at all reasonable times.

6. That the mother ensure that the child maintains regular communication with the father, including telephone and/or email contact at least one per week.

7. Pursuant to s65DA(2) and s62B, 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5913 of 2008

MS ROWAN

Applicant

And

MR PENFOLD

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application that comes before the Court in relation to the living and care arrangements for a child of the relationship, L, born in October 1993.  L is one of two children of the relationship between the applicant and the respondent, the other is a child J, who is 17 years of age.  He currently resides in New Zealand with his father.

2. The parties separated many years ago and the children were primarily cared for by their father until a decision was made in the Family Court at Christchurch on 29 August 2006 which provided that the children could live with their mother and the mother be at liberty to relocate to Australia.

3. The judgment of Walsh J is attached to the affidavit of the wife filed on 30 June 2008.

4. The mother filed her application in this Court on 2 July 2008, although it is clear from the material before the Court that the mother's proposed move from Australia to Dallas in the United States of America had been the subject of correspondence between the solicitors for the mother and the father for some time and that, indeed, on 29 May the parties attended a session with Ms W, psychologist, for the purpose of engaging in a mediation to determine if the parties could resolve the issue.

5. They were unable to do so and the mother, through her legal representatives, then wrote to the father on 11 June reiterating her proposals, which included the mother's relocation to the United States with L in August of this year, and in that letter the proposals as to schooling and contact arrangements were outlined.

6. The father responded by email on 18 June, when he set out his opposition to the move and highlighted in particular in that correspondence that he had experienced difficulties in relation to past contact, both physical and by other means of communication, and raised his concerns about the financial inaccessibility of the United States.

7. In the correspondence from the mother's solicitors on 11 June, they made it clear that their client, the mother, was anxious to avoid litigation if possible, but that time was of the essence and sought a reply within seven days.  They concluded their letter of 11 June by saying, "In the event that a favourable response is not received within that period, our client will have no alternative but to make an application to the Family Court of Australia."

8. The father's reply of 18 June made it clear that the matter was not resolved between the parties and, subsequently, proceedings were instituted in this Court by the mother on 30 June 2008 and the application in a case was filed on 2 July 2008.

9. Efforts were then made to serve the father with copies of the process and I have to hand the affidavit of James Steel, solicitor, who set out the attempts to serve the father, including using a process serving agency.  The agents indicated that, from 14 July, employees of that service had been endeavouring to serve the father in Christchurch, which is the continuing place of residence of the father.  At 9.30 on 14 July, they attended at the residence and spoke with a young lady who confirmed that the father resided at that address and she also advised as to his place of employment.

10. The agents then attended and served papers at the place of employment on 17 July and, as is set out in the affidavit of Mr Steel, there were several attendances backwards and forwards with documents being taken, documents being returned and undertakings by various people at the father’s workplace to bring the matters to the attention of the father.

11. Eventually, those documents were returned but it is clear from the evidence that the father was made aware of the attempts at service on 17 July by his superiors at his workplace.  What also emerges from the affidavit of the process server is that, on 17 July, copies of all of the documents were, in fact, left in the letter box of the father on that day, and that on 18 July correspondence was sent to the father at the email address he had previously used.

12. It was only on Friday of last week the father wrote a letter to the Family Court directly saying he had only received recent notice of the proceedings and he sought an adjournment until 1 September.  During the course of these submissions, the father was to make reference to the affidavit material filed by the mother.  He said that he only recently opened his email.

13. I must say I am troubled by the suggestion that the father, knowing about the mother's proposal to move overseas, participating in a mediation process, receiving follow-up correspondence suggesting that, if the matter could not be resolved, proceedings would have to be instituted, and then have agents attend at his home who spoke to a lady in this house, and then have agents attend at his place of employment, would not have firstly received the documents that were placed in his letter box and/or would not have been sufficiently motivated to follow up when he heard that process servers were trying to serve him both at home and his place of work, and would then do nothing to ascertain what documents were available to be perused by him.  The propositions are improbable and the events surrounding this matter raise real issues of denial and avoidance.

14. I have little doubt that the father received the documents that were placed in his letter box.  It is really quite curious to think that a person would not check his letter box for a month and clearly these documents were there.  If the father did not open his letter box or did not have sufficient motivation, when he heard about the process servers attending at his place of work, to find out what these documents were, then the difficulties that flow from his failure to open his letter box or follow the matter up must necessarily rest with the father.  In any event, it is clear that he has had these documents for some time.

15. Because of the high stakes in this case for the mother, for the child L and for the father, and notwithstanding the father's failure to file any documents, the Court today has made the effort to contact the father personally so that he can be connected to these proceedings, so that he can be heard and he can apprise the Court of his concerns.

16. Essentially, they are those concerns, as I understand what he has to say, which he set out in some of his previous correspondence.  Those concerns are legitimate and understandable and, as I say, it is curious to me that the father has not more pro-actively sought to place that information before the Court in a proper way. 

17. It is legitimate that the father would be concerned about his daughter's schooling being disrupted at an important time.  His concerns are legitimate about the more problematic nature of contact, given the extra distance and cost involved in establishing and maintaining contact with his daughter in the United States.  It is a fact that, in the event of an unfortunate accident or illness, the prospects of being able to travel readily to America to be by his daughter's side are much more challenging, and I accept that the father has other commitments, family and financial and the like, that would make that more difficult.  I take the father’s concerns into account.

18. For her part, the mother says she respects the importance of the relationship between L and her father.  She says she has supported it in the past and would continue to do so in the future.  The father raises concerns about the history in that regard.

19. The mother does say in her sworn material that she reminds her daughter of the need to regularly contact her father at given times.  She says that it is not always easy to get L to follow through on these matters, no doubt with her other interests and commitments.  Of course, I am not in a position to judge the finer detail of these disputes between the parents, but one's own experience of teenage children leaves one in a position where I do not find the mother's explanations for some of the inconsistency in L's contacting her father as a fanciful or foreign proposition.

20. To me, the essential feature of this aspect of the case is that, on the accounts of each of the parents, L has a valued and ongoing relationship with her father.  Of course, that is a credit to her father's commitment, but it is also a credit to the mother and would suggest that the mother has actively supported L's relationship with her father.  Similarly, J was originally residing with his mother, and the Judge who heard the matter in 2006 which resulted in the children living with the mother in Australia, observed of the mother that she said that, should the children wish to return to New Zealand, she would not stand in their way.

21. J, apparently, has stated a preference to return to New Zealand and, notwithstanding that quite possibly and understandably, as the father has said, the mother was hesitant about immediately responding to that request, it is clear that eventually she did not stand in J's way and, as the father himself has said to the Court, J returned to New Zealand, took up residence with his father and pursued a trade, and I gather the father's relationship with J, like that with his daughter, remains important and valuable.

22. The mother has informed the Court that L has stated to her that it is her wish to accompany the mother and her half-siblings to the United States of America.  The father disputes that fact, although he has on occasions said he understands that a 14 year old girl might typically respond to the prospect of spending some time in the United States positively.  The father is also concerned that the child may have come under the influence of the mother in that regard.  At the end of the day, the father was invited to endorse the prospect of having L attend Court to advise an independent person of her stated wish.

23. I respect the father's decision not to place that pressure on his daughter and it is a prospect which I was only reluctantly contemplating for the very same reasons.  At the end of the day, on the available evidence, I proceed on the basis that it is L's preference.  She is only 14, so she does not decide these issues, but it is another matter I take into account.

24. I have taken into account the legitimate concerns and interests of the father.  I also take account of the legitimate aspirations of the mother.  Her husband has secured employment in the United States in his chosen industry.  Understandably, she wants to be with her husband, who is also the father of their two children and, no doubt, the two younger children would be missing their father and like to be with him.  I take those matters into account but, at the end of the day, it is L's welfare that I need to take primary account of.

25. The only information before me suggests that, notwithstanding the father's concerns about aspects of the non-physical contact being not to the required standard and not in accordance with the orders, that, in other respects, L has maintained a good relationship with her father and has continued to enjoy physical and non-physical contact with him.

26. Essentially, the most direct consequence of the mother's proposed move would be that the father's physical time with his daughter, in accordance with the mother's calculations, would be reduced from 94 to 73 days per year.  The reality is that the father and the children have, for the last two years, been living in different countries.  Granted, there is a vast difference between a three‑hour trip from New Zealand to Australia and a 20‑hour trip between New Zealand and the United States.  Granted, there is much more cost involved. 

27. The reality is that this is not a case where the level of contact between L and her father is being substantially changed.  The reality has been since 2006 the father's time with his children has been limited to school holiday contact.  The school holidays are different, northern hemisphere, southern hemisphere, and there would be less frequent contact, but a period of more extended contact.  Whatever be the case, whether it be 73 or 94 days, it is clear from the information I have that the father could not have holidays for the entirety of that time.  It was always going to be the case that L’s time would include time when her father is working, whether it be visiting from Australia or from the United States.

28. The extent to which the father may be experiencing problems with L being regular in her communication is, in my view, largely unaffected by the country from which that communication is sent.  Happily, these days there are many varied forms of regular communication and it is clear that both L and the father access emails and there is available written communication and telephone communication. 

29. The reality is, L is approaching 15.  The reality for both parents is that the nature of their relationship with their daughter is going to experience significant changes.  The reality is that children's focus, as they turn 14, 15, 16, moves outwards from their homes towards friends and, basically, parents have to fit in.  In many ways, they take what they can get and be thankful for it.  It is no longer a situation where parents can completely dictate to their teenage children on matters other than the essentials.  Obviously, children must attend school, they must look after their health, but the reality is, parents need to become more flexible to accommodate their children's growth, pursuits and interests.  Heaven forbid, L is probably soon going to start having boyfriends and the like, and as parents we all have to fit in. 

30. The time for prescription absolute in L’s life was probably in a state of flux anyway and, in my view, one of the important considerations in this case is that L needs, firstly, a good relationship with her father, and there is nothing that I have seen which would cause me to be concerned that that good relationship, which has survived 15 years of trials and tribulations, is suddenly going to vanish because of a change of location.

31. Another important consideration for L is the desirability of having the parent who is primarily responsible for her day-to-day care as reasonably happy and content as possible, so that she may be the most effective parent possible.  In my view, it is not in L's best interests to have a mother who is separated from her husband and required to live separate and apart from her husband who is her primary means of financial support and is her support in raising their children.

32. It is not in L's best interests to have a mother tied away from her husband to accommodate what is, it needs to be said, the more remote relationship which exists between L and her father, because of geographical considerations.  Whether it be a three-hour flight or a 20‑hour flight, the fact of the matter is L and her father do not live next to one another; the father has not visited his daughter in Australia in the two years she has been here.  That is not a criticism, that is just a reality.  The father’s travel to L’s country of residence has not been a feature of her life which is suddenly going to disappear.  The fact of the matter is that L and her father have enjoyed holiday contact over the last two years, and that is what they can continue to enjoy if L moves with her mother to the United States of America.

33. For all of those reasons, having regard to L's preference, the mother's legitimate concerns and aspirations, and notwithstanding the legitimate concerns raised by the father, I take the view that the mother and L should be free to relocate to the United States and that the father should have the contact proposed by the mother as set out in her application filed on 2 July 2008 and at such other reasonable times as may be agreed.

34. I note, and I took into account in the course of these reasons, that the mother has proposed in the orders sought by her, that she be responsible for the costs of the child's travel from Dallas to Christchurch two times per year, so that the mother is, in that sense, relieving the father of the previous burden upon him and accepting that, as part of the price she has to pay for being permitted to relocate to Dallas, she has to meet those costs.

35. In all the circumstances, I make orders in terms of the application in a case.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: