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Children – Court failed to reconcile its order for the relocation of a three year old child to Belgium with single expert recommendation that relocation not occur until the child was nine – Further error where orders for paternal time did not contemplate pandemic- related travel restrictions

In Denham & Newsham [2021] FamCAFC 141 (6 August 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) considered a decision of Carew J to permit the mother to relocate with the parties’ three year old from Australia to Belgium from March 2022.

The hearing occurred in February 2020 before “the COVID-19 pandemic … commenced and no one contemplated the health disaster that would unfold. There was no restriction on Australian citizens’ ability to travel freely between Australia and, relevantly, Belgium. Both these countries’ borders were open and the trial proceeded on the understanding that the parties and child would be able to move freely between them” ([8]).

The orders included provision for the father to travel to Belgium at least three times a year and that the child would return to Australia during the Australian summer each year, the Court finding that such arrangements would maintain a meaningful relationship between the father and child ([3] and [8]).

The appeal was based upon the single expert psychologist’s recommendation that relocation not occur, or if it did, that it occur when the child was “much older” ([27]); the father’s evidence at trial that he could not afford the costs of travel; and that the orders did not contemplate the logistics associated with the Covid-19 pandemic.

The Full Court said (from [28]):

“[The single expert psychiatrist] …   gave evidence that the child was too young to sustain significant separations from his father …

( … )

[30] [The expert answered] … questions about a child’s capacity to form memories and the age at which a child might be expected to sustain memories and connection to an absent parent. …

[31] This is powerful evidence which weighed against relocation and, if relocation was contemplated, that it should not take place before the child was eight or nine years of age. If it did there was a very real risk that the child’s relationship with the father would fracture. …

( … )

[34] It can be seen that … the primary judge accepted the single expert’s opinion that relocation should not take place until the child was older and had acquired the developmental capacity to cope with significant gaps between face-to-face contact with the father. …

[35] However, the single expert went further than to simply recommend that relocation not take place immediately and did not give evidence that the child would develop the memory capacity to sustain significant gaps of contact if there was an additional two years of regular contact with the father before relocation. Her evidence was to the effect that he would not and if the relocation proceeded before the child developed that capacity there was a real risk that the child’s relationship with the father would fracture and thus relocation should not be considered before the child was eight or nine years of age. This evidence was of prime importance to the father’s case. Even if it was not, it was of signal importance to the central question and had to be considered. Thus as Muldoon [ed. full citation: Muldoon & Carlyle [2012] FamCAFC 135] makes plain, if the primary judge determined that for whatever reason this evidence should not be accepted, it was necessary to explain why not. Alternatively, to show that it was accepted but to explain why other more pressing aspects of the child’s welfare meant that notwithstanding the damage which would be wrought to the child’s relationship with the father, relocation was in the child’s best interests. This did not occur and the challenges … against the approach taken to the single expert evidence have been established.”

After also finding that the Court had “incomplete consideration” of the father’s financial circumstances when ordering paternal time that necessitated air travel, the Full Court said (from [48]):

“ … [The] evidence established that Australian citizens (the father and the child) and permanent residents are prohibited from leaving Australia unless they are given permission. The list of circumstances which might secure permission does not obviously identify travelling to spend time with a child who lives abroad. The only category which might apply is for travel on compassionate or humanitarian grounds. On the assumption (which is not made) that the father obtained permission to travel as often as the orders provide, on return he must quarantine at a designated facility in his port of arrival for 14 days. The cost of quarantine would be his responsibility. Thus, the father would be unable to work for an additional six weeks annually.

[49] The Australian government advises against travel to Belgium and Belgium has prohibited non-essential travel for persons whose primary residence is located in another country. This ban applies to the father and requires consideration of the types of travel that are regarded as essential. The list includes travel for compelling family reasons and it is inferred that provided the father satisfied health requirements, he may be given permission to enter Belgium. However, as the documents issued by both countries demonstrate, the situation is fluid and the conditions are subject to change. Depending on the state of the pandemic, relevantly, in Australia, on arrival in Belgium the father might be required to quarantine.

[50] Furthermore, assuming that the mother and child were given permission to enter Australia they must quarantine on arrival for two weeks.

[51] Returning to the documents issued by the Australian Department of Home Affairs, these record that the availability of regular air travel should not be assumed and, in effect, that flights have reduced.

[52] Had this evidence been placed before the primary judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face contact between the child and the father if the child lived in Belgium would be no more than mere speculation. In other words, the Court could not be satisfied as to when, how and with what frequency the child and the father might see each other. This in turn undermined the findings to the effect that the child and the father would maintain a meaningful relationship if the child moved to Belgium in 2022.”

The orders for relocation were set aside and the matter was remitted. Parenting orders were made pending the re-hearing.

 

Property – Creditor of a discharged bankrupt has standing to bring section 79A application

Property – Wife’s case as to an equitable trust was not governed by her Points of Claim document where no Points of Defence document was directed to be filed, nor filed by the husband or third party respondent

Property – Where a valuer has provided a range of values, the court is free to form its own view as to the proper value of an asset

Children – Chronology simply an aide, not evidence – Father’s criticisms of independent children lawyers’ chronology insufficient to justify their removal

Property – Registered arbitral award varied to facilitate payment of a costs order

Children – Held that mother’s opposition to vaccination was based on genuine but unreasonably held beliefs – Father awarded sole parental responsibility as to immunisation and vaccinations