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MOTHER FILES AN APPLICATION TO RELOCATE TO THE UNITED STATES WITH HER DAUGHTER

Hamstra & Rewi [2020] FCCA 3108 (20 November 2020)

This is an application filed by the mother seeking to relocate with her child to the United States where her new husband presently lives.

Facts:

The applicant mother seeks to relocate with X to United States of America, where her husband (Mr. C) presently lives.  The respondent father who lives in New Zealand, seeks that X stay in Victoria with her mother. This is because, as he sees it, his relationship with X will be significantly diminished if X relocates to the United States.  The Independent Children’s Lawyer essentially supports the position of the mother.

Counsel’s mother emphasised that the mother was keen to ensure that the child continued to have a relationship with the father and the paternal family. The mother was prepared to pay airlines fares and facilitate school reports and photographs for the father.

Issue: Should the court grant the relocation of child X?

Law:

  • Family Law Act 1975 60CC

Analysis:

All parties agree in principle that it is desirable that X have a meaningful relationship with both of her parents.  Despite some historical concerns of domineering and aggressive behaviour on the father’s part, there is nothing in either parties’ position that suggests that there is any need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence (section 60CC(2) (b)).  Indeed, the mother’s proposal for time implicitly presumes that X will be safe and well in the father’s care. It should be noted that the father’s position (he has not filed the response) is essentially confined to opposing the application to relocation.

The mother has what has been described as a job opportunity of a lifetime and it seems likely that she will be able to let her financial position be substantially improved by the move to the United States. The father says, however, that she should not go because in essence, it is inconvenient to him.  This reluctance on his part is, of course, perfectly understandable but it reveals a measure of self-focus in any event.  Furthermore, the fact is that he has not spent all that much time with X since he moved to New Zealand. His suggestion that Mr C move to Australia, flies in the face of Mr C’s uncontradicted evidence as to his earning capacity in the United States and its obvious lesser opportunities are in Australia.  This evidence was given cogently and is in any event, only common sense.

In circumstances where the economic future of the couple will be so greatly enhanced, it ultimately beggars common sense to suggest that this should be prohibited.  It should be remembered that the mother does not have to prove compelling reasons why she wishes to move.  The overarching consideration is X’s best interests, that is what is at the forefront of the court’s thinking. The mother will be devastated if she is unable to re-join her husband and to take up the job opportunity of a lifetime.  In truth, the father’s time with the child will be only enhanced because it will involve court orders that will be complied with (America is after all, a Hague Convention country itself) and in the court’s view, although puts the matter shortly, the application to relocate is in the court’s view, irresistible.

Conclusion: The mother is permitted to relocate with the child.

 

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