The Appeal of the Relocation of a Child to Serbia Following an Internet Relationship
Amador & Amador [2009] FamCAFC 196; (3 November 2009)
The court allowed the mother permission to relocate the child to Serbia, with orders for the child to return to Australia each year to spend time with the father, despite the potential for a loss of relationship between the child and the father.
Facts:
The parents were married in Belgrade in 2004 following an internet relationship. The father returned to Australia shortly after the marriage, while the mother stayed in Belgrade until 2007 to give birth to the child. The couple separated in 2007 and the mother has remained in Australia since then. The father was granted interim orders in 2007 for the child to spend time with him, and the mother was granted sole parental responsibility with permission to relocate the child to Serbia.
The evidence revealed that there were good services available in Serbia for the child's mild to moderate global development delay and autism spectrum disorder. The court was also aware of the potential for a loss of relationship between the child and the father if the child was to go to Serbia. Ultimately, the mother was granted permission to relocate the child to Serbia, with orders for the child to return to Australia each year to spend time with the father.
An appeal was lodged on the ground that her Honour relied upon evidence contained in a document which had been objected to in the initial stages of the hearing. At that time her Honour made it clear she could not, and would not, rely on the contents of the document as evidence of the truth of its contents.
Issue:
Whether or not the appeal should be granted.
Applicable law:
A v A (1998) FLC 92-800 - provides that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child.
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 - provides that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Re W (Sex abuse: standard of proof) [2004] FamCA 768; (2004) FLC 93-192 - where the Full Court (Baker, Kay and Morgan JJ) examined the application of the principles set out in M and M to a situation where the trial judge had found that the father had sexually molested both his step-daughter and his own daughter.
Analysis:
In the submissions made on behalf of the mother it was suggested that the father could have called expert evidence in relation to the child’s autism, treatment and prognosis. If it is thus asserted that the father should have called evidence from an expert in relation to the services available to autistic children in Serbia, we would reject that submission. It was the mother’s proposal that she and the child live in Serbia, and it was thus her primary obligation to provide evidence which would support her case.
The learned Federal Magistrate was very much alive to the prospect that the relationship between the child and his father would probably be substantially lost if the child returned to live in Serbia with the mother. Her Honour made it clear that she understood it was unlikely the father would be able to reside in Serbia and further, that his financial circumstances were such that it would be unlikely he could visit Serbia more frequently than every second or third year. The evidence further established that the amount of child support being paid by the father was not a large sum of money but rather $2,400 per annum. Her Honour had evidence as to the cost of airfares to Australia. Her Honour was entitled to reach a conclusion that on the balance of probabilities, the mother would be able to travel to Australia with the child on a yearly basis.
Conclusion:
The appeal was allowed and the orders made by Federal Magistrate Henderson on 23 December 2008 were set aside. The applications were remitted for rehearing in the Federal Magistrates Court of Australia before a magistrate other than Federal Magistrate Henderson. Costs certificates were granted to both the appellant father and respondent mother pursuant to the provisions of the Federal ProceedingsCosts Act 1981Cth). Both parties were also granted a certificate for costs in relation to the new hearing granted by the orders.
Case: AMADOR & AMADOR [2009] FamCAFC 196
Judgment of: May, Coleman and Le Poer Trench JJ
Counsels:
COUNSEL FOR THE APPELLANT: Ms Snelling
SOLICITOR FOR THE APPELLANT: Macarthur Law Group
COUNSEL FOR THE RESPONDENT: Mr Harper
SOLICITOR FOR THE RESPONDENT: Jennifer Weate & Associates