Denham & Newsham [2021] FamCAFC 141

The father in this case successfully appealed against orders made by the Family Court of Australia in April 2020, including an order permitting the mother to relocate to her native Belgium with the parties’ three-year-old child from 2022, by which time the child would be five and a half years old.

The father’s appeal succeeded on three main grounds:

• The trial judge had not properly considered and weighed the evidence of the single expert psychologist family report writer;
• The trial judge had erred in respect of findings about the father’s ability to afford the cost of contact internationally; and
• The father’s application to present new evidence of the impact of border closures and international restrictions in response to the COVID-19 pandemic since the orders were made.

The evidence of the single expert psychologist

The single expert gave evidence at trial that the international relocation of such a young child “poses a very real risk to the parent/child relationship fracturing even when the parents’ intentions…are otherwise”. The expert was of the view that the now “secure and loving” relationship between the child and the father could be watered down and the father risked becoming nothing “more than a distant relative” if the mother moved to Belgium. During the trial, the expert expressed the opinion that it wasn’t until the age of “8 or 9 that [children] start to really be able to…have memories that can sustain”.

Whilst the primary judge accepted the single expert’s opinion that relocation should not take place until the child was older, the Full Court observed the single expert’s evidence went further than that in circumstances where the expert had suggested that if relocation took place prior to the age of eight or nine, “there was very real risk the child’s relationship with the father would fracture”. The Full Court determined that this evidence “was of signal importance to the central question” and the trial judge’s failure to explain why this evidence was not accepted, or to explain why more pressing aspects of the child’s welfare weighed in favour of relocation, amounted to an error.

Practicalities of contact

The orders made by the trial judge provided for the child to spend time with the father in Belgium on three occasions per year, and for the child to travel to Australia for an additional period in alternate years – resulting in the father and child spending seven weeks together one year and nine weeks the next.

The father was a self-employed craftsman, who worked alone from rented premises where he also lived.

The Full Court found matters highly relevant to the father’s capacity to meet the cost of time with the child at the frequency and for the duration ordered did not receive the close analysis demanded of the trial judge, including the financial consequences of the father having to close his business for the time he was abroad and when the child visited him at Christmas.

Application to adduce further evidence –COVID-19 impact on international travel

Significantly, the Full Court permitted the father to adduce new evidence on appeal, comprising various documents issued by the Australian Department of Home Affairs and similar documents issued in Belgium, as to the restrictions placed on international travel in response to the COVID-19 pandemic.

The Full Court observed:

At the time of the trial, the COVID-19 pandemic had not commenced and no one contemplated the health disaster that would unfold. There was no restriction on Australian citizens’ ability to freely travel between Australia and, relevantly, Belgium. Both these country’s borders were open and the trial proceeded on the understanding that the parties and child would be able to move freely between them.

The evidence adduced by the father established that he and the child were prohibited from leaving Australia unless given permission. The Full Court noted the circumstances for which permission might be granted “does not obviously identify travelling to spend time with a child who lives abroad” and would require the father to apply to travel on compassionate or humanitarian grounds. The Full Court further observed that on the assumption the father obtained permission to travel as often as the orders provided (which the Full Court was unwilling to assume), he would be required to quarantine at a designated facility on his return for 14 days on each occasion, at his cost, and this would see him unable to work for an additional six weeks annually.

Belgium had also banned non-essential travel for non-citizens, which would require the father to obtain permission to gain entry to Belgium, including for “compelling family reasons”. The Full Court noted that even if the father was given permission to enter Belgium, the evidence established “the situation is fluid and the conditions are subject to change”. The father might also be required to quarantine on arrival in Belgium. The mother and child would also likely have to quarantine for 14 days in the alternate year when the child travelled to Australia to spend time with the father. The new evidence adduced also included government advice that the availability of regular air travel should not be assumed and that flights have reduced.

The Full Court relevantly held that:

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.

Decision

The Full Court determined the decision reached by the trial judge was “unsustainable” for the above reasons, particularly given the further evidence adduced by the father, which it found “in and of itself” required a rehearing of the matter. The relocation order was set aside and the matter was remitted for rehearing by another judge.

Denham & Newsham [2021] FamCAFC 141