Blaney and Hutchins

[2018] FamCA 844

FAMILY COURT OF AUSTRALIA

BLANEY & HUTCHINS [2018] FamCA 844

FAMILY LAW – CHILDREN – Relocation – Whether the mother should be permitted to permanently relocate overseas with the child – Where the mother had been permitted to relocate overseas with the child for 10 months immediately prior to the hearing – Where the child is diagnosed with autism – where there is a high conflict relationship between the parents.

Family Law Act 1975 (Cth)

APPLICANT: Ms Blaney

RESPONDENT: Mr Hutchins

FILE NUMBER: SYC 1793 of 2008

DATE DELIVERED: 22 August 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 1, 2, 3  August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. All prior parenting orders are in this matter are discharged.

2. Ms Blaney (“the mother”) have sole parental responsibility for T (“the child”), born … 2007, in relation only to matters involving the child’s education and health.

3. The mother and Mr Hutchins (“the father”) otherwise have equal shared parental responsibility for the child.

4. Whenever the mother is required to make a decision about an import change in relation to, or aspect of, the child’s education she is to notify the father by email of her proposal and her reason for such proposal. The father, should he so wish, may respond to the email, provided he does so within seven days and if he does so respond the mother is to take into account what he has to say before actioning the particular aspect of change to the child’s education.

5. Whenever the mother is proposing to cause some significant change involving an aspect of medical care or health for the child she is to first advise the father of her proposal and she is to consider what the father says in response, provided the father responds within seven days of the notice he receives of the mother’s proposal. This order does not operate to prevent the mother making a decision for the child in case of an emergency.

6. In relation to all other aspects of the child’s long term welfare where either party is proposing a change or development for the child, the parties are to confer in a respectful manner and they are to attempt to reach a decision. Both are to give importance to any stated views of the child on the subject.

7. The child is to live with the mother at all times when he is not living with the father, or spending time with him, as provided for in these orders.

8. The mother is permitted to remove the child from Australia for the purpose of having him reside with her in City J, Country K.

9. The child is to live with the father as follows:

   (a)During two periods of 14 consecutive days in Country K, unless otherwise agreed to. One of those periods is to fall within a school holiday period for the child. The other is to be outside of a school holiday period and to fall within the first half of any school term for the child.

   (b)For one half of the long school holidays for the child. Such time to occur in Australia.

10. For the purpose of the father exercising his time with the child in Country K as provided for in order (9)(a) hereof the following is to take place:

    (a)The mother is to provide to the father forthwith, the dates of the child’s school terms for the remainder of the 2018 school year and the 2019 year as soon as they are made available to her by the school or published on the schools web site. The mother is to thereafter continue, in following years, to provide the father with as much notice of the dates of school terms for the child as she ascertains same herself.  

    (b)The father is to give not less than two calendar months’ notice, in writing (email is sufficient), to the mother of the dates he will be in Country K to exercise that time with the child.

    (c)The father is to nominate to the mother (not less than 48 hours before the commencement time on each occasion) the time and address at which the child is to be delivered to the father at the commencement of any such period and the time and address at which the mother is to collect the child at the conclusion of such time. Such address is to be in City J, Country K unless the parties otherwise agree in writing before the particular occasion.

    (d)Upon arrival in Country K for each occasion of time the father is to spend with the child, the father is to text or email the mother and confirm he has arrived.

    (e)The mother is not permitted to arrange for the child to be delivered to or collected from the father by taxi or hire car or Uber or equivalent such that he is unaccompanied by an adult. The mother is to ensure that the child is to be accompanied upon such travel either by herself or by an adult who is well known to him.

    (f)The father is to be responsible for meeting his travel costs to and from Country K for the purpose of his spending time with the child in Country K.

    (g)The parties may agree in writing for a school holiday period of 14 days to be spent in Australia at Christmas time. In the event of such agreement being reached on any occasion the father is to fund one half of the airfare for the child travelling economy class or equivalent. The mother to transact the purchase of air travel for any such occasion and the father is to send her his share of the cost of the child’s air fare to the mother no later than 28 days before the proposed travel.

11. For the purpose of order (9)(b) hereof the following provisions are to apply:

    (a)The parties are to agree upon the dates the child will live with the father in Australia. The process for reaching agreement will commence with the father nominating, in writing, the dates he seeks. Such notice to be given not less than four calendar months before the school holiday period is scheduled to commence.  The mother is to respond within seven days of receipt of the fathers’ proposal. If the parties have not agreed within 21 days of the father’s first proposal then the father is to have the first half of the long school holiday period in years ending in an uneven number and the second half in years ending in an even number.

    (b)The mother is to be responsible for meeting the expense of travel for the child to Australia and return.

    (c)The mother is to either accompany the child to Australia for the forward portion of his journey or alternatively arrange for an adult, well known to the child to accompany him.

    (d)The mother may, at her option, elect in writing to the father to accompany the child on his return trip to Country K at the conclusion of his time with his father in Australia. If the father has not received confirmation from the mother three months before the child is to travel to Australia for that time, then he is to be responsible for providing an adult, well known to the child, (the father to meet the travel expense for that adult) to accompany him on his return trip to Country K. The father is to advise the mother in writing well before the intended date of travel who the accompanying person will be.

    (e)At any time in the future, should they find an airline willing to transport the child unaccompanied, then, if the parties agree in writing, the child is to be permitted to travel to and from Australia unaccompanied.

12. The father is to have Facetime or phone time with the child on Sunday at 10.00 a.m. City J time and on Wednesday at 8.00 p.m. City J time. The father is to make the call to the mother’s mobile phone number or any other phone number which the mother supplies (by written notice emailed to the father) which enables calls to be conducted using the “Facetime” facility.

13. For the purpose of order (12) hereof the mother is to ensure the child has access to any electronic communication equipment necessary for him to participate in the Facetime or phone time which has been ordered. There is to be sufficient internet connectivity (should it be required) for the relevant device provided by the mother to permit a conversation of not less than 30 minutes of communication (on each occasion), should the child wish to communicate with his father for that duration.

14. The father is to have email communication with the child as he and the child so desire. To that end the mother is to provide to the father, within 14 days from the date hereof, an email address which the child can see is his private email address and the mother is to provide a computer facility and internet access, within the residence shared by the child and the mother, which is available for the child to use to communicate with the father. The mother is to ensure the child accesses his email account (including assisting him to do so) on not less than one occasion each week. The mother is further to encourage the child to respond to any email received from his father.

15. The court notes that the mother provided to the court during the hearing the address of the property at which she and the child will reside in City J. The address is: Y Street, … City J. Should the mother change the residential address for the child or the site/place at which he mainly spends overnight time, she is to forthwith notify the father of that address.

16. The mother is to permit and facilitate the father sending correspondence, presents or the like to the child, should he so desire, by post, courier or any other like process.

17. The parties hereto may vary or modify any of the provisions of these orders provided same is evidenced in writing.

18. Wherever these orders require communication between the parties to be by writing, same may be achieved by use of email between them. Each party is to keep a hard copy of any written agreement achieved and same is to be attached to a copy of these court orders for easy reference.

19. The Court notes that the mother has made it clear to the Court that she does not want any personal contact with the father. To that end the Court recommends the father refrain from attempting to communicate with, or meet face to face with the mother unless specifically invited to do so by the mother. The Court further recommends the father comply with the recommendation contained herein even if his intention is founded upon the best interests of the child.

20. At all times when the child is in communication with his father by Facetime or other electronic or telecommunication means the mother is to ensure he is afforded privacy.

    SPECIAL OCCASIONS

21. Unless the child is in Australia spending time with the father on Christmas Day or on the child’s birthday then, the father is to have Facetime contact with the child on Christmas Day at 8.00 p.m. City J time AND on the child’s birthday at 8.00 p.m. City J time.

    DRUG TESTING

22. For the next two (2) years, and in a window of time between 21 days and 14 days prior to the father travelling to Country K to spend time with the child pursuant to these orders, he is to undertake drug testing by urinalysis, for cannabis metabolites. The testing is to be conducted so as to ensure “chain of custody procedure” is achieved. The result of such testing is to be emailed to the mother no later than five days before any period of time the father is scheduled to spend time with the child in Country K.

23. In relation to the time the father is to spend with the child in Australia, the father shall, in a window of time between 21 days and 14 days prior to the father being scheduled to commence such time with the child, is to undertake drug testing by urinalysis, for cannabis metabolites. The testing is to be conducted so as to ensure “chain of custody procedure” is achieved. The test results from such testing is to be emailed to the Mother no later than seven days prior to the commencement of the time the child is to spend with the father.

24. In the event of the father not providing the drug testing results to the mother as required by order (22) or (23) hereof, for any period of time he is to spend with the child in Country K or Australia, then such time, for that occasion only will be suspended.

25. In the event of the father providing a drug testing result to the mother, in relation to a period of time he is to spend with the child in Country K, AND that result is positive to cannabis, then that particular period of time will be suspended UNLESS the father is accompanied by his mother, who is to be present with the father and the child during that particular period of time. Should it be the case that the father’s mother is accompanying the father on such an occasion the father is to email the mother and inform her of same and he is to ensure his mother is present in Country K at the commencement of such a period of time so the mother may see and speak to her if the mother so desires.

26. In the event of the father providing a drug testing result to the mother, in relation to a period of time he is to spend with the child in Australia, AND that result is positive to cannabis, then that particular period of time will be suspended UNLESS the father is accompanied by his mother, who is to be present with the father and the child during that particular period of time. In the event that the father is proposing to exercise the time with the child in Australia, as provided for in these orders and under the circumstance of having provided a positive drug testing result to the mother for that occasion, then he is to firstly include in an email to the mother, an acknowledgement by his mother (by email is sufficient or by scanned document), that she is available to spend the time with the father and the child and that she will do so. FURTHER he is to ensure his mother is present at the delivery of the child to the father at the commencement of such a period of time so the mother may see and speak to her if the mother so desires. FURTHER the father is to ensure the mother has telephone contact details for his mother and that his mother has telephone contact details for the mother during any such period. Should his mother not be available throughout the whole of the period for any reason the father is to advise the mother of that circumstance and return the child to the mother’s care during any such period of absence, if the mother so desires.

27. In the event of the father providing a positive drug test result for any period of time the child is to spend with him in Australia during the 24 month period required by these orders, AND then fails to provide the information to the mother that his mother will be present during such period of time then the order requiring the mother to deliver the child to Australia for that particular occasion is suspended.

28. For the purpose of these orders the father is to provide the mother with the email address (if there be one), residential address and telephone number for his mother so that the mother can contact his mother to ensure she will be present with the father during any time she is required to be present for the purposes of these orders.

29. The father is to ensure his mother is provided with a copy of these orders. Further, the Registrar is to forward to the father’s mother a copy of these orders by ordinary post.

30. Should the mother fail to comply with any of the orders herein contained OR should the father require a further order from this Court in order to assist with a request to the Australian Central Authority to ask the Country K Central Authority to pursue, on his behalf, any available remedy under a relevant United Nations Convention or otherwise, the father has leave to apply to the court on 24 hours’ notice to the court.

31. The registry manager is to cause all material produced to the Court in answer to a subpoena issued in this case to be returned to the entity producing same.

32. The matter is now concluded and is to be removed from any list of active cases maintained by the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blaney & Hutchins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 1793 of 2008

Ms Blaney

Applicant

And

Mr Hutchins

Respondent

REASONS FOR JUDGMENT

Introduction

1. The child, T, is the eleven year old son of the parties. He has been diagnosed with autism. Fortunately for the child it seems he is considered “high functioning”. Nonetheless, it is common ground that the child has experienced difficulty in integrating to main stream school life. He has had the benefit of a teacher’s aide support worker assisting him at the Suburb F Public School until August of 2017. After a difficult start in school in Country K, where he has lived with his mother since September 2017, the mother has engaged the services of a support worker exclusively to assist the child in school in City J Country K. The support worker attends upon the child for approximately two hours per day on four days of the school week.

2. Although it is axiomatic to observe that children suffering from autism need additional and special support from their parents and the broader community, this case demonstrates the tragedy which is manifested when an autistic child has to cope with separated parents who have a very poor regard for the other as either a parent or a human being.

3. In order for the child to achieve all that he might in life, he needs two very actively attentive parents who support each other’s efforts to support and demonstrate to the child a good working relationship which is respectful of the other parent, and the need the child has to be able to move between them without being exposed to parental conflict.

4. As will be seen later in these reasons, even on the eve of this hearing, these parents were unable to shield the child from behaviour on their part which had the potential to trouble and distress him.

BACKGROUND

1. Before the court is an application filed by the mother Ms Blaney (“the mother”) seeking a raft of parenting orders the most controversial being that she and the parties’ child the child continue to live in Country K where they have lived since September 2017. On 21 August 2017 McClelland J delivered a judgment and made orders as follows:

   (1)Subject to order 2, the mother be permitted to travel overseas with the child T born … 2007 (“the child”) to Europe for a period of 10 months from 1 September 2017.

   (2)Prior to the mother travelling to Europe, the mother pay the amount of $15,000 to the father to facilitate the father spending time with the child in three block period of time in the 10 month period..

   (3)The mother facilitate the child having liberal Skype communication with the father during the period that she is in Europe.

   (4)The mother inform the father of relevant matters in respect to the child’s health and education, including causing the father to be provided with the child’s school reports.

   (5)The mother facilitate the child spending at least 3 periods of time with the father in the 10 month period commencing 1 September 2017, being two periods of approximately 13 days and one period of approximately 14 days. 

   (6)The orders made on 3 December 2010 are suspended to the extent to which they would prevent the mother travelling overseas with the child for a period of 10 months in accordance with the above orders. 

1. The father Mr Hutchins opposes the orders sought by the mother and he proposes that the child live with him in Australia.

2. Each of the parties tendered at the hearing a minute of the orders each sought. The mother’s minute was marked as exhibit M1 and the father’s minute was marked as exhibit F1. Each sought a raft of parenting orders which I have read, considered and had in mind when formulating the orders I will make. For the sake of brevity I do not set out each party’s proposed orders.

1. The mother during her oral evidence informed the court, when asked by me, that should the court conclude that the child is to remain in Australia, in her care or otherwise, she would be unable to stay in Australia for a number of reasons, not the least of which was her psychological health. She also anticipates she would experience difficulty obtaining a suitable job in Australia because she would be seen as not committing herself to an employer. She says if she was to return to Australia she would have to terminate the employment she now has in Country K having only commenced that employment in the second half of last year.

2. T, born in 2007, is the parties’ only child. As will be seen in the reciting of the evidence in these reasons, he has been challenged in life with the conditions of ADHD and autism spectrum disorder.

3. The father asserts that he and the mother commenced a relationship in April 2004 and separated on a final basis in June 2007. The mother claims she and the father had an “on and off” relationship for a number of months.

4. These parties commenced litigation in this court in March 2008 when the father filed an application for parenting orders. Final orders were made by Justice Fowler on 3 December 2010 providing for the child to live with the mother and for the child to spend time with the father on alternate weekends and one evening in the other week and for block periods during the school holidays. The orders also gave the mother sole parental responsibility with respect to the child’s education and heath, and the parents otherwise had equal shared parental responsibility with respect to all other matters.

5. On 24 August 2015 the mother filed an Initiating Application seeking that she be permitted to relocate overseas with the child. That application was dismissed on 7 December 2015 as neither party appeared at the first return date.

6. The mother filed a further Initiating Application on 23 February 2017, again seeking to relocate to Country K with the child. It is that application which falls to be determined. The father has not filed a Response but has filed numerous interim applications seeking to have communication with and spend time with the child.

7. On 21 August 2017 orders were made permitting the mother to travel with the child to Country K for a period of 10 months from 1 September 2017. Those orders are set out earlier in these reasons.

8. The mother travelled to Country K with the child on 31 August 2017 and returned to Australia on 13 July 2018. The child was enrolled in the English School of City J and attended school during this period.

9. On 12 March 2018 further orders were made for the father to spend time with the child in Country K between March and April 2018. It was also ordered that the mother facilitate Skype or FaceTime communication between the child and his father each Sunday and Wednesday.

10. It is part of the father’s case that the mother has contravened the court orders in relation to his time with the child, both face to face time and electronic communication. He submits that the court should not trust the mother to either comply with any parenting orders nor to encourage and support his relationship with the child. It is part of his case that the mother exhibits a “superiority attitude” (my words not his) to the father because she has the capacity to obtain and hold down executive positions which require high intellect. The mother currently is employed in finance. She is employed in Country K and travels with work within Europe. She is paid a significant wage.

11. The father raised a complaint of procedural unfairness to him because I allowed the mother to rely upon (i.e. to tender) annexures to earlier affidavits she had filed in this proceeding and to also read a portion of an affidavit she had filed at an earlier time, in addition to her trial affidavit. The father informed the court that although being self-represented in the trial he had spent $20,000 on legal fees preparing for the trial, including the preparation of his trial affidavit and the obtaining of documents he tendered to support his case. He said he had understood each party would be restricted to being able to rely only upon their trial affidavit.

12. As will be seen at the conclusion of these reasons I am compelled to make orders which see the child continuing to live in Country K with the mother. If it had not been the case that the child has special needs, due to his condition diagnosed as autism and ADHD, I would have comfortably concluded the child should live predominantly with the father in Australia.

13. During the hearing and the reading of the evidence the mother has relied upon, I have formed a number of adverse views/conclusions about the mother as a person and as a parent. However, it must be said that to date, she has achieved a result with the development of the child, significantly on her own, which stands him in good stead for his future.

14. I am satisfied the child is now largely settled in his environment in City J, including in an accommodating school where he is showing improvement in behaviour and academic progress, albeit that in his academic progress he is probably well behind his age group achievements.

15. I am satisfied that for the child his father is a very significant and important person in his life and for whom he holds great affection. It will be important for his development that he has all reasonable opportunities to be able to spend face to face time and electronic forms of time with his father. The ability to facilitate face to face time with the child is hampered only by the father’s need to work to support himself and fund travel to and from Country K.

Evidence

Evidence of the mother

1. The mother relied on her trial affidavit sworn 16 July 2018.

2. The mother gave evidence in relation to the child’s ADHD and Autism. He takes regular medication for his ADHD and a daily vaccine for his asthma. The child has completed Year 5 at the English School of City J, which is a mainstream English-Country K school. The mother has organised one-on-one support for the child at the school and for him to attend upon a psychologist and a developmental paediatrician. 

3. The mother deposed that the father spent time with the child in Country K from 6 January 2018 (I note the father has a considerable complaint about the mother not providing the time he ought to have spent with the child on that occasion. I will refer to his evidence about that later in these reasons).  On 9 January 2018 she deposed that he attended the child’s school and told them of the litigation occurring in this court.

4. On 22 January 2018 the mother deposed that she was referred to the Country K Social Services Department by staff at the child’s school. She believes this referral was based on allegations which the father made to the child’s school, when he attended to speak to the school authorities earlier in January this year. The mother attended an interview with the Country K Social Services on 22 February 2018. (I note the mother in her oral evidence conceded she had not provided the school with all relevant information about the child’s autism and ADHD conditions, at the time of seeking enrolment, because she thought the school would not accept his enrolment).

5. On 22 March 2018 the mother attended a meeting with the child’s tutor, his Country K teacher and the school counsellor. They formulated and agreed upon strategies to help the child fit in at school and progress academically. The mother annexed to her affidavit a copy of the child’s school report for the second portion of his school year.

6. The child’s school report indicates the child is struggling with the Country K language and has difficulty with reading and mathematics. The child’s teacher reported, “[The child] requires a great deal of support in the classroom, both academically and emotionally.” She also reported:

   [The child] has been more settled this term, though he still has difficulty communicating effectively when he is upset. He is beginning to understand more social norms and he is more willing to listen and accept his own errors and those of his peers. Nonetheless there are many strategies that [the child] lacks and would greatly benefit from in his social interactions were he to be helped by a professional therapist who can aid him to acquire those essential skills.

7. On 21 June 2018 the child received his final school report for the year (the Country K school year finishes at the end of June). The report shows some improvement but highlighted various areas in which the child struggles at school, both academically and socially. The report indicated that the child received the assistance of a learning support specialist at school. Attached to the report was an Academic Progress Report. Relevantly, that report stated:

   [The child’s teachers] expressed concerns about his low academic performance and difficulties to start and maintain social interactions with peers and adults. Social and emotional performance are also and [sic] area of concern for teachers. Both parent and teacher report that the child had a very hard time during the first months of school after moving here to [City J] from Australia, which made impossible to address academic goals. Now a days, they perceive a significant improvement, however he is still showing a low academic performance overall. [Country K] acquisition prevents him to fully participate and perform in … subject that is conducted in [Country K]. Mainly concerns of teachers are attention and focusing, oral and written expression, concepts acquisition and consolidation and overall academic performance.

8. I pause here to note it is the father’s observation and understanding that although the child has settled appreciable better in his last term of school, he is still less settled and achieving less than he was at Suburb F Public School before he was taken to Country K by the mother last year.

9. The mother deposed that her health has suffered as a result of the stress of the litigation. In February 2017 she was assessed by a psychiatrist and diagnosed with a chronic adjustment disorder with a depressed mood. 

10. The mother said she had a conversation with the child on 2 April 2018 whereby she asked the child why he did not purchase a toy with the 300 Euro that he had been given as a birthday gift from his father. The child replied, “I don’t have that money … dad needed money so I had to give it back to him … but when I see him next time he will pay me the 260 Euros that he owes me back.” I note that this was not put to the father by the mother as being a statement of truth.

11. In respect of her proposals for the child to live in City J, she said they will live in a flat owned by her (she has now provided an address as Y Street … City J, Country K). The child has his own bedroom and bathroom in the flat. She proposes that the child will continue attending the English School of City J as long as she can afford it. She outlined the costs of the school fees as $18,960 per year, in addition to $8,530 per year for the psychotherapist to assist the child and $1,437 for Social Skills club. In her oral evidence the mother said that she has employed a specialist teacher for two hours for four school days per week, to be with the child and assist him in all aspects of his school day. That person’s name is Mr K. She said the child has told her he likes Mr K. The additional cost of that employment has not been disclosed by the mother.

12. In her affidavit, the mother stated that she had no proposals for the child to travel overseas (I infer, from City J). She deposed “I don’t communicate with [the father] and have no intention to communicate with him in the future.” This aspect of the mother’s attitude towards the father was the subject of oral evidence which I will address later. I consider that approach not in the best interests of the child, however, I accept the mother has stated the reason for same in her oral evidence.

13. The evidence about the relationship between the parents is highlighted in parts of the mother’s trial affidavit. In paragraph 29 and 30 the mother sets out the content of an email she received from the father on 27 March 2018. The content of the email is entirely appropriate and seeking to establish a relationship which would best assist the child. He proposed the parties meet and show the child they can talk to each other appropriately. The mother failed to either take up the father’s offer to meet and she failed to respond to the email.

14. The mother in her oral evidence stated she had not spoken to the child about the court proceeding. However, in paragraph 34 of her affidavit she said the child had reported on 2 April this year that his father had told him the father had to go to court to have phone calls with him.

15. The mother set out in her evidence complaints about the father not being co-operative with obtaining a new passport for the child. She also complained about his lack of response to her emails. Her oral evidence contained further complaints about the father not being available to receive telephone calls (Facetime) from the child.

16. In paragraph 64 the mother included the following. “I’m proposing the child will see his father when I am of the view that it is safe and in the child’s best interests to see him.” That statement, in my view, encapsulates the proprietorial attitude the mother demonstrated towards the child. Whilst seemly acknowledging the child has a biological father in Mr Hutchins, she clearly sees his role in the child’s life as of little consequence to her own role. There may be some historical and/or cultural basis for such a perception, however, it is not in keeping with the role the Australian law, specified in the Family Law Act, would endorse.

17. In paragraph 65 of her trial affidavit the mother said: “There are and have always been, and there will always be a lot of therapy involved in raising a child with ASD and ADHD, [Mr Hutchins] has never been involved in those activities or tried to, and I have no intention to involve him now and for as long as the child continues to be in my care because [Mr Hutchins] is a toxic presence whatever (sic) he goes.” That extract from the mother’s affidavit is illustrative, in my view, of the proprietorial attitude of the mother which fails to recognise that the child has a good and close relationship with his father.

18. In paragraph 66 of the mother’s affidavit she answers the question: “What role do you propose the other parent will have in each of the nominated extra-curricular activities?” The mother stated: “None, he has never been involved before.”

19. In paragraph 67 of her affidavit the mother answers the question: Do you propose the children should be permitted to travel over-seas with the other parent?” The mother responds “Only if and when the child is willing to travel and only if I decide it is the best thing for the child and have guarantees that he will be safe and [Mr Hutchins] pays for it.”

20. In answer to the question: “Who will hold the passport (for the child) between travel events?” The mother responds “I don’t have any proposals. As I have noted before I don’t communicate with [Mr Hutchins] and have no intent to communicate with him in the future.”

21. The mother referred to domestic violence which she said she has referred to in earlier affidavits. She said she provided a Notice of Domestic Violence filed in 2015 and in January 2018. She did not put any aspect of domestic violence to the father in cross-examination.

22. The mother said in her affidavit: “the child has daily difficulties and is constantly driven to things that give him pleasure as an escape route to not deal with his day to day struggles. Who is going to take the risk that in a couple of years’ time he sees his father smoking marihuana (sic) and he tries it? Then becomes an addict himself? Is the court prepared to take this risk? Because I am not.”

23. In paragraph 69 the mother concludes her affidavit with the following. “the father uses marihuana (sic) daily, has a personality disorder and has never supported financially the child, has never been involved in his health of (sic) education, has only spent small periods of time with the child and has a personality disorder, which makes him incapable of parenting effectively a teenager. Unfortunately, [Mr Hutchins] (sic) mother, who is a mandatory reporter, has never reported her son continues to use drugs, even when the child is in his care”.

24. Annexure “C” to the mother’s affidavit is a report from Dr L, a treating Developmental Paediatrician for the child. The report dated 3 March 2017 confirms the diagnosis of ADHD for the child.

25. Annexure “F” to the mother’s affidavit is a report from Dr M, Psychiatrist. It is dated 6 February 2017. It is not a report from a treating medical practitioner of the mother but rather is titled “Independent Medical Examination”. The report does contain evidence of the symptoms described by the mother to the psychiatrist and as the document is adopted by the mother in her affidavit some weight can be given to the words which are attributed to her. The symptoms the mother reported included “sleep deprivation, disturbed sleep for three years, poor mood, feeling depressed upon return to Australia after a two month period in Country K with family. She felt trapped in Australia because the child spends time with his father and she is not permitted to remove him from Australia. She has struggled with attention, concentration and short term memory prior to her leaving her work. She occasionally suffered anxiety. She has felt a choking sensation and on one occasion called an ambulance. Prior to resigning from work she was suffering verbal abuse from her employer. She reported feeling isolated in Australia”.

26. Annexure “H” to the mother’s affidavit is a translation of part of a document which records detail of the child’s learning difficulty in March this year and recorded the agreement with the mother for the future approach to the child’s school work. His report for 5 April 2018 is annexure “I” to the mother’s affidavit. The reports shows “Serious Difficulties” in three areas of writing skills and many areas where he needs to improve. He also had some “Good”, three “Very Good” and one “excellent”.

27. At annexure “O” the mother annexed an interpretation of part of a report carried out by Dr N, a psychologist recommended by the Parents Association of Children with Autism in Country K. The conclusion specifies the child “presents difficulties which are compatible with a Disorder on the Autism Spectrum. In the ADOS-G diagnostic test, his results fall within the autism criteria”. The report makes recommendations including actions to help him learn to accept/deal with change to any aspect of his life.

28. At annexure “Q” the mother has annexed the child’s latest report from the child’s school, which is dated 27 July 2018. The report shows some improvement in achievement. Importantly for me, it refers to the child receiving additional support from Mr K “who has worked with him both inside and outside the classroom in both English and Country K”. The comments under the heading “General Comment” are encouraging. It concludes “I am pleased with the changes I have seen in the child throughout the year …”

29. The final annexure to the mother’s affidavit is marked as annexure “T”. The document exemplifies the minimalist manner in which the mother undertakes essential correspondence with the father.

30. The mother relied on portions of her affidavit sworn 27 February 2018. The paragraph’s she relied upon are as follows: 10 to 20, 21 to 31, 32  to 43, 44 to 52, 74 to 78. I permitted the mother to rely upon those paragraphs over the objection of the father who said it was unfair to him given that he had restricted himself to relying upon the trial affidavit he prepared. Further he said he had not prepared to cross-examine the mother on those paragraphs. Whilst acknowledging that there was unfairness to the father in the manner he stated, I allowed him what I considered sufficient time to cross-examine the mother on any relevant matter. He did, in my opinion, cross-examine the mother about relevant matters and I am certain he was able to convey to the court his concern about the mother’s parenting of the child, her failure to comply with court orders and her antipathy towards him. He also emphasised his view that the mother had been “high handed” with him and the manner in which she controlled the time the child spent with him.

1. I further permitted the mother to rely upon the specified paragraphs of the affidavit of 27 February 2018 because I take the view the content is largely contrary to her interests in the case she pursues.

2. The paragraphs of her affidavit of 27 February 2018 which she relied upon provided the following relevant evidence:

   ·She received advice from an acquaintance to not disclose the diagnosis of autism on the enrolment form for the child at a school.

   ·She applied for enrolment at the American School of City J and disclosed the diagnosis. The application was refused.

   ·She applied to the English School of City J for enrolment for the child. She did not disclose his diagnosis. He was accepted.

   ·The school accepting the child included both primary and secondary classes and thereby does not mean the child would have to change schools in order to attend high school.

3. I note the mother did not inform the father she had deliberately secreted from the English School the diagnosis for the child of autism. That failure led to further conflict with the father and significant repercussions for the child and the mother when the father visited the school and provided the school with all the relevant information he had in relation to the child.

4. The mother also relied on a number of documents which she had annexed to earlier affidavits filed by her. She marked those documents with tabs and tendered them. I have considered each one of those documents. Where necessary I have specifically referred to one or more of those documents as can be seen in these reasons. Many of the marked documents relied upon by the mother are emails between the parents which are threatening in their tone and content. There are also documents relevant to communication between the child’s school and the parties or mother. There are emails from the mother to the father in 2012, 2015 and 2016 complaining about the father cancelling time with the child at the last moment.  There is a complaint in 2017 about the father allowing the child to watch a particular YouTube video which the mother said was unsuitable.

5. Annexed to her affidavit filed 31 May 2017 the mother marked a document created by Dr L who is a Developmental Paediatrician and a treating practitioner for the child. The letter specifies the child’s diagnosis and details the incredible difficulty faced by a single parent in raising a child with that diagnosis. The mother also relies upon a letter from her treating medical practitioner dated 1 May 2017. In that letter her doctor, Dr D, said “At the end of last year [Ms Blaney] went through a period of depression as a result of the constant stress trying to balance work and looking after the child at home.” The letter went on to describe the difficulties being suffered by the mother at that time. There was a letter from her psychologist dated 20 April 2017 which also described the difficult circumstances of the mother. The letter described “the child’s behaviour is often verbally offensive and aggressive to others. As a result, [Ms Blaney] is unable to socialise. ..[Ms Blaney] feels isolated and unsupported in her very difficult mothering role….[Ms Blaney] is feeling anxious, worried and depleted.”

6. The child commenced school in Country K on 6 September 2017. The mother had left Australia with the child on 31 August 2017. By 22 September 2017 the child had experienced trouble at school and the mother had been informed, via her mother, “don’t bother to bring the child to school on Monday”.

7. At a meeting with the school on 23 September 2017 the mother informed the school that when the child commenced school in Australia she had spent the first week at school with him to help him settle. The school psychologist in City J asked the mother to take the child to see a paediatrician. She had the child see a paediatrician in October. She reported the paediatrician told her it had been “a very big move for any child, even those with no behavioural problems” (in reference to moving the child from Australia to Country K). The mother then made appointments for the child to see a developmental paediatrician and a child psychologist.

8. In mid-November 2017 the mother had another meeting with the school, at the school authorities’ urgent request. During a meeting with the school psychologist the psychologist informed the mother that “children with ADHD often have other co-morbid diagnosis”. The mother still, at that time, kept secreted the knowledge that the child had been diagnosed with autism. This was in circumstances where the mother said the school psychologist “kept asking for a diagnosis”. The mother said she “feared for the child.”

9. On 26 December 2017 the mother’s six month probationary period with her new employer ended. Her employment was confirmed.

10. On 6 January 2018 the father collected the child to spend time with him in City J. On 8 January the mother sent a text to the father asking to have the child go home to her place on the school bus to collect some more medication and she would drop him off to the father after that. The mother said the father did not reply. She sent another email and again received no reply. In paragraph 46 the mother said “he went directly to the school to make a show. A circus around him.” The mother said it was not necessary for her to inform the school the child was being collected by his father until 10 January 2018. She had arranged for him to go home to her place on the bus on 9 January. (I refer later to this period of time as the child was to have been in his father’s care from 1 January 2018 pursuant to earlier proposal the mother made in writing to the father, albeit she proposed a slightly earlier start date, namely 29 December, and which the father had advised on 16 December 2017 he would be in City J to take up time with the child.)

11. In paragraph 48 the mother said “ I appreciate the school personnel would have been stressed about a ‘loving and caring dad who is visiting his son from Australia and his evil mother hadn’t even told us’, specially knowing how [Mr Hutchins] would have played his ‘I’m a victim’ charms on them. However, from the point of view of being informed, I had not breached any formal or informal protocols. I didn’t need to tell the school the child or anyone else [the father] was in [Country K] if I didn’t want to, the school only needs to receive authorization to collect a child. And the day before, nobody cared who collected [the child].”

12. The mother then was critical of the father speaking to the school authorities (giving the impression she was of the view that the child’s schooling is none of his business). She said he had made complaints about her. She said in paragraph 51 “I was feeling fearful, anxious and depressed. After all the effort it had taken (I note that this refers to the use of deception about his diagnosis of autism) to get the child admitted in a good mainstream English Private school, [Mr Hutchins’] actions were creating confusion and tension in my relationship with the school. I felt very worried about the potential consequences for the child.”

13. Notwithstanding that the father was exercising his time with the child in Country K, pursuant to the court orders, the mother sent an email to him on 11 January 2018, saying “Given yesterday’s events at the school, today I will be picking up the child from school myself and dropping him off at your hotel by 5pm”. That action, on its face, was a flagrant interference with the time the child was to be spending with his father and had all the hallmarks of an attempt to prevent the father having further opportunity to interact with the school personnel. Again this smacks of an attitude the mother may hold that “[the child’s] education/schooling is none of his business”.

14. In paragraph 74 of the mother’s affidavit she says “I note that [Mr Hutchins] was diagnosed himself as having “adult ADHD” in 2007 by the psychiatrist [Dr O] in Sydney”. That allegation, if relevant, was not put to the father in cross-examination nor was any document or conversation, upon which some reliance could rest to support such assertion, provided to the court.

15. The mother says the child has been taking medication for ADHD since it was prescribed for him in Sydney in 2017.

16. In paragraph 77 of the affidavit the mother said “I note paragraph 12 in the affidavit filed by Mr Hutchins on 30 January 2018 ‘I have never been informed that [the child] is taking medication’. Again showing off his sense of entitlement and lack of understanding of his parental responsibilities.”

17. In paragraph 78 the mother said “[Mr Hutchins] has discredited me in front of the school staff to try to get some sort of Court Advantage. His reckless attitude shows he doesn’t care about the consequence of his acts. In the end the person that will pay for this is his son, [the child], who I fear will be dismissed from the school.”

18. The manner in which the mother was apparently discredited was that the school authorities learned of her deceitful action in achieving an enrolment for the child in the school with the belief that honesty would have led to a rejection of her application for the child to be enrolled. Given that she did not inform the father that she had deceived the school authorities in order to gain the enrolment, it is hard to see how she could have any criticism of the father who, on the evidence he gave about the conversation he had with the school authorities, conducted himself with honesty and bona fides. 

Oral evidence of the mother

1. The mother was cross-examined by the father.

2. The father cross-examined the mother about the information she had provided to the child’s school in City J about his “diagnosis”. That is a reference to a diagnosis of autism.  The mother said an evaluation of the child was carried out in City J at the request of the school and in May 2018.  She provided a copy of the report which was created. She conceded she had a psychological report on the child, created in 2015, and that report contained a diagnosis of autism. She withheld that report from the school in which she enrolled the child in City J.

3. The report prepared in 2018 in City J and provided to the child’s school was prepared by a psychologist Dr N. The report the mother said was annexed to her affidavit as annexure “O”. She had only had the conclusion portion of the report translated from the Country K language.

4. The father asked the mother to provide a copy of her enrolment application to the school in City J which the child now attends. She said she had not kept a copy of the document. The father sought the document in response to an assertion by the mother that she had informed the school the child had ADHD and challenging behaviour.

5. The mother was asked about the incident which prompted the school in City J telling her mother not to bring the child to school on Monday. She said she asked the child what had happened and he told her a boy had thrown a football at him and he “got angry”. The father asked if that was the only problematic behaviour of the child at school since September last year. The mother said no, there had been several incidents between the child and his peers. She said it was the child reacting to some playground incident which then required the intervention of an adult.

6. The father asked about the information the mother had provided to the school in City J at the time of the child’s enrolment. He asked if she had told the school that in Australia the child had the assistance of a “teacher’s aide” in the classroom with him. She said she had not told the school about that. She said she could not remember.

7. The father informed the court he had spoken to the school in City J. He said the school had not been informed by the mother that when the child was at school in Australia he was assisted in class “all day, every day” by a teacher’s aide.  The mother does not deny she omitted to inform the school of that detail.  She did say, however, that she asked the school officials whether they required any assistance with the child and that she was happy to pay for same. She has done that by paying for a support worker to be with the child for two hours on four days in each school week.

8. The mother was asked about the content of a meeting she had with the child’s school in March this year. She said the content is noted in annexure “H” to her affidavit. The mother denied the assertion that in City J the child is receiving a lesser quality of education than he did in Australia. She said it was a school which offered advantage for the child with two full-time psychologists and tuition in the English language. The class sizes contain a maximum of 20 pupils. Other resources at the school are plentiful. In addition she had engaged a teacher’s aide equivalent for the exclusive use of the child.

9. When asked why she did not enrol the child in the public school system in Country K the mother said she wanted an English speaking school for him. Further, the school provides for him to undertake primary and secondary school without having to change school.

10. The mother was asked about the content of paragraph 25 of her affidavit of 27 February 2018. In particular she was asked about the content of a letter received from the school psychologist. The mother said the content of the letter was about the psychologists concerns for the child, in particular his behaviour at school, his lack of respect demonstrated to teachers, adverse interaction (incidents) with other pupils, low academic performance, and low attention in class.

11. The father put to the mother that, the time the letter was received by her, from the psychologist, she was more concerned about the child remaining in that school than about general aspects of his education. She denied that.

12. The mother was asked to agree that the child’s educational options are better in Australia than in Country K. She refuted that proposition.

13. The mother was asked to identify any supports which are provided for the child in his City J school. She was asked this question with a view to comparing what each school system (between the school in City J and a NSW State school) could offer the child based upon her experience of both. She said that at Suburb F public school, the child had support from a teacher’s aide, however, in a meeting with that school authorities, before the child left the school, the mother had been told it would be necessary to withdraw the support gradually so that the child becomes accustomed to no support because in High School it would not be available. The mother said that in the City J school the assistance she has put in place will continue into the child’s high school years for as long as he needs it.

14. The mother was questioned about the support person she has been funding. She said the person attends four days a week during school term. The mother said the report of the support person is contained at exhibit “Q” (Q6 to Q11). The support person attends at the child’s school with the child for two hours on each of the four days. The school instructs him the days and times to attend the school.

15. The mother said that the child has told her he likes the support person Mr K very much.

16. The support person service costs the mother €450 per month.

17. The father cross-examined the mother about the annexures marked “Q” to her affidavit. She had included only the pages of the document which she considered the court would need to see. The father said the document provided was not signed. The father asked if she had fabricated the document. She denied she had done so. He asked if she had fabricated any of the documents she provided to the court. She said no.

18. It is, in my view, a very serious matter to suggest to a party to proceedings in a court that they have fabricated evidence for the proceeding. I am sure the father did not understand the seriousness of what he was asking, however, it did highlight for me, the level of animus, suspicion, and mistrust which has developed between the parents.

19. The father asked about annexure “O” to the mother’s trial affidavit. This is part of an evaluation by Dr N. The evaluation is of the child. The father asked where the balance of the document was. The mother said she would bring the whole of the report to the court the next day, however, she pointed out that it was in the Country K language.

20. I pause here to note that some of the documents which the mother provided as evidence were in the Country K language and needed to be translated. I accept the translations come at a cost. I do not find that the mother has deliberately failed to have portions of the documents translated in order to hide evidence. I accept she concentrated on having those parts of the documents, which are likely to be of relevance and assistance to the court, translated.

21. The father cross-examined about paragraph 26 of the mother’s affidavit of 27 February 2018. He asked what the letter from the school had said which prompted the psychologist Dr N to say “they (the school) haven’t been very nice.” The mother said it contained statements such as “This child is difficult to have. He is not respecting the adults. He’s showing aggression against peers. He’s having problems in the classroom.” The mother conceded that the child did not have “all of those behaviours” at Suburb F Public School shortly prior to moving to Country K. She said he had those problems but not to the same degree. When asked why she thought the child had experienced that increase in problematic behaviour at school when in Country K she said “It is hard for the child to settle in any school”.

22. It was put to the mother that she knew the child would experience difficulty if she moved him to Country K. She said “I know that children with autism, including the child, have difficulty settling in a new school environment.”

23. The mother was cross-examined about part of paragraph 29 of her February 2018 affidavit. In that paragraph she said “In mid-October I had a parent teacher meeting with the Country K teacher at the school. She mentioned her list of concerns and we agreed how to address them.” She was asked “What were the list of concerns?”

24. The mother said the concerns were “issues in the common room, his writing was delayed; his concentration was low; he needed help with maths and he needed help with the way he was addressing adults and emotional regulation.”

25. The mother said she worked with the child on handwriting and mathematics at home in order to improve his capability in those areas.

26. Cross-examined about her daily routine the mother said she would usually be home by 6.00 p.m. during the week. The child finishes school at 4.40 p.m. The child is home by 5.30 p.m. to 5.45 p.m. except on Tuesday when he participates in basketball and Thursday when he participates in a social skills group. On those days the mother either collects him or sends a car to collect him. When the child arrives home before the mother, he is there alone for up to half an hour. The mother said she has a very supportive neighbour. When her mother is staying with her she walks to the bus stop to meet the child and walk home with him.

27. The father asked the mother why she did not engage a nanny to care for the child at home after school and until the mother returns from work. The mother said the child does not want a nanny. She said “he loves being at home, having his shower…” She said the child likes playing with his Lego. He does that when he is at home.

28. In relation to the child’s use of an iPad, the mother said she restricts his use mainly to weekend time. It was put to her that it is possible for the child to access YouTube on his iPad, unsupervised, before she returned home from work. She agreed it was possible, however, she thought it unlikely because he knows the limited times he is permitted to do so and at the present time it is not a priority for him.

29. The mother was cross-examined about the content of paragraph 30 of her February 2018 affidavit. She was asked to particularise the “effort” she provides to assist the child academically. I here set out a portion of the transcript which sets out questions asked by the father and answered by the mother.

    “What – what specifically do you do with him?‑‑‑I do work with [the child] every day that I’m – a school day we work together.  On weekends we work together.  If he has essay or an exam, we work together.  On holidays, we even on holidays sometimes we have to work together.  Because he’s behind some of the teachers give him things to do.  [Country K], we do [Country K], we do reading in [Country K], we do fractions, we do English topics.  We did Egypt in December.  Then he changed to ecosystems.  We done rivers, minerals, multiplication tables.

    But these are things – sorry, these are things instigated by the school or yourself?‑‑‑The school guides me on what the child needs to do, and I just reinforce it at home.

    But you – do you take any initiative upon yourself to do anything different?‑‑‑All the time.

    What can you tell us?‑‑‑I buy him books all the time.  I take him to libraries so he develops – and he has developed – a taste for reading.  My mum and I have been helping with fine motor, buying little booklets where the kids just basically trace and trace and trace so they develop fine motor, which is behind.  I did a JFK essay with him.  We spent the weekend looking for photos on the internet.  We printed it all out.  He had to tell the class about it.  He did a really good job.” 

1. As can be seen above I conclude, sadly for the child, that on balance, the disadvantages of changing residence for the child at this time are greater than not making such a change. I conclude those disadvantages are not small but very significant.

2. I am satisfied that the child has struggled considerably adapting to all the changes which have been put in his path by the mother removing him to live in Country K. I am satisfied he is now conquering those aspects of change and challenge as well as he will ever be able to do. I am satisfied that if the child was to face another change to so many aspects of his daily life, it is probable he would suffer the same consequences which he has had to face in Country K upon his arrival there.

3. As the child matures his ability to cope with changes in aspects of his life might improve. If that be the case and, coupled with same, should it transpire that at the age of 14 or older, he is voicing a desire to live in Australia with his father, that would, in the absence of any change in the mother’s approach to the father and the child having a proper relationship, give rise to a different outcome so far as court orders are concerned.

4. Whilst determining that the best interests of the child are, at this time, attended to by permitting him to continue to live in Country K with his mother, such a conclusion is not reached without anxiety on my part about the mother complying with the orders of the court in relation to the time the father spends with the child. Whilst being satisfied she will significantly comply with the court orders, it is not possible for me conclude that she would comply with the spirit and intent of the orders in the same manner that a dedicated parent would clearly see and commit to. I have no confidence she would make a “special effort” (i.e. beyond what is required as a minimum to comply with the court orders) to ensure the child is able to maintain the relationship with the father, should that be required.

5. Having been very critical of the mother above I should acknowledge that she does have a great deal to offer the child. She is clearly very intelligent. She holds a responsible position with a worldwide corporation for which she is well remunerated. She speaks and can work in at least two languages. Her affidavit material demonstrates a high level of knowledge and application of the English language, which is not her first language. She has a great knowledge and understanding of the conditions which affect the child and she has managed his development with those conditions in a dedicated manner. Her ambition for the child to be able to live in mainstream communities is laudable and, when understood, underwrites her determination for him to be educated within a mainstream school system.

6. Contrary to her personal view of the father she has predominantly provided for the child to spend time with and know the father.

7. During the hearing, at times, I took the mother to task about some of her actions connected with complying with court orders and facilitating the child’s right to have a good and close relationship with the father. I doubt that has happened before. I felt from the mother’s response to those interactions, she came to appreciate the expectation of the court that she does comply with the court orders.

8. Although the mother informed the Court that she would have to return to Country K with or without the child, I do conclude she would be very unhappy about having to leave the child in Australia with the father. The mother is very suspicious of the father in relation to his ability to be a dedicated and reliable parent and in relation to his assertion that he is no longer a user of marijuana. I am sure she would be very disturbed when back in Country K and thinking about how the child was coping and being cared for.

Procedural Fairness to the Father

1. As stated earlier, the father protested against the mother being permitted to rely upon an earlier affidavit which she had filed. The father had prepared on the assumption that each party would be restricted to reading only their trial affidavits. The father was correct in that assumption and was entitled to make the assumption he did.

2. I permitted the mother to rely upon an earlier affidavit she had filed, in addition to her trial affidavit, because I concluded, on balance, that the material contained therein worked more in favour of the father’s case than hers. Further, if there was relevant information contained therein relating to the child I considered the court was obliged to consider same.

3. The father made no application to rely upon any earlier affidavit of his own.

4. I do not conclude that the father suffered procedural fairness in the circumstances. He was permitted to cross-examine the mother her on the content of both her affidavits and he did so. I assisted him in framing questions and directing him in relation to relevant and important matters wherever I could reasonably do so.

The Orders to be made

1. In this matter there is a high level of distrust and antipathy demonstrated by the parties towards each other as the evidence amply demonstrates. It is necessary therefore to frame orders, as best I can, to remove wherever possible any doubt about the precise requirement of each order. I will try to remove the requirement for either party to be able to apply an interpretation to the order which is contrary to any ordinary reading of same.

2. As stated above I propose to make an order that the mother have sole parental responsibility in relation to matters of health and education and that otherwise the parties have equal shared parental responsibility for the child.

3. I propose to make an order which requires the mother to notify the father when decisions in relation to the child’s health or education need to be made and then to consider any input he provides when reaching a concluded position on the subject.

4. I will make an order that the child live with the mother. I will permit the mother to remove the child from Australia. I will make orders for the child to spend face to face time with the father.

5. I propose to order that the father have two 14 consecutive day periods of time with the child in Country K during each year. One period to be during school holidays for the child in Country K and the other to be outside school holiday time. The parties did agree in submission that the time outside of school time should/could occur in the earlier part of the school term to avoid disrupting exam time or other projects which occur later in the school term periods.

6. I propose to order that the child spend one half of his long school holiday period (about four weeks) in Australia with the father. The Country K long school holiday period falls between about the end of June each year to the end of August.

7. I will make orders to define how the timing for the holiday time the father will have with the child is to be set. Those orders are designed to address events of the past which has inhibited the execution of the court orders because of the parties’ dysfunctional and acrimonious relationship.

8. I will make orders in relation to the parties funding travel expenses for themselves and/or the child for the purpose of executing the orders.

9. There will be the necessity for an adult, known to the child, to accompany him on long haul travel to and from Australia until he is able to confidently travel alone. The requirement for the child to be in Australia with his father for four weeks in the long school holidays might cause the mother difficulty with obtaining sufficient leave from her employment if she is to accompany the child on both trips. If the mother chooses not to make the return trip to Country K with the child then I will make provision to enable the father or the paternal grandmother or another adult well known to the child to accompany the child on the return trip to Country K at the end of his long school holiday stay in Australia.    

10. I will provide orders for the father to have Facetime and/or other communication with the child. The father will also be able to send the child mail, including presents. The mother is to ensure the father knows her residential address.

11. I will provide for the parties to vary the provisions within these orders BUT only where such variation is by consent and evidenced in writing, then it is to be attached to each party’s copy of the court orders.

12. I propose to make orders to permit the child contact with his father on special occasions.

13. I propose to make an order for the father to undertake drug testing for marijuana. I propose that it be required only for a two year period. I will order that it be required in a small window of time before the father commences time with the child in Country K and in Australia. The testing is to be by urinalysis and is to be conducted on a “chain of custody procedure”. The results of the testing are to reach the mother by email before the father’s face to face time with the child commences.

14. I will make provision for what is to occur in the event of a positive drug test result being produced. I propose in such circumstance where the relevant period of time is to occur in Country K then the time is still to take place PROVIDED the father is accompanied by his mother for that time.

15. Should the father produce a positive drug test for a period of time when the child is to spend time with him in Australia, then the time is to still take place provided it can be exercised with the paternal grandmother being present.

16. As I have said earlier I was very impressed with the paternal grandmother and I am sure she would not permit the child to be exposed to his father should his father be affected by the use of marijuana or any such substance. To that end I propose to require a copy of these orders to be provided to the paternal grandmother.

17. Given that the child will be residing in Country K such a circumstance creates a difficulty for the father to enforce this Court’s orders in that place. In the normal course he would probably have to engage the Country K legal system. That is likely to create an insurmountable obstacle for him. However, the United Nations Hague Convention on the Civil Aspects of International Child Abduction, of which Australia and Country K are signatories will provide the father with an affordable option. He already knows how to commence the involvement of the Australian Central Authority. Should he need any further order of this Court to enable the Central Authority to pursue remedies on his behalf then I propose to create an avenue which will enable him to be before this court within days or requesting any such orders. I hope that will not be required.

18. I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding three hundred and sixty-one (361) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 August 2018.

Associate:

Date:  22 August 2018