Blaney and Hutchins

[2017] FamCA 676

FAMILY COURT OF AUSTRALIA

BLANEY & HUTCHINS [2017] FamCA 676

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother sought interim orders to relocate with the child overseas for 10 months to enable her to continue her employment – Where the father opposes that application – Section 60CC considerations – Where the child suffers from autism spectrum disorder and attention deficit hyperactivity disorder – Where the child would be required to be removed from his primary carer if no orders were made for the child to relocate with the mother –Where the mother is required to relocate overseas to maintain her current employment – Orders made which permit the mother to travel overseas with the child for the limited period of 10 months on condition that arrangements are made to facilitate travel by the father and or the child so that they spend time together on not less than 3 occasions in the 10 month period

Family Law Act 1975 (Cth) ss 60CA, 60CC

Line v Line (1997) FLC 92-729

APPLICANT: Ms Blaney

RESPONDENT: Mr Hutchins

FILE NUMBER: SYC 1793 of 2008

DATE DELIVERED: 21 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 21 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT	In person
COUNSEL FOR THE RESPONDENT	In person

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

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. 

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 SYDNEY

FILE NUMBER: SYC 1793 of 2008

Ms Blaney

Applicant

And

Mr Hutchins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the mother has applied for orders permitting her to travel overseas with the parties’ son, T (the child), born in 2007, and who is 10 years old, for a period of 10 months from 1 September 2017. The application is opposed by the father.

2. By way of brief background, the mother, Ms Blaney, and the father, Mr Hutchins, met in 2004 and lived together for a period of approximately 36 months until they separated on a final basis in July 2007.

3. Since separation the child has lived with his mother. Pursuant to orders made by Fowler J on 3 December 2010, the child spends Tuesday evenings and every second weekend with his father as well as time during school holidays. The reasons for the orders made by Fowler J are set out in his Honour’s Judgment dated 3 December 2010.

4. The reason the mother is seeking permission for her to travel overseas for a period of 10 months is that she has obtained employment with Company B which is a global company that has an office in Europe. The mother commenced employment with that company in June 2017 working from the Company’s Sydney office on the understanding that she would be available to work in Europe as from 1 September 2017. 

5. In circumstances where the mother does not receive any financial support from the father, the mother has indicated that retaining her employment with the company is essential to enable her to support herself and the child. In those circumstances the mother has indicated that, if the Court does not permit the child to travel with her, she would nonetheless be compelled, to travel to Europe to retain her employment and the child would be left in Australia with his father.

6. In deciding this matter, the Court is required to have regard to the best interests of the child as mandated by section 60CA of the Family Law Act 1975 (Cth) (“the Act”). Section 60CC of the Act sets out a number of factors that the Court is required to consider in determining what is in a child’s best interests.

7. In terms of section 60CC(2)(a), that is, the benefit of a child having a meaningful relationship with both of the child’s parents, clearly, the child spending 10 months in Europe would impact upon his relationship with his father.

8. However, the wife has agreed to provide an amount of $15 000 as a lump sum amount to the father prior to her leaving for Europe to facilitate the father travelling to Europe on two or three occasions, or alternatively to enable the father to travel to Europe on two occasions, with the child travelling on one occasion to Australia. The $15 000 will permit that to occur. 

9. The mother has also agreed that if she is permitted to travel to Europe she would facilitate the child having liberal access to Skype or similar technology to enable the child to communicate with his father on a daily basis, if he wishes and, in reverse, if the father wishes to communicate with the child.

10. In terms of section 60CC(2)(b) there is the need to protect the child from physical or psychological harm or being subjected to, exposed to abuse, neglect or family violence. A matter that is of relevance in this case is the child’ personal circumstances. the child is on the autism spectrum and has attention deficit disorder. I will further discuss that matter below.

11. In terms of section 60CC(3)(a), that is, the views expressed by the child, a report has been prepared by way of a Child Responsive Memorandum that has been completed by Mr C, dated 11 August 2017. Mr C interviewed the child for the purpose of preparing that report. At paragraph 226, of his report, Mr C notes that the child spoke positively about his relationship with his father, but Mr C noted that it is clear from the child’ views that he wants to continue to live with his mother.

12. In terms of section 60CC(3)(b), which requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child, the mother acknowledges that the child has a loving relationship with the father. The mother notes, however, and it is not disputed, that she has been the primary carer of the child since he was born. The father states that he has nonetheless spent time with the child in accordance with the orders of Fowler J to which I have referred.

13. In terms of section 60CC(3)(c) which requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child, the mother states that subsequent to those times that she has been overseas with the child the father has not sought make-up time with the child even though that has been offered to him. At times those periods of absence have been for period periods of up to 6 weeks.

14. In these interim proceedings I am not in a position to determine whether that offer has or has not been taken up and if it has not been taken up why that has not occurred.

15. Further in terms of section 60CC(3)(c), the documentation attached to the mother’s affidavits satisfies me that the mother has been intimately involved in the medical care of the child.

16. In that respect, a report from W Hospital dated 3 April 2017, which is Annexure B to the mothers affidavit dated 31 May 2017, states that the mother has been the primary carer of the child:

    providing for his daily needs and planning, coordinating and implementing his developmental, behaviour, learning and social skills interventions.  His progress can be attributed to the constant hard work, time and significant financial commitment that the mother has provided for [the child].

17. I accept that the father has spent time with the child, as I have indicated above, and that he has offered to take the child to and from school when time has permitted. The father stated that he would like the opportunity to have a greater involvement in the child’s life and he would have done so if that had been permitted by the mother.

18. Of further relevance in respect to section 60CC(c)(a), the father has not paid child support in respect to the child. The father asserts that the mother has not sought such financial assistance from him because any amount paid by way of child support would be a small amount compared to the mother’s income.

19. A medical report from Dr D which is Annexure C to the mother’s affidavit dated 31 May 2017 and a report from Ms E, Consultant Psychologist, dated 20 April 2017 which is Annexure D to the mother’s affidavit dated 31 May 2017, both note the emotional strain suffered by the mother in coping with the challenges presented by the child’ medical conditions while maintaining full time employment. This resulted in her leaving the workforce in October 2016.

20. The mother has indicated that she has sought employment with Company B as it provided her with the opportunity to work in Europe where the mother can call on the support of other family members who live there. The requirement for the mother to work in Europe is confirmed in her offer of employment from Company B which is Annexure F to the mother’s affidavit of 31 May 2017.

21. In this matter it is highly relevant that the mother has been and continues to be the sole financial provider for the child.

22. Section 60CC(3)(d), requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living. This is also a significant consideration.

23. Clearly the child travelling to Europe would be a significant change for him and it is reasonable to assume that change would involve some emotional challenges. However, in his report, Mr C refers to the significant change that would occur if the child was to be removed from his primary carer. In the circumstances of this case I am satisfied that change would have a greater impact on the child than travelling to Europe with his mother.

24. In that respect, the father indicated to Mr C that, in order to cope with the additional responsibility of caring for the child on a full time basis, he would probably require the support of his family members. The father advised Mr C that he would move to the Region H in order to obtain that support. In today’s proceedings, the father advised that, having had the opportunity to reconsider the matter he now believes that he could cope with the child being in his full time care without moving to the Region H. The father indicated that he would, however, obtain accommodation closer to the child’ school.

25. Nonetheless, I have significant reservations about the father’s capacity to care for the child on a full-time basis particularly having regard to the challenges that the child faces.

26. In assessing the impact of that change on the child, in that context, I note that the report from the W Hospital dated 3 April 2017, to which I have earlier referred, reports that:

    [The child] has autism spectrum disorder and attention deficit hyperactivity disorder combined subtype as per the DSM-5 criteria. His cognitive function is in the average range, but he presents with significant difficulties in adaptive functioning. He requires support to complete many aspects of daily living. His support level is significantly above those which would be typically expected of a child of this age and cognitive level.

    [The child] has a number of maladaptive behaviours secondary to his developmental disorders which at times can be aggressive and present a significant challenge at home and at school. 

27. That challenge is also reflected in a report from the Principal of Suburb F Public School, which is Annexure I to the mother’s affidavit sworn 31 May 2017. In that Report, the Principal noted, “we have all noticed with prepubescence, the child’ emotional outbursts have become more frequent and aggressive”.

28. Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

29. The practical difficulty and expense of the child spending time with the father when he is overseas speaks for itself.  However, I note the mother has offered to pay the amount of $15 000 to the father prior to leaving for Europe to facilitate the father and/or the child travelling to meet each other on at least three trips a year. I note that the wife has also undertaken to ensure that the child and the father have regular contact through Skype or a similar technology.

30. Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

31. I note that the medical reports to which I have referred commend the capacity of the mother in that respect. 

32. The father’s ability to be the primary carer for the child is untested. It would be inappropriate for the Court to make orders for that to occur particularly in circumstances where the mother would be absent from the country.

33. Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.

34. The father has stated that the mother has, on occasions, failed to return from overseas trips with the child at the time she has specified. The father also states that the mother has frequently undertaken interstate trips, as part of her employment, to other capital cities without providing the opportunity for him to care for the child on those occasions. In these interim proceedings I am not in a position to make a determination in respect to those disputed facts.

35. The mother alleges that the father has been irresponsible as a parent as a result of the fact that he smokes marijuana. I note that the issue of substance abuse was dealt with in the decision of Fowler J to which I have earlier referred. The father admits to smoking marijuana but states that he does so in order to “self-medicate” and that his consumption of marijuana has not and would not impact upon his parenting capacity. Again, I am not in a position, in these interim proceedings, to make a determination as to the extent of the husband’s use of marijuana and the extent to which it may or may not potentially impact upon his parenting capacity. That question will need to be determined at final hearing.

36. Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family and Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.

37. There is no information before me that indicates that these considerations are relevant.

38. Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

39. These are interim proceedings pending final hearing of the mother’s substantive application and this is not a relevant consideration.

40. Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.

41. As this matter concerns an application by the mother to travel outside the Commonwealth with the child, the Court is required to consider whether there is a risk that the child would not be returned to Australia.

42. The Full Court in Line & Line (1997) FLC 92-729 set out the factors to consider in evaluating the risk of non-return.[1] They were said to include:

    (1)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

    (2)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

    (3)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

    (4)Whether the country of travel is a signatory to the Hague Convention.

    [1] at 83,846.

43. I note that the mother owns a property at Suburb G which she submits is valued in excess of $2 000 000 and has mortgage of approximately $600 000.  Accordingly, she has significant assets in Australia.

44. The father acknowledges that the mother has had three to four overseas trips  with the child each year. Although the father does complain that, on occasion, the mother has returned to Australia after the time that she indicated that she would return, the mother has in fact returned on each occasion. 

45. The primary country of destination in Europe is a party to the Hague Convention and the father would be entitled to seek a remedy under the Family Law (Child Abduction Convention) Regulations 1986 in the event of the mother failing to return the child to Australia after the time for travel permitted by these orders.

46. I also note the mother’s undertaking to pay a lump sum amount to the husband of $15 000 before she departs from Australia. That obligation will be confirmed in the orders that I make.

47. Relocation cases are very difficult decisions for the Court, and I acknowledge that there are special considerations that the Court needs to have regard to in terms of authorising a party to travel overseas on an interim basis with the child. 

48. In that respect there is some merit in the father’s argument that the fact that the mother is permitted to live overseas with the child for a 10 month period may itself be a relevant consideration at the final hearing of this matter. However, balanced against that consideration are the other section 60CC considerations to which I have referred.

49. In circumstances where the mother was facing psychological challenges in coping with the demands of the child’ condition, as well as maintaining employment in Australia, it is understandable that she would wish to obtain assistance from other family members. That assistance is available in Europe but not in Australia.

50. The mother has indicated that she is compelled to move overseas, at least in the short term, to protect her employment.  In those circumstances, if the child was not permitted to travel with his mother he would be required to move from his primary carer to the care of his father. This would be in circumstances where the child faces significant challenges and the father’s ability to care for him on a full time basis is untested. 

1. Accordingly, having regard to all of the section 60CC factors to which I have referred, it is appropriate to make interim orders permitting the mother to travel overseas with the child for the limited period of 10 months.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 August 2017.

Associate: 

Date:  21 August 2017