Gaskill and Beveridge

FAMILY COURT OF AUSTRALIA

GASKILL & BEVERIDGE

[2018] FamCA 1114

FAMILY LAW – CHILDREN – International relocation – Where there is one child aged eight years – Where the mother seeks to relocate with the child to the United Kingdom – Where the father opposes relocation – Where the father has been unavailable to the child due to alcohol dependency – Where the time the father is to spend with the child will be limited and supervised due to this alcohol dependency – Where the mother is to have sole parental responsibility – Where the mother has emotional and physical support of family and friends in the United Kingdom – Where orders are made for the child to relocate to the United Kingdom.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60I, 61B, 61C, 61DA, 65AA, 65DAA

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR (2010) 240 CLR 461; [2010] HCA 4

APPLICANT:

Mr Gaskill

RESPONDENT:

Ms Beveridge

INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

FILE NUMBER:

SYC

3762

2014

DATE DELIVERED:

20 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

11-14 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moutasallem

SOLICITOR FOR THE APPLICANT:

Pinnacle Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cook

SOLICITOR FOR THE RESPONDENT:

KD Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

Orders

The following parenting orders are made in relation to the child X born … 2010 (“the child”).
All previous parenting orders are discharged.

Parental Responsibility

The mother is to have sole parental responsibility for the child.

Live With

The child is to live with the mother.

Relocation

The mother is permitted to relocate the child’s residence from Australia to the United Kingdom (“UK”).

Spend Time

The child is to spend time with the father as follows:
(a)In even numbered years, in the UK, for two periods of five days during the hours of 9.00 am to 3.00 pm each day, such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.
(b)In odd numbered years, in Australia, for two periods of five days during the hours of 9.00 am to 3.00 pm each day, such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.
(c)At any other time that the father is able to pay his own costs of travelling to the UK, for two periods of five days during the hours of 9.00 am to 3.00 pm each day, such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.
The father’s time in Order 6 is to be supervised by a supervisor to be agreed between the parties.
The parties will share equally the costs of the father’s airfare to fly to the UK in alternate years to facilitate Order 6(a).
The parties will share equally the costs of the airfare for the mother and the child to fly to Australia in alternate years to facilitate Order 6(b).

Communication

The mother is to facilitate Skype/Facetime calls between the father and the child on Sunday each week at 10.00 am UK time, and at any other time the child may request.
Each of the parents shall keep the other notified of details of their current residential and email addresses.

Restraints

Each of the parents is restrained from denigrating the other parent or any relative or friend of him or her, in the presence or hearing of the child.
The father is restrained from consuming alcohol in the presence of the child or for 12 hours before any period the child spends time with the father.

Medical and Health

Each of the parents, while the child is in their respective care, shall forthwith notify the other parent in the event of the child being affected by serious illness, sustaining a serious injury, or requiring medical attention.
The parents shall respectively advise the other parent of any institution providing any medical care, counselling or the like to the child while in that party’s care.
The mother is to ensure the child receives all vaccinations recommended by the child’s general medical practitioner.

School

The child is to be enrolled in school in the UK as soon as possible after the mother and the child arrive there.
The mother shall do all acts and things necessary to authorise the child’s school or education provider to provide the father with copies of all school reports, notices and other correspondence normally made available to parents and in the event the school refuses to do so, the mother shall ensure the father is provided with a copy of such documents.

Counselling

The mother is to engage in counselling to assist her in establishing effective communication with the father.
Leave is granted for the mother to provide her counsellor with the report of Dr B dated 21 February 2017.

Travel

The child’s name is to be removed from the PASS Alert System (Watchlist).
The mother shall retain custody of the child’s Australian and UK passports and the mother is authorised and permitted to apply for and receive an Australian passport and a UK passport for the child without first obtaining the consent of the father.

Additional Orders

All outstanding applications are dismissed.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these 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 Gaskell & Beveridge 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 3762 of 2014

Mr Gaskill

Applicant

And

Ms Beveridge

Respondent

REASONS FOR JUDGMENT

Introduction

X (“the child”) was born in 2010 and is eight years of age. His parents are Mr Gaskill (“the father”) and Ms Beveridge (“the mother”). They have been unable to agree on parenting arrangements for the child. The mother is seeking permission to relocate the child’s residence to the United Kingdom (“the UK”) but the father is strongly opposed to such relocation. The father is seeking much more time with the child than the child currently has with him. They have asked the Court to determine parenting arrangements for the child.

Applications

The father seeks orders to the following effect:
·The parties have equal shared parental responsibility for the child.
·The child live with the mother.
·The mother be restrained from relocating the child’s residence outside Australia.
·Various orders to ensure that the mother has the child appropriately vaccinated.
·The mother enrol the child in a school for the 2018 school year.
·Various orders to provide for the father to undertake a residential alcohol rehabilitation program and follow up counselling.
·The child spend time with his father supervised by specified persons each Wednesday from 5.30 pm to 7.30 pm, each alternate Sunday from 11.00 am to 5.00 pm, other times as agreed between the parents and Skype communication each Monday and Thursday evening.
·Spending time orders more favourable to the father upon successfully completing the first 90 days of the residential rehabilitation program subject to satisfactory carbohydrate deficient transferrin test results as set out at Annexure A to these reasons for judgment.
The Independent Children’s Lawyer (“ICL”) seeks orders to the following effect:
·The mother is to have sole parental responsibility for the child.
·The child is to live with the mother.
·The mother is permitted to relocate the child’s residence from Australia to the UK.
·The child is to spend time with the father each even numbered year in the UK for two periods of five days from 9.00 am to 3.00 pm and in odd numbered years in Australia for two periods of five days during the same hours, as well as at any other time that the father can pay his travel costs to the UK for two periods of five days during the same hours and all such days would coincide with the child’s school holiday periods.
·All time spent between the father and the child would be supervised by a supervisor agreed between the parties.
·The parties would share equally the costs of the father’s airfare to fly to the UK and they would share equally the costs of the airfares of the mother and the child to fly to Australia.
·The mother would facilitate Skype/Facetime communication between the father and the child on Sunday each week at 10.00 am UK time and any other time the child might request.
·Each party be restrained from denigrating the other and the father be restrained from consuming alcohol in the presence of the child or for 12 hours before the child spends time with the father.
·Various orders in respect of medical and health matters, including vaccinations.
·The child is to be enrolled in school in the UK as soon as possible after arrival.
·The mother shall authorise the child’s school to provide the father with copies of school reports and other relevant notices and documents.
·The mother is to engage in counselling to assist her in establishing effective communication with the father.
·That the child’s name be removed from the Watch List at international departure points in Australia and certain orders in respect of the child’s passports.
The mother seeks orders virtually in line with those orders sought by the ICL with a slight difference concerning travel costs. But in respect of time spent by the child with the father, either in the UK or in Australia, instead of two periods of five days the mother seeks two periods of two days although her counsel indicated that such was not “immutable”. The mother also sought orders to provide for the eventuality that she was not permitted to relocate the child’s residence to the UK. The details of such orders are set out Annexure “A” to these reasons for judgment.
Annexed at Annexure “A” to these Reasons are the detailed orders sought by each of the parties.

Background

The mother was born in the UK in 1971 and is currently 47 years of age.
The father was born in the UK in 1974 and is currently 44 years of age.
In March 1999 the mother travelled to Australia on a working holiday visa which was extended to an employer-sponsored visa to enable her to work. In 2001, the mother returned to the UK and worked at various high profile events.
In 2000 the father bought a business called “C Pty Ltd”. C Pty Ltd operated out of D Street, Suburb E NSW … (“the D Street property”).
In January 2005 the mother returned to Australia.
The mother and father commenced living together in 2006 at the D Street property. This property comprised both a residential premises (“the residential premises”) and a business premises (“the business premises”).
In 2006 the parties were married in Sydney.
From January 2007 the mother assisted the father in the day-to-day running of his business.
The child was born in 2010 and is currently eight years of age.
In January 2011 the mother left the father and stayed with a friend, Ms F, for one week. She then stayed with another friend, Ms G, for about two days. During this time she invited the father to meet with the child on three occasions.
The parties separated on a final basis in January 2012.
At the beginning of 2012 the father began sleeping at the business premises. The mother and the child remained in the residential premises. During this time the parties had dinner together at least five nights a week and the father saw the child every day. The father continued to access the laundry and shower facilities in the residential premises.
In July 2012 the mother became physically and emotionally run down and developed systemic Candida in her mouth and all over one hand and one foot. She was diagnosed by her Chiropractor as suffering from insomnia and adrenal fatigue. In late 2012 the mother was diagnosed by Dr H with a medical condition.
On 12 September 2013 the mother booked a flight with the child to the UK because her father’s health was deteriorating. She and the child departed Sydney on 4 October 2013 and were scheduled to return on 12 November 2013.
On 10 November 2013 the mother informed the father by email that she was experiencing difficulties with her passport and that they could not return until 3 December 2013.
On 3 December 2013 the mother informed the father by email that they would not be returning from the UK.
On 3 March 2014 the father filed an Application for Return of a Child under the Hague Convention.
On 9 June 2014, the UK High Court ordered that the mother and the child were to return to Australia. On return the mother did not advise the father of her address.
On 28 June 2014 the mother returned to Australia with the child and her sister, Ms J. Ms J remained in Australia for two weeks and then returned to the UK. On return to Australia the mother eventually found accommodation at the K Refuge in L Town.
Under the conditions of the orders for return the father had agreed he would pay for the mother to receive half the rental bond and he would provide the motor vehicle. He did neither.
The father said that when the mother and the child returned to Australia, he saw the child on 8 July 2014, two occasions on 9 July 2014 and on 10 July 2014 for three hours on each occasion. The mother said that the father also saw the child on 6 July 2014, 11 July 2014 and 27 July 2014. The mother said that she organised for the father to spend time with the child on 3 August 2014 and 7 September 2014 but the father did not attend. The father said that he was not able to see the child for 12 weeks following 10 July 2014.
On 5 August 2014 the father received a certificate under s 60I of the Family Law Act 1975 (Cth) (“the Act”) when the mother did not attend mediation.
On 30 October 2014 an incident occurred. The father saw the mother and the child when walking down M Street and approached them. The father tried to talk to the child. He informed the mother that he just wanted to talk to the child. The mother started walking away from him and the parties entered Suburb N Police Station. The father contends that he suggested they go to the police station. Conversely, the mother asserted that she walked to the police station upon seeing the father. When in the police station the father crouched down in front of the police counter. The father said that this was so that he could speak to the child, while the mother alleges that it was so that the police could not see him. The father said that he went to the police station so that he could speak to the child. He said he had not seen the child in a long time. The police took a statement from each of them.
The father was served with a provisional Apprehended Domestic Violence Order (“AVO”) in November 2014. This AVO was later dismissed in March 2015. The mother said that the father was also issued with an interim AVO in November 2014.
On 15 December 2014 the father obtained a second s 60I certificate when the mother did not attend on that occasion.
On 22 December 2014 the mother advised the father’s solicitor that she had no objection to facilitating telephone calls and Skype communication between the child and the father.
On 13 March 2015 the father filed an application for the child to be listed on the Airport Watch List.
On 17 March 2015 the father filed an application for parenting orders in the Federal Circuit Court.
On 24 May 2015 the father spent time with the child at O Park under the supervision of his cousin Ms P.
In June 2015 the mother commenced a relationship with her partner, Mr Q. This relationship remains current. They do not live together but spend time together at each other’s residences.
On 16 June 2015 Judge Kemp made notations that the child would spend time with his father each alternate Sunday between 11.00 am and 5.00 pm to be supervised by Ms P, or as agreed between the parties. The child informed the mother that he had spent time with the father unsupervised on 5 July 2015 and 19 July 2015. As a result the mother requested that all supervisors provide undertakings.
On either 23 July 2015 or 29 October 2015 the parties agreed that the father would spend an additional two hours with the child each Wednesday supervised.
On 4 November 2015 orders were made by Judge Kemp by consent for the child to live with the mother and spend supervised time with the father every Wednesday for two hours, each alternate Sunday for six hours and four hours at Christmas. Orders were also made for the matter to be transferred to this Court.
On 2 June 2016 the mother contacted EE Contact Service to enrol on the waiting list.
In early June 2016 Mr Q commenced supervising time between the father and the child. The mother said that, over time, supervisors had either withdrawn their willingness to supervise, moved out of the Sydney metropolitan area or failed to sign undertakings required by her.
In June 2016 the parties met with Family Consultant, Ms S for the purpose of preparing a Child Responsive Program Memorandum.
On 16 October 2016 the child was spending time with his father at the Suburb T Aquatic Centre supervised by Mr Q. Mr Q smelt alcohol on the father’s breath. He also found two empty wine bottles in the father’s bag. He formed the view that the father was intoxicated and stopped the visit.
On 6 November 2016, during time spent between the father and the child, Mr Q smelt alcohol on the father’s breath. The child refused to engage with his father and the visit finished early.
During time spent between the father and the child on 8 January 2017 Mr Q smelt alcohol on the father’s breath. He said he had the same experience on 8 February 2017, 8 March 2017 and 15 March 2017.
On 21 February 2017 a report was prepared by Dr B, a child, adult and family Psychiatrist. The mother, father, Mr Q and the child had been interviewed on 20 December 2016.
On 20 March 2017 Mr Q withdrew his consent to supervise. Since March 2017 the father has not spent any time with the child. The father said that the mother has not allowed him to spend time with the child.
On 20 March 2017 the mother’s solicitors sent a letter to the father’s solicitors advising the father to enrol on the waiting list for the contact centre. The father’s solicitors replied on 30 March 2017 that a contact centre would be insufficient to meet the needs of the father and child.
On 1 June 2017 the mother’s solicitors sent an email to the father’s solicitors confirming a place was available at the contact centre.

CREDIT
The father

The father was responsive and forthcoming in his answers to questions. To his considerable credit, he made concessions readily including in relation to his alcohol and drug dependency.
But it is troubling that in his affidavit he denied drug and alcohol abuse yet conceded during cross-examination that he had used amphetamines.

The mother

The mother was quite articulate. But she appeared to have considerable difficulty providing responsive answers to questions. On numerous occasions she prevaricated. Even after I urged her to listen carefully to the question, she had difficulty giving a responsive answer. This was particularly the case if the answer would involve some concession on her part. She would go to considerable lengths to avoid making the concession.

Generally I regarded the mother as a poor witness. Where her evidence conflicts with that of the father I would prefer the latter.

Ms R

Ms R is the father’s aunt. She was forthright and responsive in her answers to questions.
Generally, I regard her as a witness of the truth. But where her evidence conflicted with that of Mr Q, I prefer his evidence.

Mr Q

Mr Q is the mother’s partner but they do not cohabit.
He was a most impressive witness. He listened carefully to questions. He made concessions readily. He took care in the choice of his words giving me the impression that he was concerned to provide an accurate response.
I have no hesitation in accepting his evidence as truthful. Where his evidence conflicts with that of other witnesses I prefer his evidence.

Dr U

Dr U is a pharmacologist, forensic toxicologist and chemist. He interpreted the results of scientific tests undertaken by the husband to ascertain whether he had been drinking alcohol. Dr U was articulate and responsive. He was professional and very helpful. I would not hesitate to accept the truthfulness and competence of his evidence.

Dr B

Dr B is the single expert child, adult and family psychiatrist. Dr B was responsive and professional. Where I refer to his evidence in these Reasons I accept that evidence.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA of the Act). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Subsection 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Subsection 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or engaged in family violence.
Subsection 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court cases of MRR v GR (2010) 240 CLR 461 and Bondelmonte v Bondelmonte (2016) 259 CLR 662.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him.
As indicated above, the father is seeking an order that the parties have equal shared parental responsibility for the child. But the mother is seeking an order that she have sole parental responsibility for him.
The father said that he has found it very difficult to be able to have a say in the major decisions concerning the child. He said that he tried to persuade the mother to introduce the child as a baby to formula when the mother was obviously having difficulties with breastfeeding. He said that the mother’s view about this always prevailed. He said that he has for a long time expressed his view that it would be in the child’s interests for the child to be vaccinated yet the mother has taken a different view and this has prevailed. The father said that he made his view clear to the mother that she should not home-school the child and that the child ought to be enrolled at a public school. Her view that she wanted to home-school the child and that this was appropriate for him prevailed.
When the mother informed the father that having taken the child to visit the UK she wished to remain there for longer, he made it very clear to her that he wanted the child to be returned to Australia. Again the mother’s view prevailed. It required an order of the English court to achieve restoration of the child to Australia.
The father said that in his opinion the mother’s decisions to have a friend breastfeed the child, not to have the child vaccinated, to home-school the child and to retain the child in the UK have been contrary to the best interests of the child.
On the other hand, the mother said that the reason that she has tended to make the parenting decisions for the child since his birth has been because she has not been able to rely on the father. She said that he has not been sufficiently available, helpful or supportive in decision-making because of his abuse of alcohol.
It is clear that for two parents to properly exercise shared decision-making requires at least a reasonable level of communication between them. Each of these parents accepts that there is a very poor level of communication between them.
Dr B said that when the parents were interviewed together the father said that there was no communication between them and no agreement between them. The mother said that there was a lot of disagreement between them. During cross-examination the father said that communication between the parents is basically non-existent going back to the time when the mother left for the UK. He said that the last time they communicated by telephone was a long time ago and that they last communicated by email in July 2014.
When Dr B was interviewing the parents together he said that the mother made a point of showing her discontent and lack of regard for the father. He said that she sat in his office with her shoulder facing the father and her eyes in downward gaze. The father wanted to talk with her. Dr B asked if the mother wanted to make any comments. He said that she did not respond and then indicated that she would prefer not to say anything. He said that she looked resolute and was lacking in regard for the father.
In my view, it would be quite inconsistent with the best interests of the child for his parents to share responsibility for making major decisions about him. I have no confidence that they would be able to make such decisions together. One of them only will have to have this responsibility. Clearly the mother is the child’s primary parent and there is no contest that it is in the child’s best interests to continue to live with her. Accordingly, this responsibility will have to be allocated to her.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

During Dr B’s interview of the child and his father, after initially hugging and cuddling his father the child somewhat surprisingly said what Dr B described as “a soliloquy of his concerns”. the child said:
I don’t like seeing him. I’m not sure about seeing him. I don’t want to see him anymore on Sundays. It’s okay on Wednesdays … Wednesdays are okay, Sundays I think they should be 4 hours. I have to see him because he doesn’t live with mum. I would like Sundays to be 4 hours; I think it would be a bit better.
Dr B said the child was not distressed at all when he was making these statements. Dr B said that the child also said “I have cousins in [the UK]. I want to go back there. I want to go to [the UK]. I have cousins to play with”. And the child said some further similar things. Subsequently the child said during the interview “I hate Skype I don’t like Skype at all. I turn it off as quickly as I can. I turn it off straight away within one second”. When the father said he and the child have an awesome time together on visits the child corrected him and said “I don’t”.
Dr B said that he did not believe these statements were necessarily a true reflection of the child’s wishes. He said that he thought the statements were statements which reflected very much the mother’s attitude. Dr B did not believe much weight should be placed on these statements because of this factor and also because of the child’s tender age. He said that it is clear that the child likes to see his father and although very happy with his mother, would like to be able to keep a strong substantial relationship with his father also.

Subsection 60CC(3)(b) – 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 Father

Dr B reported that when the child and his father met at interview the child “ran happily to his father and they cuddled and hugged each other”. Dr B said that there is a very close relationship between the child and his father, that he observed a strong bond between them and that they were very positive with each other.

The Mother

Dr B opined that there was a very positive and strong relationship between the child and his mother. He said that the child is particularly close to his mother, has his primary attachment to her and they have a close loving relationship. He said that there is some degree of separation anxiety but the child was able to separate from his mother when he interviewed them.
Dr B said that perhaps the mother and the child have an “overly close relationship” but he did not regard this as being outside normal levels.

Subsection 60CC(3)(c) – 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

As indicated above, since the child’s birth, the mother has made the parenting decisions. She said that this is because of the father’s substance and alcohol abuse problems. She said that she has not really been able to rely on him.
There is probably some force in what the mother has said. But I accept that from time to time the father has expressed his disagreement with some of her decisions as referred to above. And the mother has simply gone ahead and just done what she decided to do, such as retain the child in the UK against his wishes.
There is no question that the father has taken as much opportunity as possible to spend time with the child and to communicate with him.

Subsection 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The father has failed to maintain the child. The last time he paid any money for the child was in 2014 when the mother and the child returned from the UK. He said that he wanted to pay child support but that upon enquiry to the Child Support Agency he was informed that the mother would have to make an application for child support which she had not done. The father has not endeavoured to make any voluntary payments to the mother. The consequence is that she has had to bear the entire burden of financially supporting the child.

Subsection 60CC(3)(d) – 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 or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

It is clear that the child has quite a few friends, particularly the children of the mother’s close friends. It would be very difficult for the child to maintain these friendships if he was to relocate. The mother agreed that this is a concern but she hopes that he will be able to build new friendships in the UK.
Dr B said that if the child’s residence was relocated and the father remained in Australia this would be a major loss for the child. He described it as a significant loss in the child’s life which would leave a gap for him. Dr B said that just as the father had a gap in his own life in the loss of his father, the child would have a similar gap, and this is likely to have a long-term impact of the child being predisposed to relationship difficulties and potential depression as an adult. Dr B said that the mother would need to work hard to fill the gap, that is, by facilitating the opportunities for time between them and for communication by Skype. He said that the research shows that the loss of a parent prior to the child attaining 11 years of age can result in depression.
Dr B also indicated that the potential loss would need to be viewed in the perspective that the loss would be less to a child if a parent had a serious alcohol problem and was not able to contribute in a healthy way to the child.

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

This consideration is highly relevant in these proceedings. If the child’s residence was relocated to the UK this would make it very difficult indeed for him to develop his relationship with his father. Firstly, the distance poses a great limitation on the opportunity for time to be spent between father and child. An additional limitation is that neither of the parties is of substantial means. The mother has been earning income of approximately $600 per week after tax. She thinks that if she was permitted to relocate she might be able to work for longer hours than she can at present. This would be on the basis that one of her sisters would assist with some childcare for the child. The mother thinks that her financial circumstances might therefore improve if she was able to relocate.
On the other hand, the father’s long-time business failed. He has recently obtained employment but is in the early stages of working in the position. His income is $917 per week after tax which he pays rent of $200 per week for a room in a house.
In these circumstances, it is difficult to see how the parties between them would be able to fund more than one overseas visit each year.
They would endeavour to arrange for Skype communication between the child and his father as regularly as the child’s circumstances would permit.
It is important to consider whether the father might be able to relocate his residence to the UK. During the course of his cross-examination the father said that if the child’s residence was relocated to the UK he would consider moving to live there himself. But when I pressed him about how difficult it might be for him to do this he gave me every impression that it would be too difficult. He said that he has no family in the UK whereas he has “a wonderful family” in Australia. I understand this consists of his sister, his brother Mr V and his father. He also informed me that he has “a great career” in Sydney.
On the basis of this evidence I accept that it would be unrealistic to expect the father to relocate his own residence to the UK notwithstanding that he was born there.

Subsection 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

The Father

Dr B opined that the father had an adjustment disorder with depression and alcohol abuse. He said that there was a major disruption in the father’s life at age 11 when his parents separated and he virtually lost contact with his father. He said that he found his father in his late twenties. Dr B said that these matters might have impacted on the father’s self-esteem and self‑confidence and together with uncertainty about his racial and cultural origins, created some doubt about his identity development. Dr B said that the father’s self-esteem problems created a dependency dynamic which, under stress, he thought might have predisposed the father to alcohol and substance abuse as a coping mechanism.

In his report, Dr B said that the father had experienced times of difficulty coping but it appeared that he was functioning well and had achieved stability. The father had indicated to Dr B that he believed that he had been cured of his alcohol problem. Dr B said in his report that he was open to the possibility that the father had addressed his drinking problem. But he said that the nature of alcohol abuse was that it has an insidious way of recurring and might take years of abstinence to be confident whether to regard a recovery from alcohol abuse as stable. Dr B said that the father may have a dependent personality disorder involving vulnerability stress. He said that the father was perhaps dependent on the mother, then on alcohol and at the time was possibly very reliant on his parents. He said that the father did not seem to have good insight into the impact of his depression and drinking problems on his life and those of others.
Following evidence at the trial it has become clear that Dr B at interview had a too optimistic view that the father had resolved his alcohol problems. In his report, Dr B said that he thought the father was quite capable of providing for the biological, psychological and social needs of the child. To be fair, Dr B did express the view that if the Court was to find that the father still had a severe alcohol addiction then the father would not be able to provide for the child’s needs because he would not be sufficiently available to the child because of the alcohol problem.
In my view, when the father informed Dr B at interview that he believed he had been cured of his alcohol problem this was quite misleading. This is because the father admitted during the trial that he was drinking to excess and this became quite clear from results of the carbohydrate deficient transferrin tests. I shall refer to this again below. In my view, it is abundantly clear that the father continues to have a severe alcohol dependency problem.

The Mother

Dr B said that the mother, during adolescence, had suffered some mild depression which became exacerbated after her mother died. He said that she had some depression and adjustment difficulties with the child’s birth. He said that she has been assisted by counselling. He said that overall, the mother had no history of significant mental illness, anxiety or depression.
Dr B described the mother as a stable personality and high functioning individual. He said that she was adept at providing for the biological, psychological and social needs of the child.
He said that overall the mother was a capable, caring parent and could continue to provide well for the child. He said that the child has been developing well in the mother’s care.
In my view, there are some caveats on this.
Dr B said that after the child was born the mother had some depression and adjustment difficulties in relation to the new child and the change in her life, as well as marital problems. But he formed the view overall that she had no history of significant mental illness, anxiety or depression. He said with regard to her personality the mother seemed to have a solid and well-developed personality. He said she had a good attachment and good self-esteem development in her early life and at school. He said that he formed the view that she had a stable personality and was a capable, caring individual.
Dr B said that he believed that the mother is able to function well. He said that he believed she is very adept at providing for the biological, psychological and social needs of the child. He said that she has a clear view about what she believes is a healthy diet and food. But he raises a caveat in relation to health. He was unsure how fervent the mother’s beliefs are about being against immunisations and whether they are harmful to children. He goes on to say that he does not believe that the mother would intentionally put the child’s health at risk and whether there needs to be some education.
Yet, in my view, this is precisely what has occurred, that is, the child’s health has been placed at risk. The mother did not have the child vaccinated until a matter of days before the commencement of this trial. One of the consequences is that the child contracted whooping cough in April 2016. By way of explanation, the mother said that she was concerned that in order for the child to be vaccinated he would have to be physically restrained while the injection was administered and she did not want this. To be fair, Mr Q also said that the child has sensory processing disorder and does not like to be handled. He said that the child does not cope with being held down. But Mr Q did say that he had informed the mother that he thought it was important for the child to be vaccinated. The mother said that she decided to have the child vaccinated on 6 September 2017 because the father had been requesting for this to occur, that she thought that the child was now ready to undergo the vaccination, but if it had not been for the fact that this hearing was about to commence, the mother would not have had the child vaccinated. She said that she would have done so “at some point”.
In my view, this appears to be a somewhat nonchalant attitude to an important aspect of parental responsibility and reflects poorly on the mother’s capacity.
Dr B went on to say that the mother’s ideas about food dyes are not particularly harmful in that if the child does not have dyes in his food it is not going to cause him any particular harm.
In relation to the mother home-schooling the child, minds might differ about the appropriateness of this. The mother said that she decided to home-school the child because of difficulties he had been having with separation anxiety. She thought it would be very difficult to physically achieve his attendance at a public school. Her view about this was reinforced by Mr Q. The mother did try to transition the child to main school. She enrolled the child in the Transition to School Program which included taking the child to participate with other children in gardening. She said this did not go well. She also considered taking the child to enrol him at W School where they had a class for children with special needs but decided not to pursue this further. It was recommended to the mother that a program at Y Group might be helpful but the mother made no further enquiries about this. She said that the home-schooling was going well and that she would probably enrol him in a public school for 2018.
The father has serious doubts about the appropriateness of the mother home‑schooling the child. It is clear that he has expressed his opposition to this on numerous occasions including to the child.
Dr B said that he thought that home-schooling seemed to be a reasonable option for 2017 because the mother was still struggling to become settled in her residence and was uncertain about whether she would be remaining in Australia. He said that he thought another motivation for the mother to do home-schooling might be so as not to entrench the child in an Australian school which would involve developing attachments to other children and persons which would make it even harder for the mother to relocate to the UK. But he said that he would be concerned if home-schooling continued in the longer term.
In my view, in all these difficult circumstances it would be unfair to criticise the mother for making the decision to home-school the child, at least at this point. The mother has said that she would endeavour to enrol him in school in 2018. She said that if she is permitted to relocate with the child to the UK she would endeavour to have the child enrolled at the same school where his cousin attends, Z School.
The mother said that she supports the child having a relationship with his father. It is clear that there have been serious difficulties with this. Firstly, the mother appears to take it virtually entirely upon herself to make all decisions concerning the child. She said that she has done this because since the child’s birth the father has been relatively unavailable. The inference I draw from this is that this has been as a consequence of his dependence on drugs and alcohol. There is the very serious matter of the mother’s wrongful retention of the child in the UK. She was well aware that the father required the child to be returned to Australia yet it took court proceedings pursuant to the Hague Convention to achieve restoration of the child to Australia. The mother’s explanation was that she lost her passport and that some time was involved in obtaining a replacement. She said that she discussed this matter with the father and indicated that she would still return. But after a couple of months she was feeling very comfortable with the support she had from her sisters living in the UK and decided to stay longer.
I must say I thought that the mother was somewhat evasive about this matter and appeared to me to avoid conceding that she had made the decision not to return the child to live in Australia. Again, in my view, this matter reflects poorly on the mother’s capacity and her sense of parental responsibility. It does not inspire confidence that the mother is supportive of the child having a relationship with his father. But it is the case that the mother did arrange Skype communication frequently between the child and his father during their period residing in the UK.
It is troubling that when Dr B was interviewing the father and the child together Dr B said that during the interview, somewhat surprisingly, the child, as if pre-prepared, launched into a soliloquy of his concerns saying “I don’t like seeing him. I’m not sure about seeing him. I don’t want to see him anymore on Sundays. It’s okay on Wednesdays”. Dr B said that the child was not distressed at all when making such statements. Then the child said “Wednesdays are okay, Sundays I think they should be 4 hours. I have to see him because he doesn’t live with mum. I would like Sundays to be 4 hours; I think it would be a bit better”.
The mother, when offered an opportunity about whether she could explain this, said that she thought the child had been coping quite well with Wednesdays but was struggling with the time spent on Sundays.
But Dr B said that the child went on to say “I have cousins in [the UK]. I want to go back there. I want to go to [the UK]. I have cousins to play with”. Dr B said that the child went on to say similar supportive things about going to the UK.
In my view, this behaviour by the child reflects an enmeshment of the child in the mother’s desire to relocate to the UK.
The father sees the requirement for supervision of his time with the child as having been unnecessary and inconsistent with the mother having a commitment to support the child’s relationship with him. But, in my view, given the mother’s long experience of him suffering from alcohol and drug dependency, the requirement for time spent to be supervised was quite appropriate.
The father also has a perception that the mother has not facilitated the child’s communication with him by Skype. The mother said that Skype presents particular challenges for the child. She said that she has difficulty settling the child down to focus on Skype. In this regard, she has found it helpful to set up an electronic game close to the Skype screen which she says she has found useful in assisting the child to concentrate and not simply to become frustrated with Skype to the point where he refuses. The mother has said that if the child does not want to talk on Skype she cannot make him do this. It is difficult to know whether the mother has been sufficiently committed and active in encouraging the child to use Skype.
On the positive side, Dr B said that he believed the mother would support the relationship between the child and his father although he did think that she found it difficult to promote the relationship. He said that she has kept contact between them going since returning from the UK and he thought that she would comply with the Court orders.

Subsection 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Dr B described the child as being “clearly a bright child who has great potential”. He said that the child appears to be developing well both cognitively and emotionally for his age.
The mother said that the child has separation anxiety and some problems with his fine motor skills which affects his writing. He has been undertaking occupational therapy since late 2014. The mother said that he is sensitive to noise and sensitive to people.
Dr AA, paediatrician, said in May 2017 that he “suspected” that the child has autistic spectrum disorder. An occupational therapist has diagnosed the child as having sensory processing disorder.

Subsection 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

This is not relevant.

Subsection 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

In my view, the mother is well ahead of the father in relation to this consideration. Dr B expressed the clear view that she was the more competent parent. But as I have said elsewhere the fact that she wrongfully retained the child in the UK when it was clear that the child’s father wanted him returned to Australia reflects poorly on her attitude to the responsibilities of parenthood, as does her dilatory attendance to have the child vaccinated.
Having said this, the mother has been the child’s primary parent. She has undertaken most of the care of the child, including most of the financial responsibility for him with little support from the father. She has had the ongoing worry associated with his alcohol and drug abuse.
The father, while he gives every indication of wanting to be a good parent, has not been able to prioritise the child’s needs above his own need to indulge himself in alcohol or substances. He conceded that recently he drank alcohol to excess. In any event, the ICL arranged for Dr U, pharmacologist and forensic toxicologist, to be provided with various test results for the father involving blood and breath testing for alcohol, liver function tests (GGT test) and carbohydrate deficient transferrin (“CDT”). Dr U opined that elevated GGT and CDT results were consistent with the regular ingestion of an “excessive” amount of alcohol in the 10 days to two weeks prior to collection of the sample (on 15 June 2017). In my view, this made it clear that the father had relapsed seriously into abuse of alcohol.
Alcohol abuse is a very serious parenting deficiency. Dr B was very candid about the fact that competent parenting demands a constant level of care and attention 24 hours a day. He said that to be a responsible parent requires a parent to be able to foresee problems and be able to deal with those problems and that alcohol consumption affects judgment in this regard. He said that for a parent to be able to properly function and be in control in a healthy way is inconsistent with alcohol abuse.

Subsection 60CC(3)(j) – any family violence involving the child or a member of the child's family

There is no suggestion of any physical violence in this case.
The mother has asserted that she has felt intimidated by the father but acknowledged to Dr B that there was never any physical harm or threat. She said that the father was controlling shortly after the child was born and unsupportive in her efforts to breastfeed the child. This appears to have been a period of great frustration and probably considerable distress for each of the parents. There was considerable argument going on between them. Dr B said that he thought that the mother felt unsupported and was probably unsupported by the father because of his drinking problem.
There was the incident between them in 2013 when ultimately they found themselves at the police station. I have referred to this above. Their accounts were quite different. The father said that he suggested that they go to the police station because he wanted to be able to spend some time with the child. The mother said that she went to the police station because she understood there were legal restraints which prevented he father from approaching her or the child.
It is clear that the parties had a lot of verbal arguments.
Dr B said that when the father and the mother were present together at interview with him he did not observe the mother to show any fear or worry. He said that it was more an “irritable anger response”.
In my view, it is more probable than not that there have been times when the father has endeavoured to exercise control over the mother. And it emerged during the trial that the father had been convicted of assault against his former partner. But, in my view, this is not a case which falls within the definition of family violence under the Act.

Subsection 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter

This is not relevant.

Subsection 60CC(3)(l) – 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

Given that the major issue in the proceedings is whether it is in the child’s best interests for his residence to be relocated to the UK and each of the parents has held vigorously to their particular case, it is difficult to see that a particular order would be least likely to lead to the institution of further proceedings.

Subsection 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

The child has special needs. He has sensory processing disorder. The mother says that he has separation anxiety and difficulties with his fine motor skills. That is, he has problems with letter forming and handwriting. His numeracy is good. He struggled to read but is now able to read.
There remain questions about whether the child might have autism. Dr AA, Paediatrician, saw the child for the first time in May 2017 and suspects the child has autistic spectrum disorder. Dr AA has referred the child back to the Suburb BB Community Paediatric Clinic for further assessment. The assessment has not been undertaken yet because the child is still on an apparently long waiting list.
The mother does not think the child needs to be in a special needs class.

Primary Considerations

I return to the primary considerations.
In an ideal sense, it would be important for the child and the father to have a meaningful relationship. The difficulty is that the father’s severe alcohol dependency has precluded this. As Dr B said, the father has prioritised his need for alcohol above the child’s needs. The father has a loving relationship with the child but it is not a meaningful relationship.
What is meant by meaningful relationship was the subject of consideration in the case of McCall & Clark (2009) FLC 93-405. The Full Court in this case accepted the interpretation of “meaningful relationship” set out by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at 527 as follows:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

Given the father’s dependence on alcohol and inability to desist from its use, even at times when he is spending time with the child, one cannot be confident that he would be able to provide a safe environment for the child at all times. Accordingly, their time together has had to be supervised. Unfortunately, there is an artificiality and serious limitation which accompanies supervision. A consequence is that whereas a meaningful relationship would involve the father and the child exploring things together and in the child relying on his father, such relationship building and colouring experiences cannot be achieved because their time must be supervised in the interests of the child’s safety.
Unless the father is able to achieve a state of complete sobriety, and maintain sobriety, it is difficult to see that he will ever have any sort of substantial relationship with the child. This is because s 60CC(2)(b) requires the Court to consider as a primary consideration the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. And s 60CC(2A) requires the Court to give greater weight to this protective primary consideration than to that relating to meaningful relationship. In my view, the child will be exposed to unacceptable risk if, in the interests of endeavouring to allow an opportunity for a meaningful relationship with the father, the Court were not to impose a requirement for supervision of time.
Dr B expressed the opinion that if the Court came to the view that the father had a more serious problem with alcohol than he thought he had at the time of his report, then time spent between the father and the child would require supervision. Dr B said that if this was the case then he would recommend four short periods of supervised time consisting of a few hours each per year as appropriate.
As indicated above, in my view, on the basis of the scientific test results as interpreted by Dr U, the father has relapsed into excessive use of alcohol. In my view, the father has a considerably more serious problem with alcohol dependency than Dr B thought he had at the time of his interview.

Relocation

The mother wishes to move to live in the UK to obtain support from members of her family, particularly her two sisters. She said that each of them has offered to assist her in caring for the child. She said that when she and the child went to the UK in October 2013 she enjoyed the emotional and financial support of family and friends.
The mother is confident that she would be able to earn more income in the UK than in Australia. Here she has been working in retail earning approximately $600 per week whereas she would endeavour to work utilising her training in the UK. She said that she has maintained contacts in this area of business. She said that she would probably work the same hours whether she worked in Australia or in the UK.
The mother said that the child has a good relationship with each of her sisters in the UK and with his two cousins. She said that the child has regular communication with them by Skype and other means.
The mother proposes to enrol the child at Z School in the UK which one of his cousins attends.
On the other hand, the father is opposed to the child’s residence being relocated to the UK. As indicated above, Dr B said that the child has a close relationship with his father and for the child to relocate away from Australia would represent a loss for him because of the very limited opportunity the child would have to develop his relationship with his father. But having said this, as indicated above, Dr B opined that because of the father’s lack of availability to the child as a consequence of his serious alcohol dependency, the appropriate amount of time spent between father and son would be four occasions per year, each of approximately three hours duration. And Dr B went on to say that on the basis that such “recognition type of contact” was appropriate, then this could be accomplished by two occasions of time between them which could be achieved even if the mother and the child were to relocate to the UK. Accordingly, on balance, Dr B supported the mother and the child relocating their residence to the UK.
In my view, the best interests of the child would be served by permitting the mother to relocate the child’s residence to the UK. I accept that she has a very strong desire to live in the UK where she will have the considerable benefit of emotional and physical support of her sisters and friends. She wishes to pursue employment in the costume making industry in which she was previously employed and from which she derived considerable satisfaction. I expect that she would be happier in the UK with her family close by and more settled than she has been in Australia where she is, in reality, parenting alone, with only some support from Mr Q.
The disadvantage for the child is that his relationship with his father would be expected to deteriorate and he will have to leave his friends and his life in Australia.
I accept that relocation might not proceed smoothly for the child given his disability. But one would expect him to make new friends, in time, notwithstanding his disability. And he will have the pleasure of being able to enjoy an even closer relationship with his cousins with whom he appears to get on well.
I accept, as Dr B has said, that to move so far away from the father would be a loss for the child. But as Dr B has also said, the father is relatively unavailable to the child because of his serious alcohol problem. I am satisfied that the appropriate “recognition type of contact” supported by Dr B would be able to be achieved if the child was to relocate to the UK.
The mother has indicated that she is prepared to pay one half of the travel costs of the father to fly to the UK and have supervised time with the child. She said that her sisters would be able to provide the supervision. She also said that she is prepared to assist and encourage the child to communicate regularly with the father by Skype. There have been some difficulties with this method of communication in the past as I have observed. But the mother said that this worked quite well when she and the child were in the UK in 2013 and 2014. And Dr B said in his view the mother would comply with Court orders.
The mother’s partner, Mr Q, said that he would not be able to move to reside in the UK, particularly because he is still supporting one of his sons. He said that he might be able to relocate in 2020. Accordingly, the child would no longer have the same relationship with Mr Q as he has come to enjoy.
Like Dr B, the ICL supports the mother’s application to relocate as being in the child’s best interests.
In all the circumstances, in my view, it would be in the child’s best interests to permit his residence to be relocated to the UK.

Home-schooling

As indicated above, the father seeks an order that the child be enrolled in a school. I am satisfied that it would be in the child’s best interests for home schooling to end and for him to attend a normal school. As indicated above, Dr B thought home-schooling had been a reasonable option in 2017 for the reasons stated but he did not support home-schooling for the child “in the longer term”. I accept this opinion. Accordingly, I propose to make the order sought by the father in this regard.

Vaccinations

The father also seeks an order to ensure that the child receives appropriate vaccinations. I have referred to the history of this matter above and to the different views of the parents about this. Dr B said: “In relation to health, I am unsure as to how fervent [the mother’s] beliefs are about being against immunisations and whether they are harmful to children…However, if she avoids immunisation this could be of concern for [the child’s] health in relation to those diseases”.
As I have said, in my view, the mother placed the child’s health ta risk by not having appropriate vaccinations administered to him, although eventually the mother had him vaccinated. I consider it clearly to be in the child’s best interests for him to have vaccinations as recommended by an appropriately qualified medical practitioner. I propose to make an order along the lines of what the father is seeking but different in form.

I certify that the preceding one-hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 20 December 2018.

Associate:

Date: 20 December 2018

ANNEXURE A
Minutes of Orders Sought by the Parties
MOTHER

That the mother has sole parental responsibility for the child, the child X born … 2010 (“the child”).
That the mother be permitted to remove the child from the Commonwealth of Australia to the United Kingdom.
That the child spend time with the father each alternating year, on the first year following the date of these orders, in the United Kingdom, for 2 periods of 2 days during the hours of 10.00am and 1.00pm each day. Such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.
In the other alternating year in Australia, for 2 periods of 2 days during the hours of 10.00am and 1.00pm each day. Such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.
That the time in orders 3 and 4 above be supervised by a supervisor agreed between the parties and failing agreement by a professional contact service.
That the mother be responsible for all costs of travel for herself and the child for order 4.
That the father be responsible for all costs of travel for himself and the child for order 3.
Pursuant to order 8 of the Independent Children’s Lawyer’s Minute.
That each of the parties are restrained from denigrating the other or any relative or friend of him or her, in presence or hearing of the child, or otherwise permitting any other person to do so.
That the father be restrained from consuming alcohol in the presence of the child or for 12 hours before any period the child spends time with the father.
That each of the parties, whilst the child is in their respective care, shall forthwith notify the other in the event of the child being affected by serious illness, sustaining a serious injury, or requiring medical attention.
The parties shall respectively advise the other of any institution providing any medical care, counselling or the like to the child whilst in that party’s care.
That the mother shall do all acts and things necessary to authorise the child’s school/education provider to provide the father with duplicates/copies of all school reports, notices and other correspondence and, in the event that the school refuses to do so, then the mother shall ensure the father is provided with a copy of the child’s reports, notices and other correspondence.
That the mother retain custody of the child’s Passport.

In the event that the Court does not permit the mother to remove the child from the Commonwealth of Australia to relocate to the United Kingdom then:

That the mother has sole parental responsibility of the child.
That the child spend time with the father on 4 occasions per year, on each of those occasions for a period of 3 hours. Such time to be agreed between the parties and to occur during each of the child’s school holiday periods.
That the time pursuant to Order 16 be supervised by a person agreed between the parties and failing agreement by a supervision contact centre.
Pursuant to order 8 of the Independent Children’s Lawyer’s Minute.
That each of the parties are restrained from denigrating the other or any relative or friend of him or her, in presence or hearing of the child, or otherwise permitting any other person to do so.
That the father be restrained from consuming alcohol in the presence of the child or for 12 hours before any period the child spends time with the father.
That each of the parties, whilst the child is in their respective care, shall forthwith notify the other in the event of the child being affected by serious illness, sustaining a serious injury, or requiring medical attention.
The parties shall respectively advise the other of any institution providing any medical care, counselling or the like to the child whilst in that party’s care.
That the mother shall do all acts and things necessary to authorise the child’s school/education provider to provide the father with duplicates/copies of all school reports, notices and other correspondence and, in the event that the school refuses to do so, then the mother shall ensure the father is provided with a copy of the child’s reports, notices and other correspondence.
That the mother retain custody of the child’s Passport.

In the event that the court permits the mother and child to relocate to the United Kingdom and the father also relocates to the United Kingdom then:

That the mother has sole parental responsibility for the child.
That the mother be permitted to remove the child from the Commonwealth of Australia to the United Kingdom.
That the child spend time with the father on 4 occasions per year, on each of those occasions for a period of 3 hours. Such time to be agreed between the parties and to occur during each of the child’s school holiday periods.
That the time pursuant to Order 27 be supervised by a person agreed between the parties and failing agreement by a supervision contact centre.
Pursuant to order 8 of the Independent Children’s Lawyer’s Minute.
That each of the parties are restrained from denigrating the other or any relative or friend of him or her, in presence or hearing of the child, or otherwise permitting any other person to do so.
That the father be restrained from consuming alcohol in the presence of the child or for 12 hours before any period the child spends time with the father.
That each of the parties, whilst the child is in their respective care, shall forthwith notify the other in the event of the child being affected by serious illness, sustaining a serious injury, or requiring medical attention.
The parties shall respectively advise the other of any institution providing any medical care, counselling or the like to the child whilst in that party’s care.
That the mother shall do all acts and things necessary to authorise the child’s school/education provider to provide the father with duplicates/copies of all school reports, notices and other correspondence and, in the event that the school refuses to do so, then the mother shall ensure the father is provided with a copy of the child’s reports, notices and other correspondence.
That the mother retain custody of the child’s Passport.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FATHER
Parental Responsibility

That the parties have equal shared parental responsibility for the child X born … 2010.

Live With and Restraint on Relocation

That the child live with the mother.

That the mother be restrained from relocating the child from the Commonwealth of Australia.

Immunisation

The mother forthwith do all acts and things necessary to ensure that the child receives any and all childhood vaccinations/inoculations so that the child is fully immunised to a level which is equivalent to a child of his age as prescribed or recommended in the current National Immunisation Program Schedule published by the Australian Government, Department of Health and Ageing.

Once the child’s level of immunisation has been brought up to date as provided in the preceding paragraph of this Order, the mother do all acts and things necessary to ensure that the child continues to receive into the future such immunisations as are recommended within the National Immunisation Program, or its successor, for a child of his age.

The mother ensure that she provides the father with written confirmation of all vaccinations/inoculations performed on the child.

That the mother forthwith provide the child’s current or future treating doctor a copy of these orders.

Schooling

The mother do all acts and things necessary required to seek the assistance of the Y Group service with a view to enrolling the child in a school for the 2018 school year.

Father’s Rehabilitation

That the father commence and complete the residential alcohol rehabilitation program known as CC.

That the father provide the mother with written confirmation of his commencement in the program.

That the father provide the mother with written confirmation of the completion of the program.

That upon the completion of the program the father to continue with counselling as recommended by the organisers of the program.

Spend Time With

That upon providing the mother with written confirmation of his commencement of the residential rehabilitation program the father shall spend time with the child as follows:
a.    Each Wednesday from 5.30pm to 7.30pm;
b.    Each alternate Sunday from 11.00am to 5.00pm;
c.    At any other times as agreed between the parties; and
d.    Communication via Skype for a period of no more than 30 minutes each Monday and Thursday evening.
The time the father spends with the child pursuant to order 7 with the exception of the Skype time shall be supervised by either:
a.    Ms R;
b.    Mr Q;
c.    Mr DD;
d.    Ms DD; or
e.    Such other person agreed by the parties.
Upon the father successfully completing the first 90 days of the residential rehabilitation program the father shall within 30 days do all acts necessary to submit himself to a carbohydrate deficient transferrin test (CDT test).

If the CDT test results are within the normal range, the father shall spend time with the child for 12 weeks as follows:
a. Each Wednesday from 5.30pm to 7.30pm; and
b. Each alternate Sunday from 11.00am to 5.00pm.
The father before the expiry of the 12 week period stipulated in order 10, and no earlier than 9 weeks, do all acts necessary to submit himself to a second CDT test.

If the CDT test results are within the normal range, the father shall spend time with the child for a further 12 weeks period as follows:
a.    Each Wednesday from 5.30pm to 7.30pm;
b.    Each alternate weekend from Saturday 11.00am to Sunday 11.00am; and
c.    Such further times as agreed between the parties.
Upon the expiry of the 12 week period stipulated in order 12 the father shall spend time with the child as follows:
a.    During the New South Wales gazetted school terms each Wednesday from 5.30pm to 7.30pm;
b.    During the New South Wales gazetted school terms each alternate weekend from Saturday 11.00am to Sunday 5.00pm;
c.    During the New South Wales gazetted school holidays for term 1, 2, 3 from the conclusion of school on the final day of term to the following Friday at 5.00pm;
d.    During the Christmas period from 5.00pm 24 December to 12.00pm 25 December and 10 January to 17 January 2017;
e.    Such further times as agreed between the parties.

INDEPENDENT CHILDREN’S LAWYER

All previous parenting orders are discharged.
The Mother is to have sole parental responsibility for the child X, born … 2010 (“the child”).
The mother is permitted to relocate the child’s residence from the Commonwealth of Australia to the United Kingdom.
The child is to spend time with the father as follows:
a.In even numbered years, in the United Kingdom, for 2 periods of 5 days during the hours of 9am to 3pm each day, such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.
b. In odd numbered years, in Australia, for 2 periods of 5 days during the hours of 9am to 3pm each day, such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.
c. At any other time that the father is able to pay his own costs of travelling to the United Kingdom, for 2 periods of 5 days during the hours of 9am to 3pm each day, such dates to coincide with the child’s school holiday periods, on dates to be agreed between the parties.

The father’s time in order 4 is to be supervised by a supervisor agreed between the parties.
The parties will share equally the costs of the father’s airfare to fly to [the UK] in alternate years.
The parties will share equally the costs of the airfare for the mother and the child to fly to Australia in alternate years.
The mother is to facilitate skype/facetime calls between the father and the child on Sunday each week at 10am UK time, and at any other time the child may request.
Each of the parents is restrained from denigrating the other parent or any relative or friend of him or her, in the presence or hearing of the child
The father is restrained from consuming alcohol in the presence of the child or for 12 hours before any period the child spends time with the father.
Each of the parents, while the child is in their respective care, shall forthwith notify the other parent in the event of the child being affected by serious illness, sustaining a serious injury, or requiring medical attention.
The parents shall respectively advise the other parent of any institution providing any medical care, counselling or the like to the child while in that party’s care.
The mother shall do all acts and things necessary to authorise the child’s school or education provider to provide the father with copies of all school reports, notices and other correspondence normally made available to parents and in the event the school refuses to do so, the mother shall ensure the father is provided with a copy of such documents.
The mother shall retain custody of the child’s Australian and United Kingdom passports and the mother is authorized and permitted to apply for and receive an Australian passport and a United Kingdom passport without first obtaining the consent of the father.
The mother is to engage in counselling to assist her in establishing effective communication with the father.
Leave is granted for the mother to provide her counsellor with the report of Dr B dated 21.2.17.
The child’s name is to be removed from the PASS Alert System (watchlist).
The child is to be enrolled in school in the United Kingdom as soon as possible after the mother and child arrive there.
The mother is to ensure the child receives all vaccinations recommended by the child’s general practitioner.

[2018] FamCA 1114

20 December 2018

Key Legal Topics

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Family Law

Legal Concepts

Jurisdiction

Costs

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Procedural Fairness