Watts & Mantello (No 2)

[2016] FamCA 788

FAMILY COURT OF AUSTRALIA

WATTS & MANTELLO (NO 2) [2016] FamCA 788

FAMILY LAW – CHILDREN – International relocation – Whether it is in the best interests of the child to relocate to the United Kingdom with the mother - Where the mother is living in England with two children from a previous relationship – Where the child has been diagnosed with ADHD and Autism Spectrum Disorder – Where the child has a close and loving relationship with both parents – Where either parent would be capable of meeting the child’s special needs.  

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Baghti & Baghti [2015] FamCAFC 71
Goode & Goode (2006) FLC 93-286
SCVG & KLD Error! Hyperlink reference not valid.
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT: Ms Watts

RESPONDENT: Mr Mantello

INDEPENDENT CHILDREN’S LAWYER: Ms Doris Chan

FILE NUMBER: BRC 10571 of 2014

DATE DELIVERED: 16 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 14 - 15 September 2016

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Final Orders

1. That the mother and father have equal shared parental responsibility for the child, C born … 2009 (“the child”) in relation to major long term issues (as that term is defined in section 4 of the Family Law Act1975 (Cth) (as amended)) in relation to the child.

2. That the child live with the father.

3. That the mother spend time with and communicate with the child at all reasonable times as may be agreed between the mother and father and failing agreement:

   (a)       Twice per week on each Sunday evening at 6.30 pm Queensland time and each Wednesday evening at 6.30 pm Queensland time with the mother to initiate the communication by either Skype, Facetime or telephone and the father shall ensure that the child is available to receive such communications from the mother provided that, if the child is unable to be available due to illness, the father shall immediately notify the mother by email and provide the mother with information as to the child’s condition and the time and date for make-up communication on another day at 6.30 pm Queensland time.

   (b)       During the following Queensland gazetted school holiday periods:

   (i)For all of the June/July school holiday period each year, commencing June 2017, in the United Kingdom with handover to be facilitated to the mother by no later than the first Sunday (London, England time) of the said school holiday, with costs of the child’s travel (and any accompanying adult) from Brisbane, Australia to London, England return by air to be met by the mother.

   (ii)The June/July school holiday time with the mother shall conclude on the last Saturday (Brisbane, Australia time) of the school holiday period, thus enabling the child to travel by air back to Brisbane by the last Saturday.

   (iii)All handovers of the child during the June/July school holiday time shall take place at the international airport in London upon the child’s arrival, unless the parties agree otherwise in writing.

   (iv)In relation to the June/July school holiday time in the United Kingdom, the mother shall be responsible for making all airline bookings for the child’s travel and she shall provide the father with a copy of the itinerary by no later than three weeks before the child’s end of school term in June each year.

   (v)For three weeks in the December/January school holiday periods in each year in the United Kingdom with handover to be facilitated to the mother by no later than the first Sunday (London, England time) of the said school holiday, with the child to spend the first half of such holidays in the mother’s care in December 2016 and each alternate year thereafter including Christmas Day and Boxing Day and the child shall spend the first half of the school holiday period in the father’s care in December 2017 and in each alternate year thereafter, with the costs of the child’s travel (and any accompanying adult) from Brisbane, Australia to London, England return by air to be met by the father.

   (vi)For three weeks in the December/January school holiday periods in each year in the United Kingdom with the child to spend the second half of such holidays in the mother’s care in December 2017/January 2018 and each alternate year thereafter excluding Christmas Day and Boxing Day and the child shall spend the second half of such school holiday periods in the father’s care in December 2016/January 2017 and in each alternate year thereafter, with costs of the child’s travel (and any accompanying adult) from Brisbane, Australia to London, England return by air to be met by the father.

   (vii)All handovers of the child during the December/January school holiday time shall take place at the international airport in London upon the child’s arrival, unless the parties agree otherwise in writing.

   (viii)Where the child is spending the second half of the December/January school holidays with the mother in the United Kingdom, the mother shall ensure that the child is returned to Australia in sufficient time to commence the first day of the new school year in Australia.

   (ix)For the December/January school holiday time in the United Kingdom, the father shall be responsible for making all airline bookings for the child’s travel (and any accompanying adult) and he shall provide the mother with a copy of the itinerary by no later than three weeks before the child’s end of school term in December each year.

4. That the father facilitate the child’s communication with the mother and his siblings, D and E, at all reasonable times upon request of the child including by Skype, Facetime, email and telephone.

5. That if the mother should travel to Australia at any time she shall be at liberty to spend time with the child including overnight time for a period of two weeks provided that she ensures that any school commitments for the child are met.

6. That this Order shall be sufficient authority for each party to obtain from the child’s school and any treating medical practitioners and health carers, at the request and cost of the respective parent, any report, letters, documents and information pertaining to the child’s education and health.

7. That each party shall keep the other informed at all times of any illness or injury suffered by the child whilst in their care that requires medical attention including the nature of the illness/injury, the treatment recommended and the name and address of the treating medical practitioner/hospital/medical centre and each party shall notify the other party immediately of any medical emergency pertaining to the child.

8. That all outstanding applications be dismissed and removed from the list of cases requiring determination.

9. That the Independent Children’s Lawyer be discharged.

10. Pursuant to section 65DA(2) and section 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 parties adjust to and comply with an order are set out in the fact sheet attached hereto.  And these particulars are included in this Order.

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 Watts & Mantello (No 2) 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 BRISBANE

FILE NUMBER: BRC 10574  of 2014

Ms Watts

Applicant

And

Mr Mantello

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Watts (“the mother”) and Mr Mantello (“the father”) are in dispute about what parenting order is proper for their child, C (“the child”), born in 2009.

2. C has lived in Australia with his father since the mother relocated to the United Kingdom early in 2016. The mother seeks an Order that will enable her to take the child to London to live with her permanently. The father opposes the child’s relocation.

Relevant background facts

1. The mother and father lived together in a de facto relationship from 2009 to 2013 but continued to share the same residence until the mother moved out in January 2014.

2. The mother was born in the United Kingdom in 1972 and is a full time homemaker. She has two other children, namely, E (“E”) born in 2005 and D (“D”) born in 2002, who live with her in rented accommodation at Suburb F, London, United Kingdom. The mother has dual Australian/British citizenship.

3. D and E’s father, Mr G, lives in Country H in Europe, where the mother also lived until 2008. She returned to London at that time.

4. The father was born in Australia in 1969 health professional. He lives in rented accommodation in Region I, Queensland. He has dual citizenship.

5. The mother, father and children migrated to Australia in 2010.

6. After the mother moved out of the joint home, the child lived with his mother and half siblings and spent time with his father. From mid 2015 he spent equal time with his parents until January 2016 whereupon he lived full time with the father.

7. The mother and her two older children relocated to the United Kingdom on 13 January 2016. This was said by the mother at the time to be on a “trial” basis to see how the child “adapted”.

8. Since the mother’s departure the child has spent time with her from 2 August to 11 August 2016 and again shortly before and during this trial.  He communicates with her by telephone and Skype usually weekly although on occasions not that frequently. D and E usually speak to the child on occasions he speaks to the mother.  

9. D and E have spent time with their father on three occasions since relocating to the United Kingdom this year. For the period they lived in Australia they saw their father on one occasion each year save that D lived with his father in Country H from January to August 2014. D was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) ‘the predominantly inattentive form’ by Dr I, a paediatrician, in 2015. He was initially trialled on medication known as ‘Ritalin’ but because of the doctor’s concern about the ‘very high’ dose he switched him to ‘Concerta’. When advised by D and the mother that this was nowhere near as effective he was trialled on a third medication known as ‘Vyvanse’ as the mother was “keen to trial treatment with Vyvanse, which she has researched online” according to exhibit 9.  There is no further evidence about D after 30 October 2015 save that the mother says he is seeing a child psychiatrist in London.  D and E attend a local public high school in London.  This is D’s seventh school and E’s fourth.

10. C has been diagnosed with ADHD and Autism Spectrum Disorder (ASD) by Dr I. The child also suffers from Pryroles Disorder which appears to affect what food his body can process. This has an impact on his diet.

11. At the mother’s instigation, the child attended upon a psychologist, occupational therapist and speech pathologist weekly or fortnightly during 2015 and according to the mother greatly benefited and improved with that assistance. His attendance upon those professionals ceased prior to the mother’s relocation from Australia although the mother envisaged that the father would maintain their involvement. The child has not seen Dr I since August 2015. At that time Dr I recommended a trial of Ritalin medication for the child. This was opposed by the father and did not occur.

12. C has received treatment/assistance/assessment from the following health professionals:

    a)Dr I – paediatrician

    b)Dr J - clinical neuropsychologist

    c)Mr K – registered psychologist

    d)Ms L – speech pathologist

    e)Ms M – occupational therapist

    f)Ms N – speech pathologist

    g)Dr O – general medical practitioner and nutrition expert

13. C commenced his prep year at P School in January 2015 and is now in grade one.

Proposals of the parties

1. The mother proposes to relocate the child to the United Kingdom and if the father also relocates she proposes that the child spend equal time with each parent on condition that the father follows any medical treatment plan recommended for the child. If the father does not relocate she proposes that the child spend holiday time with the father on one or two occasions each year and communicate by electronic means. Up until the time of submissions the mother proposed that she have sole parental responsibility in relation to major long term issues for the child but changed her position to seek equal shared parental responsibility. The mother will not return to live in Australia.

2. The father proposes that the child remain in Australia and spend holiday time with the mother on one or two occasions each year and communicate by electronic means. If the mother were to resume living in Australia he proposes that the child spend equal time with each parent. The father seeks an order for equal shared parental responsibility. The father will not relocate to the United Kingdom.

3. The Independent Children’s Lawyer proposes that the child remain in Australia with his father and spend time with his mother and siblings in London on two occasions each year and communicate by electronic means. The terms of the Order proposed by the Independent Children’s Lawyer are set out in exhibit 11.

Significant issues

1. Each parent accepts that the child will be well cared for whether he lives with the mother or the father. Indeed, they each propose that if it were reasonably practicable, the child should spend equal time with each parent.

2. The significant issues in this case are the capacity of each parent to provide appropriately for the child’s special needs and to facilitate the child’s relationship with the absent parent.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper[1], but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[2]

   [1] S 65D

   [2]Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[3]

   [3]Baghti & Baghti [2015] FamCAFC 71

3. Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:

   a)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

   b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)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

   b)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

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)Parents should agree about the future parenting of their children;

   e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting Order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting Order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

8. Section 4AB of the Act defines family violence as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Examples of such behaviour and how a child is exposed to such behaviour are set out therein.

9. Section 61DA provides that when making a parenting Order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an Order for equal shared parental responsibility would not be in the child’s best interests.

10. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

11. Section 65DAC makes clear that an Order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

12. Although I may not specifically discuss in these reasons each subparagraph of each section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[4]

    [4]Banks & Banks (2015) FLC 93-637

13. In Zahawi & Rayne[5] the Full Court reiterated:

    47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

    
    ...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

    [5] [2016] FamCAFC 90 and reference to U v U[2002] HCA 36 at [92]; (2002) 211 CLR 238; (2002) FLC 93-112

    48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms. 

Mother’s case

1. The mother contends that the move to Australia in 2010 was to be for “a few years” and that she had a similar agreement with the father of D and E. Despite this assertion, she concedes that in December 2012 D and the child were enrolled at Q School in Brisbane to commence in 2015 and 2020 respectively. Likewise, E was enrolled to attend R School in Brisbane for high school. The mother concedes that such enrolments are contrary to her evidence about the alleged temporary nature of the relocation to Australia. I note further the mother’s communications with the father after separation wherein she contemplated moving to Sydney rather than London and when D returned from Country H her comment, “Now that [D] is coming back for good, most likely stay in AU”. I am not persuaded that at the time of the move in 2010 it was intended to be temporary.

2. The mother also alleges that the father agreed to her returning to live in the United Kingdom with the child and expressed his intention to relocate as well but withdrew his consent. It is apparent that each parent has at various times expressed a preparedness to remain in Australia and/or to relocate to the United Kingdom. Ultimately, though they were unable to agree and the mother relocated without the child on what was described by her then legal representatives as a ‘trial’ basis. In particular, the mother stated through her lawyers, “it would be preferable to allow both parties an opportunity to trial the arrangement and observe how the child is adapting”.  I find that the mother was satisfied at the time of her departure that the child would be appropriately cared for by the father. In this regard I note that as early as 1 May 2014 the mother considered the father an appropriate full time carer when she wrote, “[C] will be OK if he has ONE parent with him constantly”.

3. At the time of her departure I accept that the mother anticipated that she would see the child over the Easter holidays but reject her evidence that there was a concluded agreement that he would travel to the United Kingdom for Easter. Contrary to the mother’s initial evidence that the course of communication in exhibit 5 corroborated a concluded agreement she ultimately conceded that exhibit 5 did not do so. Further, exhibit 6 provides clear evidence that at least by 8 February 2016 the mother could have been in no doubt that there was no agreement. Despite this, she continued to talk about the trip to the child and built up his expectations. The father’s numerous requests to the mother that she not do so until they had reached an agreement went unheeded. The child was very disappointed when he did not see his mother at Easter. I accept the father’s concerns about whether the mother would return the child were genuine. He sought the payment of a refundable bond by the mother. She refused to provide such a bond and I find that at that time the mother had funds from which a bond could have been paid. It is unclear why the mother could not have come to Australia to see the child instead of his travelling to London. The unfortunate result is that the child did not see his mother from 13 January to 2 August 2016.

4. The mother’s decision to relocate without the child was said (in the letter from her then lawyers to the father’s then lawyers) to have been made for the following reasons:

   … due to the difficult position she finds herself in with respect to her two eldest children who our client would like settled into school in the UK at the start of next year, as opposed to requiring another change in schools the following year. Our client also has the added consideration of the situation concerning the Father of our client’s two eldest children, namely that, as previously advised, the agreed arrangement was always for the children to return to commence high school education in the United Kingdom.

5. In her interview with Ms S, the family report writer, the mother explained her wish to relocate to the United Kingdom was motivated by the availability of family support there, which was not available in Australia. D experienced difficulty adapting to the Australian education system and wanted to return to the United Kingdom. Her decision to relocate without the child was motivated by D and E’s father commencing legal proceedings against her to cause their return to the United Kingdom as previously agreed (I note the mother conceded during the trial that no proceedings had been instituted). The mother also described D being “depressed” and experiencing some social difficulties at school. Lastly, she stated to Ms S that the parenting relationship with the father was becoming difficult and alleged the father was blocking her efforts to seek relevant support for the child.

6. Since relocating she contends that she and the father rarely communicate about the child other than to arrange times for her to speak to the child. The mother concedes that she has not emailed the father since her departure so it can readily be observed that the absence of communication is not just as a result of the father’s behaviour as the mother would contend. Exhibit 6 also demonstrates that the mother has asked few questions about the child’s progress. The father has provided some information about the child’s health and progress but certainly plenty of photos and information about day to day activities. It appears from exhibit 6 that there has been communication between the child and the mother but on a somewhat ad hoc basis due to the parents’ commitments, the child’s commitments and problems arising because of poor internet reception and time differences.

7. While critical of the father’s reluctance to accept the child’s various diagnoses and treatment she nevertheless holds no concerns for the father’s day to day parenting of the child other than about his focus being more on work than parenting. Because of this she contends that he has missed things like the child needing glasses, which she arranged recently.  

8. She argues that she is best able and motivated to seek the professional support and assistance the child’s needs. She argues that since her departure the child has “regressed” due to the failure of the father to maintain the child’s attendance with the various health professionals. The mother conceded in her oral evidence that the child had made progress this year although she maintained that he had regressed in his ‘phonics’ and gave as an example the fact that he could no longer sound out the letter ‘F’ when she asked him recently.

9. The mother gave evidence that she suffers from migraines and is dyslexic. The mother was able to read from documents in the witness box and when this was noted she stated that she was very familiar with the document she was reading from and used her finger to follow words.

10. She describes the child as having “matured a lot lately” such that she considers he would be able to travel as an unaccompanied minor on international flights although she thinks she would accompany him for the first couple. I note that the mother was content for the child to travel as an unaccompanied minor at Easter time this year which appears somewhat at odds with her case that he requires so much professional assistance to address his various issues.

11. The mother is currently living off the remainder of an inheritance she received from her mother. She has £5000 remaining from her inheritance of £250,000 received about two years ago. $130,000 was paid to her Australian solicitors and she has used the balance for school fees, medical expenses, day to day living expenses and her travel to Australia in August and September. The mother anticipates the £5000 will last another four to six months. She intends to apply for social security and has the forms to apply for a single parenting benefit which she understands will be about £500 to £600 per week including housing benefit and council tax. In addition she expects to receive a carer’s allowance for the child and D of about £70 per fortnight. Her rent is £620 per week and her daily living expenses (excluding utilities) are about £250 per week. When the shortfall was brought to her attention the mother said she would obtain employment. She gave evidence that she had applied unsuccessfully for two jobs but has been told by people she previously worked for that she could return to that work. When asked why she had not sought that employment at the time she applied for the other positions she stated that the hours were long and she proposed to work only during school terms and preferably only during school hours, particularly if the child were living with her.  Exhibit 3 and 10 provides some evidence of the possibility of employment for the mother.

12. The mother proposes that the child attend a local school in Suburb F and exhibit 7 sets out the impressive array of support offered by that school for children with learning challenges. The mother has obtained a referral for the child to Child and Adult Mental Health Services in London where he would be assessed and provided with whatever assistance he requires. She can no longer afford to engage private health professionals.

13. The mother’s case is encapsulated to some extent by her statement during her oral evidence - “I am his mother and up until January I did absolutely everything for [the child] …” and “I believe I understand [the child] more and what his needs are”.

Father’s case

1. The father opposes the child moving to the United Kingdom. He says that the mother “has no need” to relocate, arguing to Ms S that her wish to do so was “symptomatic of an ongoing pattern of behaviour whereby she is always seeking something new to do before she is “disillusioned” by that and seeks something else”. He further stated that if the mother “put her mind to it” she was very capable of making friends and developing a good support network for herself. The fact is though, the mother has returned to London and proposes to remain there.

2. The father rejects the mother’s contention that she has family support in the United Kingdom. She has one brother and elderly relatives. By contrast the father argues the child has extended paternal family in Brisbane with whom he spends regular time, generally each alternate weekend. In particular he has two grandparents, three aunts and uncles and nine cousins.

3. The father stated that he would not move to the United Kingdom even if the child were to relocate there. He argued that if he did so it would be at great economic cost and he would be unable to offer the child the same lifestyle he can in Australia. The father worked as a health professional in London prior to 2010 for about five years. He received an income of about £33,000 which he argues is all he would be able to earn if he returned as he would be limited to National Health Scheme patients. He currently earns about $120,000 but has significant debt. He owes about $100,000 in credit cards and personal loans in Australia and about £100,000 in loans in the UK. He is still paying off legal fees and owes about $10,000. He has no further ability to obtain credit in Australia or the United Kingdom but would seek assistance from his parents to assist in airfares if needed.

4. He also argues that his ability to live in the United Kingdom, despite having an European passport, is now uncertain given the impending departure of the United Kingdom from the European Union.

5. He says he will not move for the reasons stated and I have no reason to doubt his sincerity. 

6. The father considers that the child displays “mild” traits of ASD and ADHD which he addresses appropriately. He disputes the mother’s account that they rarely communicate about the child, contending that he regularly emails or texts the mother about the child and his progress. Exhibit 6 provides some corroboration although there is little in those communications about the child’s progress. He argues that the mother refuses to communicate with him “on any level”. Prior to the mother’s departure he was concerned about the extent of intervention obtained by the mother for the child and the amount of school he missed as a result.

7. C no longer attends upon any health professional on a regular basis but receives support from school. The father is largely content with the child’s progress and the assistance he receives from his school.

8. The father provides very detailed evidence of the child’s routine and the many activities in which he is regularly involved including soccer, swimming and ‘nippers’ at the T Town Surf Life Saving Club. The child leads a full and active life and is involved in a number of team sports. 

9. The father is concerned about the mother’s history of instability and points to D having attended at least seven schools. He argues that the mother’s financial position is such that she cannot offer financial security and stability and is likely to have to move again when her lease expires in February 2017 involving further changes in school. The father also notes that D lived with his father in Country H for eight months at the beginning of 2014 while E and the child remained in Australia.

10. He contends that given the mother’s history, further change in her and her children’s living circumstances is likely. He argues that the child requires stability, which he can offer.  He deposes to the child taking a number of months to adjust to living with him on a full time basis.

Ms S, family report writer

1. Ms S is a family consultant who prepared two family reports in this matter. The first one arose out of interviews conducted on 7 May 2015. Ms S did not identify any risk factors and noted that the child seemed comfortable with each parent and was equally challenging at times for each parent. Importantly, she noted that each parent was able to manage the child similarly and with success.  Ms S noted that the parents were largely in agreement about parenting arrangements apart from whether the child should relocate to the United Kingdom.

2. In her interview with D she noted his description of his relationship with the child as a close one involving the use a special nick name for him of “googa” and often sharing his bed. D referred to a variety of activities which he and the child engaged in together including soccer and board games. D wanted to return to the United Kingdom. He perceived the education system to be better there and he was critical of some social aspects of life in Australia. He did not want to leave the child behind as he felt the child was somewhat dependent upon him. He was not happy that living in Australia limited the time he could spend with his own father. D was critical of the father’s treatment of him perceiving the father to have favoured the child.

3. E also expressed a close relationship with the child and sadness if they were separated. She described the concept of returning to the United Kingdom as “really hard” and did not know how she felt about it. E spoke positively about school and life generally in Australia.  Like D, she spoke positively about the increase in time she could spend with her father if she returned to the United Kingdom. She stated that she and D only saw their father once a year but if they relocated it would be eight times a year.

4. Ms S opined that children with special needs, particularly if they are akin to those on the Autism spectrum, require consistency in parenting. She noted that neither parent raised any concern about the child’s capacity to transition between them.

5. Ms S completed her second family report after interviews on 11 August 2016. She noted that the child had ceased attending upon his psychologist, occupational therapist, speech therapist and paediatrician. The parents remained at odds about the extent of the child’s special needs and how best to address them. The mother contended that the child’s progress has regressed.

6. C was observed to be comfortable with each parent.

7. Ms S opined that at his current age the child still requires regular and frequent time with each of his parents to maintain a meaningful relationship with them and that it will likely have an adverse impact upon the quality of the relationship with the absent parent if the parents continue to live in different countries.

8. No risk factors were identified and Ms S assessed each parent to be capable as a primary carer, however, she noted the discrepancy between them about the extent of the child’s ASD and ADHD. Ms S noted that regardless of the severity of the child’s symptoms it appears that all professionals previously involved assessed him to be in need of their services to some degree. The mother was adhering to the advice whereas the father had suspended their services and adopted a ‘wait and see’ approach.

9. Ms S recommended in her report that the child relocate to the United Kingdom on the basis that the mother is better able to meet the child’s needs. Such a move would also enable the child to be reunited with his half siblings. Ms S also expressed concern about the father not initiating communication between the child and the mother.

10. Prior to giving oral evidence Ms S was provided with material that she did not previously have, namely, the parties’ affidavits of evidence in chief (which annexed a number of relevant reports).

11. On the basis of the further information Ms S stated that she no longer had the same “definiteness” about relocation that she previously had and that it may be in the child’s best interests to stay in Australia so as “not to disrupt him”, although she remained concerned about the sibling relationships particularly between D and the child.

Other evidence

1. In her report dated 8 December 2015 Dr J made the following comments:

   As noted in my report, the manner in which [Ms Watts] and you have endorsed the items on the behavioural questionnaires has highlighted the significant discrepancies in how [the child] is viewed by both parents.  In contrast to [Ms Watts’] extremely high rating (e.g. clinical range) on most of the questionnaires, your ratings fell consistently within the average range (e.g. normal range).

   …

   We have acknowledged that looking after one child as opposed to three in [Ms Watts’] situation would reduced factors of competing sibling attention and that the child did respond better to the one-on-one interaction.

   …

   We have acknowledged that, at this point in time, and without the use of medication, [the child] has made very significant gains at school from the behavioural perspective.  This was highlighted in the improved behavioural ratings which his teaching staff completed between February and July 2015.  It was thus the impression that the positive behaviour support strategies which have been implemented at school, have had a very positive impact on [the child].  It was also the impression that [the child’s] growing experience with structured teaching environment and his maturing may have also played a role in his settling down, somewhat.  Highlighted was thus the importance of all those working with [the child] as having consistent approach to both understanding his condition and ways in which this can be optimally managed/supported.

   …

   Should [the child] continue to show sound gains without the use of medication, then the pharmacological management may not be warranted.  However, should there be ongoing concerns, the use of medication as an adjunct therapy may need to be reviewed.  It is the general principal that medication should not be seen as a behaviour management strategy but an aid to learning and optimal academic attainment.

   …

   [The child] was also noted to be a very physically active boy who enjoys participation in sports and does not shy away from group activities.  Nonetheless, he can be vulnerable in team sports as a result of his social and communication difficulties.  His motivation to participate would offer a great opportunity to also utilise those times as a teaching forum for him.

   [errors in original]

2. Ms U has been the child’s teacher for grade one this year. She completed his semester one report card and assessed his achievement as ‘sound’ in science, health and physical education, music, the arts, technology and Italian. ‘Sound’ is explained as indicating:

   The student demonstrates a sound level of knowledge, skills and understanding and is able to apply them, in some contexts.

   She assessed his achievement as ‘developing’ in mathematics and history. ‘Developing’ is explained as indicating:

   The student is developing knowledge, skills and understanding and is able to apply them, with support, in some contexts.

   The child is assessed as requiring “significant support to develop knowledge, skills and understanding in English”. His effort in all subjects was assessed impressively as ‘sound’, ‘high’ or ‘very high’. 

1. In the overall comments Ms U assessed the child as:

   … a fun loving, enthusiastic participant in all class activities. He is becoming more confident in his own abilities although he still needs reassurance to ‘have a go’ at set tasks. [The child] is learning to take more care with written work and is trying to form letters correctly. He prepares to listen attentively but he can speak impulsively and be easily distracted. Although [the child] has experienced difficulties with his learning this semester he displays a positive attitude towards school and learning. He is friendly and cooperative with his peers….

2. In her oral evidence Ms U opined that the child has made a lot of progress this year. She described how compared with last year, he now sits in class; stays on task for longer periods and there is no “rolling around on the carpet”. She noted significant improvement in his language expression. She is not of the view that any speech difficulties are of themselves holding him back. She confirmed that he continues to receive considerable support at school. There is an intervention teacher, Ms V whom he sees three days a week for two sessions of thirty minutes and one session of forty-five minutes; an inclusion teacher, Mr W who sees him at various times throughout the week and can have one-on-one sessions for up to an hour and other sessions in a small group. Importantly she stated that the child’s progress would continue to be monitored in order to assess what other assistance he may require.

3. Mr W, the inclusion teacher, opined in a report dated 20 June 2016 inter alia:

   … there has been a huge improvement in terms of his social engagement, communication and work habits. … he is now much more attentive to tasks …. He behaves appropriately both in the classroom and playground.

   Currently [the child] attends a social skills program designed specifically for ASD children one afternoon a week. As it is in his best interests to be in his regular classroom as much as possible so he can access all key learning areas, as inclusion teacher I visit his classroom in middle sessions to offer support to him, and others during numeracy time. [The child] also attends small group Literacy support sessions with me once a week.

   [The child’s] teacher is very happy with the way that he has settled into the class this year and he appears to be very happy, with a positive attitude to school, classwork and socially. Whenever I pop in throughout the day he is always happily working at his table to attentive during class ‘carpet time’.

1. The child was assessed by Ms L, speech pathologist, in May 2016 at the instigation of the father and by Ms N, speech pathologist, in August 2016 at the instigation of the mother. Ms L assessed the child to have age appropriate ‘receptive language skills’, ‘expressive language’, ‘vocabulary knowledge’ and ‘skills in understanding and using sentence structures and grammar’. To facilitate further language development she recommended:

   ·Develop understanding of instructions that contain concepts –

   oSequence – first, second, third, last

   oInclusion/exclusion – neither/nor

   oLocation – separated by

   oTemporal – at the same time, while, before, after

   oCondition – unless

   ·Continued development of Tier 2 vocabulary and understanding of categories, descriptions and relationships/associations

   ·Development understanding of conjunctions and ability to produce compound and complex sentences.

2. Ms N opined that the child continued to experience a significant delay in his literacy and phonological awareness and presents with a mild speech sound production delay. She stressed the importance of phonological awareness skills in promoting early reading success. She noted a mild stutter in his speech.

3. Dr I gave oral evidence confirming his diagnoses of ASD and ADHD for the child and stated that on the last occasion that he saw him on 20 August 2015 he felt that the child had significant symptoms of ADHD and that he would probably benefit from medication. As he had not seen the child since then he declined to offer any opinion as to whether medication was currently warranted and noted the documents with which he had recently been provided (reports from health professionals and school reports) seemed to indicate some improvement and that the child is getting a high level of support. He agreed with the general propositions put to him by the father as outlined in the National Health and Medical Research Council’s Clinical Practice Points on the Diagnosis, Assessment and Management of ADHD in children (exhibit 4).  He confirmed the possible side effects (from taking medication to treat ADHD) for children as put to him by the husband but stressed the short term nature of those side effects generally. He agreed with the father that children suffering from ASD do not generally cope well with change.

Discussion

1. A parenting case involving relocation is just another parenting case.[6] There are no special tests that apply. For instance the mother does not have to establish a compelling reason for wishing to relocate the child to the United Kingdom.[7] Her desire to relocate the child to the United Kingdom is perfectly understandable in the circumstances. The father’s opposition to that proposal is also perfectly understandable. It is apparent that both parties have struggled with the decision about whether or not to relocate and each have at various times expressed a willingness to accede to the other’s preference in certain circumstances.

   [6]Zahawi & Rayne (supra)

   [7]AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852

2. Ultimately, my task is to make a parenting order that I consider to be proper having regard to the objects and principles of the Act, the rights of adults to freedom of movement and what order will be in the child’s best interests in the particular circumstances of the case. The best interests of the child remain the paramount though not the sole consideration.[8] Where the legitimate interests of an adult conflict with his best interests, the former must give way.[9]

   [8]AMS v AIF (supra)

   [9]AMS v AIF (supra)

3. I accept that the child has a close and loving relationship with each parent as is apparent from the observations of Ms S and from the decisions made by each parent regarding the child to date. I also accept that he has a close and loving relationship with D and E and I regard the sibling relationship a particularly important one. It is not apparent what, if any, impact his separation from his siblings has made to that relationship. I take some comfort from the fact the child’s closeness to D was maintained when assessed by Ms S in 2015 despite D having lived for eight months of 2014 with his father in Country H.

4. The child spends time with the father’s family in Australia and I accept that the child is likely to have formed an attachment to them. The child has had a limited opportunity to relate to his maternal family.

5. While each parent raised some historical behaviour which may fall into the definition of family violence neither party contended that such behaviour had continued after separation and importantly neither party contended that such behaviour should impact on the time the child spends with each parent.

6. Each parent generally accepts that the child’s day to day needs can be adequately provided for by the other as is apparent by their agreement to an equal time arrangement in 2015 and for that to continue (with some provisos) if it were reasonably practicable. In my view the mother would not have left the child with the father if she did not consider him to be able to provide appropriately for the child.

7. The mother contends that she is more able to attend to the child’s special needs than the father as demonstrated by her accessing appropriate assistance in Australia. She argues that the father minimises the extent of the child’s problems and accordingly is unable or unwilling to obtain the assistance the child needs.

8. The father contends that as a health professional he is more aware than might otherwise be the case of what assistance may be required for the child. He argues that the child receives sufficient assistance and support from his school and is progressing well. He objects to the mother’s over involvement of specialist services where it impacts on the child’s attendance at school and argues that for so long as there is improvement, any introduction of a pharmaceutical intervention should be postponed. He relies, in particular, on the opinion of Dr J in this regard.

9. In relation to the child’s special needs I find that each parent has acted with the best interests of the child at heart. They had and may still have different views about how best to address the child’s diagnosed conditions. I consider each of their views to be reasonable in the circumstances. In particular, the father’s reluctance to treat the child with medication before trying other treatments or approaches seems to be vindicated given the progress the child has made this year.

10. The evidence of the child’s positive progress this year is overwhelming, in my view. I do not accept that he has regressed as a result of the father discontinuing the weekly interventions previously organised by the mother.

11. He still has challenges ahead and I am satisfied that each parent would be able to address those adequately.

12. The child has had a lot to cope with in his short life, not least of which was his mother’s and siblings’ departure in January 2016. I have no doubt that he would have missed them and still misses them. I accept the father’s evidence that it took some months for the child to adjust to living full time with his father.

13. He is in his second year of schooling at P Primary and is progressing well given his challenges. He is a happy little boy who is settled in his school and community. He leads an active life with his father and has regular contact with the paternal extended family.

14. The mother’s proposal will see the child again disrupted and this time removed from his father. Unless the father also relocates, which he says he will not, the child will have to endure this further significant deprivation and also the disruption of moving to a new country, school and home. He will of course be re-united with D and E which will be a positive, as will being re-united with his mother.

15. The child is not of an age or maturity where he can be expected to have formed views that can be given any weight.

16. The cost of travel to ensure the child spends time with the ‘absent’ parent will be in the vicinity of $2000 per trip for the child and something similar for the accompanying adult. Neither parent is in a strong financial position but I am of the view that each parent will take all steps necessary to ensure that the child does spend time with both his parents. I do not regard the failure to reach agreement at Easter time as indicative of any general opposition. Obviously the more frequent the travel the better and any Order I make can be supplemented with further trips if agreed.

17. The father is currently solely supporting the child financially. The mother stated that the child support she receives from D and E’s father is sufficient to meet their needs.

18. I do consider that there needs to be a definite time and day set aside each week for communication to occur between the child and the absent parent and each parent will need to take all steps necessary to ensure communication with the absent parent occurs.

19. I note that both parents seek an order for equal shared parental responsibility which in my view is an indication of a preparedness and intention to work together in decision making about the child’s major long term issues.

20. As there is no prospect of the parents living in the same country it is not reasonably practicable for there to be equal time or substantial and significant time. If they were living in the same country Ms S was of the view that equal time would not be in the child’s best interests because of the parent’s differing views about the child’s treatment but I am not convinced that those differences are long term or that equal time would otherwise be contraindicated. The parents previously implemented an equal time arrangement and neither complains about that arrangement.

21. Ms S’s initial recommendation that the child relocate to the United Kingdom was based to a significant degree on her understanding of the then state of the medical and professional evidence. When provided with updated evidence she readily acknowledged the child’s progress despite the father not maintaining the previous professional supports. She felt it may be best for the child to remain in Australia so as not to disrupt him although she maintained a concern about the impact of that on his sibling relationships.

22. Ultimately, I come to the view that it is in the child’s best interests to remain in Australia with his father. He is settled in Australia and progressing well. The changes urged upon me by the mother would in my view be too disruptive for the child. He can maintain a meaningful although not an optimal relationship with his mother and siblings while continuing to live in Australia as long as he is able to communicate regularly and spend time with his mother and siblings at least twice each year.  

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 September 2016

Associate: 

Date:  16 September 2016