WESSELL & WESSELL

[2012] FamCA 772

FAMILY COURT OF AUSTRALIA

WESSELL & WESSELL [2012] FamCA 772

FAMILY LAW – CHILDREN – where the mother seeks to take the child overseas to visit the maternal family – where the mother has sought to relocate permanently with the child in past proceedings - where the father asserts the mother is a flight risk - where the child suffers from Asperger’s syndrome – whether there are risks associated with the flight and the trip – where it was held there were risks but those risks could be ameliorated – overseas travel permitted

Family Law Act 1975 (Cth)

Line & Line (1997) FLC 92-729

APPLICANT: Ms Wessell

RESPONDENT: Mr Wessell

INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate

FILE NUMBER: SYC 5280 of 2010

DATE DELIVERED: 7 September 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 - 22 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: Sydney Legal Practice

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Uther Webster & Evans

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

Orders

1. The orders made on 11 December 2007 with respect to B born on … February 2003 (“the child”) are discharged to the extent necessary for the following orders to take effect.

2. The parents shall each do all things necessary forthwith to apply for an Australian passport for the child.

3. The child is permitted to travel with the mother only, to the United States of America (“the USA”) from 21 December 2012 to 5 January 2013 for a period of 16 days including the days of departure from and return to Australia.

4. Thereafter, the child is permitted to travel to the USA annually during his school holidays, for a second trip of not more than 16 days including the days of departure from and return to Australia, commencing 28 December 2013 to 12 January 2014 and subsequently commencing 2014 for not more than 21 days including the days of departure from and return to Australia.

5. During travel permitted by order 4, but not by order 3, the child may be accompanied also by Mr A, provided that the mother and Mr A have together attended a parenting and/or counselling program designed to educate carers of children with special needs.

6. The child’s travel on any occasion pursuant to these orders shall be conditional on the following:

   6.1.The mother providing to the father, not less than 21 days before departure from Australia, a complete itinerary, including all flight departure and arrival dates and times;

   6.2.The mother providing to the father written confirmation, from any airline on which the child will travel for more than one hour, that she has advised the airline of the child’s special needs, including as to his likely food requirements during the flight, and the possibility that he may need a period or periods of isolation from other passengers;

   6.3.The mother making an appointment to attend upon Dr O, after consultation with the father as to dates and times when he also could attend and both parents attend such an appointment, in order to obtain advice about medication(s) and any other matters which in Dr O’s professional opinion may benefit and assist the child while he is travelling and both parties do all things they can to implement Dr O’s advice;

   6.4.The mother providing a cash bond of $8,000 to be available for the father’s use for the child’s recovery and return to Australia should that become necessary, such bond to be held by the father’s lawyers not less than 14 days prior to the date of the child’s departure from Australia. The father is at liberty upon 48 hours notice to make an application in respect of the release of the bond to him.

7. The mother and the father shall each take the child on at least one visit to the Sydney International Airport terminal in the month before the date of his first departure from Australia.

8. Neither parent shall discuss travel plans with the child or within his hearing, except within the calendar month before the date of departure in 2012.

9. The father do all things that he can to positively reinforce to the child that he will have a good time with his mother in the USA and the advantages that the child might get from the experience of travel and meeting his mother’s family in the USA.

10. The father should prepare with the child visual cues (for example photos and other items) that might remind the child of his father, for the child to carry with him on the trip and the mother shall ensure that those visual cues remain with the child during the trip. 

11. Either party can apply for a variation of orders in relation to the child’s overseas travel once he has reached the age of 14.

12. Upon the issuing of a passport for the child, the mother shall immediately lodge the passport with the court’s Sydney Registry, where it shall be retained until it is released to the mother three days prior to the date of any departing international flight on which the child is to travel.

13. The mother shall advise the father, by telephone text message, each time she and the child arrive at Los Angeles international airport and when they have arrived at Idaho (on the journeys both to and from the USA), and also shall report briefly to the father about the child’s welfare, daily if possible, but not less than every third day while the child is in the USA.

14. Upon return to Australia at the conclusion of each trip, the mother shall immediately deliver the child to the father at Sydney International Airport (“the airport”) and the child then shall spend time with the father for not less than seven days, or longer if prior to the child’s departure the parents agree to a longer period (provided that it is noted that on the first two occasions in 2012/2013 and 2013/2014 the child will be returned to the father for the father to have one half of Christmas school holidays with him).

15. In the event that the father is unable to ensure that he will be at the airport to meet the child’s return flight, he shall advise the mother to that effect, if necessary by leaving a message which she will receive immediately on arrival at the airport, and in that event order 14 shall not apply, but the parents shall make other arrangements for the child immediately to spend not less than seven days with the father.

16. Within 48 hours of return to Australia on each trip the mother shall lodge the child’s passport with the court’s Sydney registry and advise the father in writing that she has done so.

17. As soon as is practicable after the mother has purchased airline tickets for the travel to the USA commencing 21 December 2012, the mother shall forward to Dr W, a general practitioner in Idaho, a copy of all reports from Dr O together with the behaviour intervention report dated June 2011 by Ms M and the confidential school counsellor’s report by Ms K dated 30 May 2011 and on each subsequent trip the mother provide Dr W any updating reports the mother has relevant to the child’s medical condition.

18. The application for the parents to pay to Legal Aid NSW for the costs of separate representation for the child is dismissed.

19. The order appointing the Independent Child's Lawyer is discharged.

20. In the event that either party fails to sign any necessary document to give effect to any order, a Registrar or Deputy Registrar of the Family Court is authorised to execute any necessary document on behalf of the and in the name of either of the parents and do all acts and things necessary to give validity and operation to any such document.

21. Pursuant to s 65DA(2) and s 62B 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.

IT IS NOTED THAT:

1. For the purposes of these orders, “writing” shall include telephone text messages and emails. 

2. The parties agree that the child will continue at his current school until at least June 2013.

3. The orders of 11 December 2007 have placed the child on the airport watch list on the basis that both parents are restrained by the orders of 11 December 2007 from removing the child from the Commonwealth of Australia without the written agreement of the other parent. These orders set out the circumstances in which the order of 11 December 2007 has been modified to allow the child to leave Australia for the periods specified in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5280 of 2010

Ms Wessell

Applicant

And

Mr Wessell  

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties in this matter have been locked in litigation for some time. Orders were made in 2007 providing that the parties’ child B (“the child”) be placed on the Airport Watch List. The mother now seeks to vary those orders. The mother, who is American, seeks to take the child and her new partner to visit her family who reside in Idaho.

APPLICATIONS

1. The mother is seeking permission to travel with the child outside Australia. The formal order the mother is seeking is as follows:

   1.The mother is permitted to take the child for overseas travel:

   a.departing Sydney on 21 December 2012 and returning on 6 January 2013;

   b.departing Sydney on 28 December 2013 and returning on 28 January 2014;

   c.for a single trip of no more than thirty (30) days per year thereafter.

2. The Independent Children's Lawyer reformulated the mother’s order particularly in relation to Christmas 2012 in the following terms:

   “[The child] is permitted to travel with the mother only, to the United States of America (“the USA”) from 21 December 2012 to 6 January 2013 for a period of 16 days including the days of departure from and return to Australia.”

3. If the 21 December and 16 January are counted as whole days, then the period between 21 December 2012 and 6 January 2013 is in fact 17 days not 16 days. This discrepancy was not a matter that was highlighted at the hearing.

4. It is the mother’s intention to have the option to travel at times other than Christmas from 2014 onwards. The mother is prepared to offer a bond of $8,000 for the child’s return.

5. The father opposes any order allowing the mother to travel internationally with the child without the father’s written consent.

DOCUMENTS RELIED UPON

1. The applicant mother relies on the following:

   7.1.Further Amended Initiating Application filed 2 August 2012

   7.2.Mother’s affidavit filed 2 August 2012

   7.3.Mother’s affidavit filed 16 March 2012

   7.4.Mother’s affidavit filed 18 November 2011

   7.5.Affidavit of Ms R filed 18 November 2011

   7.6.Affidavit of Mr A filed 18 November 2011

   7.7.Affidavit of Ms G filed 9 July 2012

   7.8.Affidavit of Dr O filed 18 August 2012

2. The respondent father relies on the following:

   8.1.Response to Initiating Application filed 13 October 2010 and Amended Proposed Minute of Order

   8.2.Father’s affidavit filed 14 October 2011

   8.3.Father’s affidavit filed 12 March 2012

   8.4.Father’s affidavit filed 15 August 2012

3. The Independent Child’s Lawyer relies on the following:

   9.1.Affidavit of Ms S sworn 29 November 2010

   9.2.Family Report by Ms S dated 22 December 2011

   9.3.Documents in the ICL tender bundle

SHORT HISTORY

1. The mother was born in 1971 in the USA. She is currently aged 41.

2. The father was born in 1972. He is currently aged 39.

3. The parties married in 1999.

4. The parties’ child B was born in February 2003 in the USA. He is currently aged nine years.

5. In 2003, the parties immigrated to Australia.

6. The parties separated around 2004 or 2005.

CREDIT

Mother

1. The mother on occasions was less than convincing and overall was not an impressive witness. One example of a conflict in the mother’s evidence related to the circumstances in which the father found out that the mother had moved from Town F to Town B. The mother asserted in her oral evidence that she had given the father 60 days notice in a telephone conversation with the father of her intention to move. That was inconsistent with previous statements that she had given 45 days notice, which is contained in paragraph 4 of her affidavit of 16 March 2012. The father’s evidence is that the first he knew about this significant change in the child’s circumstances was when he found out that the child had commenced to go to B School.

2. The mother also gave evidence that she could not remember sending a text message which is part of Exhibit 1. That was inconsistent with previous indications that she had given to me at an earlier point in the trial. The text message is in the following terms:

   Amazing how ur stupid games backfire on you. Hope ur burning now. [Town B] is the closest we will ever be to u. Enjoy the commute! FOREVER!

3. The father’s evidence is that that text message was sent at 11.00 am on 27 November 2010. I have no difficulty in accepting his evidence that the mother sent that text message and I have no difficulty in accepting the father’s evidence in preference to the mother’s evidence in relation to the move that the mother made at that time. The mother, I find, made a unilateral move, which made it significantly more difficult for the child to spend time with his father, notwithstanding there was at that time in place an equal shared parental responsibility order relating to the child.

Father

1. I found the father to be a credible witness. He answered questions in a forthright manner. The only area where I had some doubts about the father’s evidence related to his level of income. There was an inconsistency between his evidence in his last tax return, where his annual income was $30,000, and an estimate that he makes in his affidavit that he would have lost $10,000 in a two month period ($5000 per month) if he needed to travel overseas to recover the child. The father is self employed. On the basis of this evidence from the father, his earnings are double what he had estimated in his oral evidence (12 x $5000 = $60,000).

2. Where there is a difference of significance between the evidence of the mother and the evidence of the father, I prefer the evidence of the father.

Mother’s Witnesses

1. I had difficulty accepting Mr A’s evidence about his conversation with Ms S relating to his attitude to living in the USA.

2. Ms S noted that Mr A told her he would like to live in USA “in about ten years time”. Mr A denied making this comment. He said when asked by Ms S if he would move in the next ten years, he said no.

3. I am not prepared to accept Mr A’s evidence given that the evidence from the family consultant is that the words in quotation marks were words that were actually written down in her notes at the time that she was interviewing Mr A.

Expert Witnesses

1. I was particularly impressed by the evidence given by Dr O who is the child’s treating paediatrician. I found that the doctor made appropriate concessions and provided sensible suggestions.

DETAILED CHRONOLOGY

1. The mother was born in 1971 in the USA. She is currently aged 41.

2. The father was born in 1972 in Australia. He is currently aged 39.

3. The parties married in USA in 1999.

4. The parties’ child B was born in the USA in February 2003. He is currently aged nine years.

5. In August 2003, the parties immigrated to Australia.

6. In 2004, an Apprehended Violence Order was made against the father in favour of the mother and the child.

7. The parties separated around 2004 or 2005.

8. The parties divorced on 5 October 2006.

9. On 11 December 2007, Flohm J ordered, inter alia, equal shared parental responsibility and that the child live with his mother eight nights each fortnight. The orders also restrained both parents from removing the child from Australia. the child’s name was placed on the airport watch list.

10. In September 2009, the mother commenced a relationship with Mr A.

11. In September 2010, the mother relocated to Town B.

12. In December 2010, the mother began cohabitating with Mr A.

13. On 3 May 2011, Rose J dismissed the mother’s interim application to take the child on a holiday to the USA.

14. In June 2011, the child was diagnosed with Asperger’s Syndrome and possible inattentive type Attention Deficit Hyperactivity Disorder.

15. On 16 June 2011, the child was placed on a 20 day suspension from school.

16. In January or February 2012, the child began attending D Public School. He is in a special needs class at that school.

THE EFFECT OF THE MOTHER’S PROPOSAL

1. The mother proposes that the child travel with herself (without there being any restriction on Mr A travelling with her) to the USA once a year. She proposes 17 days in the first year; 32 days in the second year and 30 days in every subsequent year. 

2. It was agreed during the hearing that the overall travel time would be about 20 hours. The flight from Sydney to Los Angeles non stop would be a 14 hour flight. There would thereafter either be a direct flight from Los Angeles to Idaho or two flights (with a stopover).

IS THE MOTHER A FLIGHT RISK?

1. In her Reasons for Judgment dated 11 December 2007, Flohm J said at paragraph 129:

   I intend to make an order which restrains the mother from moving [the child]’s permanent residence to the United States and from taking [the child] to the United States on holiday in circumstances where I am satisfied that the mother is likely not to return with him and indeed is likely to invoke the United States legal system to support her position, a system which the mother clearly views as a more just system than the Australian system.

2. In the Initiating Application filed by the mother on 20 August 2010, the mother sought a final order that would allow her to take the child to commence residing in Idaho, United States of America on a permanent basis commencing 22 June 2013.

3. The mother in her supporting affidavit filed 20 August 2010 said the following, inter alia:

   21. It is my firm belief that it would be in the best interest of [the child] to return to the United States of America to live on a permenant [sic] basis on or after 22 June 2013. At this point, [the child] would have spent 10 years of his adolescence in Australia and will allow him to spend the remaining 8 years of his adolescence in the United States of America.

   22. [The child] has built a strong bond with his father and his paternal family. He has spent significant time with his paternal family and is accustomed to their traditions and way of life. The applicant mother has insured [sic] the original court orders have been followed to encourage [the child]’s bond with his father and his paternal family is strong enough to endure the test of distance.

   23To assist the respondent father’s ability to maintain a relationship with his son, the applicant mother will continue to maintain a permanent VOIP (Skype) phone number of […]93. This phone number can be called for the cost of local land charges in Sydney Australia. Alternatively, the phone number of […]45 can be called at international rates. These are permanent phone numbers and have been established for a number of years.

4. It is clear from the evidence of the father during the hearing that the parties have attempted to engage the child in communication by Skype. The child does not like the camera and has not easily participated in that form of communication.

5. The mother offers a bond of $8000 for the child’s return. The father says this is inadequate and would not cover his expenses should the mother choose to remain in the USA.

1. In Line & Line (1997) FLC 92-729, the Full Court discussed the purpose of bonds. Their Honours said:

   The first of those matters to which the trial Judge should have regard is the purpose of such security, in respect of which we adopt, with respect, the two-fold purpose …set out … above namely:

   (a)to provide a sum which will realistically entice the person removing the children to return;  and

   (b)to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

2. The father during the case accepted that his original calculation of $90,000 as being an appropriate sum to allow him to take action overseas was very inflated.

3. Counsel for the father during final submissions attempted to do a recalculation indicating that on her instructions, the correct figure was now $17,000. I was unable to ascertain by way of any of the evidence as to exactly how that figure had been determined.

4. I work on the basic assumption that in the event that the mother chose to jeopardise the child’s wellbeing by separating him from his father in a way that is inconsistent with the orders that I am making, that the Australian Central Authority would request that the relevant Central Authority in Idaho take expeditious action to enliven the Hague Convention. In my view, in those circumstances it will probably not be necessary for the father to incur any substantial legal fees on his own behalf.

5. As already mentioned, in 2010, the mother filed her initiating application seeking permission to relocate with the child in June 2013. During cross examination, the mother conceded that her current circumstances were not that different to the circumstances when she filed her application in August 2010. However, she says she has no intention of relocating back to the USA.

6. The mother explained that she is in a stable relationship with Mr A; they have been in a relationship for three years, and have been living together since December 2010.

7. The mother emphasised to Ms S the poor economic climate in the USA and the limited job prospects she would face if she returned. During cross examination, she commented that “the GFC [Global Financial Crisis] has hit hard back home. Most of my family is now unemployed and have been for more than a year. A couple of my family members have been unemployed for more than two years.”

8. The mother says she wishes to focus on her career and her education. She has enrolled in a Bachelor Degree through a Sydney University. The course commences in September 2012.

9. The mother has three other children from a previous relationship. Her daughter T has resided in Australia since 2003. T asserts she has a strong relationship with her mother, and the child. T is now engaged to an Australian citizen.

10. T is enrolled in the same university course through the Sydney University as her mother. T has already commenced studying. Her employer is paying for her education, and she will be required to remain with her employer for two years after the completion of her degree.

11. I am relatively confident that T has established strong ties in Australia and currently intends to remain here permanently.

12. The mother’s two other children reside in the USA, although the mother annexes emails from her son Y who is intending to undertake tertiary education in Australia. During cross examination, the mother conceded that Y was still looking for work in the USA and has not booked any flights to Australia.

13. As I previously mentioned when discussing Mr A’s credit, Mr A told the family consultant that he would like to live in the USA in about ten years time. Having heard Mr A give oral evidence, I do not believe that Mr A’s long term attitudes constitute a factor to which I need to give any weight when assessing whether or not the mother is a flight risk.

14. The mother told Ms S that the father’s opposition to the child travelling to the USA is a “continuation of his propensity to control her.”

15. The father is concerned that the mother will remain in the USA. Despite both countries being signatories to the Hague Convention, the father says he would not be able to travel into the country to exercise his rights.

16. I accept (as does the mother) that the father is a decent man and has genuine fears in relation to the mother being a flight risk.

17. The father has been refused a Visa Waiver to enter the USA. He says that the USA Embassy told him his “name is flagged on the system.” The father told Ms S that he had a criminal conviction in the USA for receiving stolen goods. During cross examination he clarified that his conviction was in Australia, not the USA.

18. Having raised this issue of visas with the father on 26 August 2011, he has not done what he could have done in order to satisfy himself that he could get a visa to go to the USA. Applying for the waiver of a visa is not the same thing as applying for a visa. He has not attempted to obtain an interview at the American Consulate in Sydney and I’m less than satisfied that he would be banned from entering the USA particularly if it was in connection with legal proceedings that had been commenced at the request of our Central Authority by the American Central Authority.

19. The mother would know that she would risk a number of things if she unilaterally retained the child in the USA. Above all, she knows having heard the expert evidence that she’d be risking the child’s psychological health and wellbeing. Secondly, however, she should know from these reasons that if she acted in that way the probabilities are that the operation of the Hague Convention would repatriate the child speedily back to Sydney and in those circumstances there would be a hearing in the Family Court as to what parenting arrangements would be appropriate for the child. It may well be that if the mother behaved in a way that disregarded the child’s wellbeing so dramatically, the amount of time that the child spent with her would be significantly reduced.

20. I do not currently assess the mother to be a significant flight risk although the history of the litigation would indicate that it is not out of the question she will at some point attempt to return to the USA with the child. In the event the mother chose not to return the child to Australia after the very limited periods that she is seeking to be able to have the child in the USA, I am confident that the father could expeditiously avail himself of remedies under the Hague Convention.

21. Given the mother offered a bond of $8000, I will make an order that she provide security of that amount. There was an issue during the case about how the mother would provide that money. She initially said in her oral evidence that she would provide “title” to her car and Mr A’s car, which she estimated to be worth over $10,000. She later referred to her cash savings and said that a portion of those savings would go towards the bond. During submissions, counsel for the mother indicated the mother would agree to an order for a cash bond. I find it is appropriate for that bond to be in cash.

RICE & ASPLUND

1. Counsel for the mother asserted that a significant change was the fact that the child, now at the age of nine and a half, is in a position to express his views and that he had expressed views that were positive to seeing his relatives in the USA. As will be discussed when I deal with the child’s views when considering the statutory considerations, I do not accept that there is strong evidence that the child has anything other than an indifferent view at the current time to attending overseas and therefore I do not find that to be a significant change in circumstance.

2. Counsel for the father submitted that there had been no significant or substantial change since Flohm J had made her orders in 2007 except for the child’s relatively recent diagnosis of Asperger’s Syndrome and provisional diagnosis of inattentive type Attention Deficit Hyperactivity Disorder (“ADHD”). The recent diagnosis, it was submitted, was in fact a change that mitigated against changing the 2007 orders in respect of overseas travel.

3. The orders prohibiting the mother from taking the child to the USA in 2007 were based very strongly on Flohm J’s assessment that the mother was, at that time, a flight risk. As seen from the discussion above, I have reached a different conclusion, having looked at what has happened between 2007 and now, and having assessed the current situation. I am satisfied, based on my findings in relation to the mother being a flight risk, that the threshold issue of a significant changed circumstance has been satisfied by the mother.

ADVANTAGES OF THE FLIGHT TO ANTHONY

1. Section 60B(2)(e) Family Law Act 1975 (Cth) (“FLA”) provides that one of the principles underlying the objects of Part VII FLA is that:

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

2. The mother says she wants the child to meet the maternal family who are almost all based in Idaho. She also says she wants the child to personally experience the USA.

3. The mother asserts that the child has never been afforded the opportunity to get to know his maternal family. Order 17 of Flohm J’s orders of 11 December 2007 provided that the father was to subsidise the maternal family’s travel expenses from America to Australia by paying $1500 towards a trip every alternate year. The mother asserts the father has failed to abide by this order, but concedes that her family have been unable to travel to Australia for “medical and financial reasons.” The father says that the mother never provided him with the prerequisite details four months in advance, pursuant to Order 17.

RISKS OF THE FLIGHT TO ANTHONY

Diagnosis and expert evidence

1. In June 2011, Dr O diagnosed the child with Asperger’s syndrome and possible Inattentive type ADHD. In his oral evidence, Dr O confirmed that the diagnosis of ADHD was not confirmed but only “possible” because he “hadn’t conducted another assessment specifically to look at…whether [the child] really does have ADHD or not.” Dr O was “basing that [provisional diagnosis] on the ongoing behaviour problems that [the child] was having at school.”

2. Dr O opined that the child “appears to have a significant impairment with the development of his social skills and communication skills, as well as difficulties with imagination, and stereotypical obsessive and repetitive behaviour.”

3. Dr O prescribed the child Ritalin. In December 2011, Dr O recommended the child begin the new school year without the medication. He has not taken Ritalin since December 2011.

4. In a report dated 9 March 2011, the school counsellor at Town B, Ms K, opined that “[The child]’s skills in understanding verbal information, thinking with words, and expressing thoughts in words are in the very low range…[and are] indicative of a severe language disorder.” Ms K notes that the child had been attending a special language class in N Primary School where he “received intensive language intervention”.

Past behaviours

1. In June 2011, Ms M wrote a Behaviour Intervention Report. Under the heading “Behaviours of Concern”, she wrote “[The child] becomes quite frustrated and will harm other students, teachers and property. His behaviours of aggression can escalate quite quickly with no visible trigger.” She also notes that “behaviours have lead [sic] to five suspensions in the last twelve months…these behaviours have included punching, biting, failure to follow the teacher’s instructions and throwing objects at the Principal.”

2. Exhibit 2 also includes letters from the Principal of B Primary School, Ms H. Ms H writes that in June 2011 the child “threw classroom objects directly at [her] and repeatedly punched [her]… [the child] picked up a chair and repeatedly smashed it into the glass pane in the door.”

3. From 2012, the child has been attending a special needs class at D Public School. The child’s teacher uses a communication book, and the father annexes to his affidavit pages from that book where the child’s teacher has said he has been unsettled and oppositional, kicking and hitting, and putting his hands around other children’s necks.

Current behaviour

1. Both parties agree the child’s behaviour has improved since he began attending D Primary School. Both parties agree that the child is more self aware; he is able to recognise when his anxiety is increasing, and take time on his own to relieve that anxiety.

2. When considering the mother’s proposal for 32 days of travel, Ms S opined “a child with a diagnosis of autism and the vulnerability to change and anxiety that comes with such a diagnosis, it is unlikely that the child would easily manage a trip overseas away from his father and the paternal household for a period of a month.” Ms S said that “the child may not manage being with Mr A along with the many relative strangers that come with the emotional and social intensity of family holidays where the child would be surrounded by virtual strangers”. Ms S opined that “there is no evidence to suggest that the child’s evolving sense of himself as being of American ancestry is compromised” if he does not visit the USA on a regular basis and that “a trip such as proposed by [the mother] could compromise the gains the child has made to date”.

3. Ms S had the opportunity of listening to the evidence of Dr O. Dr O gave evidence that he had had considerable experience in dealing with patients with a similar diagnosis to the child and out of that group of patients, he said that he had had about 30 to 40 patients travel on long international flights. On only one occasion on one leg of the flight did one of those patients behave in a manner which was disturbing (the child had become sufficiently disturbed to attempt to leave the aeroplane whilst it was in mid flight by attempting to open the door of the aeroplane).

4. The father expressed what I accept were a number of genuine fears in relation to the flight upon which the child would go. He was concerned that the child may:

   85.1.be unsettled on the plane due to being confined for a long period;

   85.2.struggle to wear his seatbelt on the plane and struggle following instructions;

   85.3.be adversely affected by the noise of the aeroplane particularly on takeoff and landing;

   85.4.be overwhelmed by the large number of people of the plane and may be claustrophobic;

   85.5.suffer from jet lag and find that uncomfortable, or interpret that as a sickness;

   85.6.unintentionally hurt other passengers;

   85.7.be unable to perform his exercise or release (this is a behaviour which the child himself refers to as “Asperger’s syn-der-roll”);

   85.8.suffer from blocked ears.

5. The father conceded in cross examination that problems of wearing a seatbelt are probably not a major concern given that the seatbelt can be undone after takeoff and left undone until shortly before landing.

6. Dr O was not concerned about noise on an aeroplane (and in particular the noise of the plane when taking off and landing).

7. In relation to the father’s concern about the child suffering claustrophobia, there is no suggestion that the child has a phobia. The father gave evidence about how the child, in order to reduce stress, would perform exercises that the child refers to as “Asperger’s syn-der-roll”. Dr O gave some credence to the fact that the child would not be able to perform those types of exercises on the aeroplane.

8. The Independent Child's Lawyer sought an order that the mother advise any airline on which the child will travel of the child’s special needs, including the possibility that he may need a period or periods of isolation from other passengers. I am prepared to infer that on a plane used for international travel, there would be the ability for the crew of an airline to accommodate some type of arrangement whereby the child could have some space to himself if that became absolutely necessary during the flight.

9. The child has never had any problem with chronic middle ear infections nor has he had an operation for grommets or anything of that nature and I do not find that there is any weight that I should attach to the father’s concern about the child suffering from his ears being blocked as a result of pressure at takeoff and landing.

10. I accept that there are a number of well founded concerns based on the child’s condition and his unknown reaction to an international flight. The question I need to consider is whether or not the risk to the child of an international flight is unacceptable.  When assessing that, I need to have regard to measures that can be put in place to ameliorate that risk.

CONDITIONS TO AMELIORATE RISKS TO ANTHONY

1. The mother has confirmed that the child will have access to medical services in Idaho. He is a registered patient of the Family Practice Medical Center and specifically Dr W who is a general practitioner at that medical centre. The mother also says she has confirmed that the child would have access to speech pathology in Idaho. The mother consented to an order that relevant material, including reports from Dr O, Ms M and Ms K can be provided to Dr W.

2. During the hearing a number of suggestions were made to lessen the risk to the child of taking the flight.

3. Firstly, Ms S suggested that the first occasion be only with his mother and that Mr A not accompany them. The basis for suggesting this can be readily discerned by reading that part of Ms S’s family report that deals with her observations of the child and Mr A alone, together with her earlier observations in the previous year as detailed in the counselling memorandum. The mother has accepted this suggestion as being appropriate.

4. Dr O suggested that the key to a successful trip for the child is for him to approach the trip in a positive frame of mind. It is important in that context that the father do everything he can to positively reinforce to the child that he will have a good time with his mother in the USA and reinforce the advantages that the child might get from the experience of travel and meeting his mother’s family in the USA. The father has accepted that that is an appropriate suggestion.

5. Ms S suggested that the father should prepare with the child visual cues (for example, photos and other items) that might remind the child of his father and for the child to carry with him on the trips. Again the father has accepted that that is an appropriate suggestion.

6. Dr O suggested that the child be familiarised with the concept of air travel. This could be achieved by having each of the child’s parents take him to Sydney International Airport and allow him to view planes arriving and departing.

7. Counsel for the father expressed some concern about Dr O’s proposal that the child might be assisted with the use of medication before, during and after the trips. Dr O opined that it might be appropriate to provide the mother with some medication that the child could take that would be effective during his flight, both to the USA and returning from the USA. Dr O also said there might be other medication that the child might appropriately receive to assist him with the difficulty with jet lag. Dr O said that the child may well be susceptible to a greater reaction to jet lag than might otherwise be normal. Dr O also suggested that it might be appropriate for the child to trial such medications prior to the flight to confirm that the child did not suffer any significant side effects from taking those medications.

8. It is suggested that both the parents see Dr O at an appropriate period before the scheduled flight with the child to take Dr O’s advice in relation to possible assistance to the child by way of the use of medication. I find that it is appropriate for me to order that the parties attend Dr O to seek that advice and for them to follow any advice that Dr O provides, including administering to the child any medication that Dr O prescribes in the way that he prescribes it.

1. Dr O also gave evidence that the child’s disability predisposes him to being able to be absorbed for lengthy periods of time in activities which he finds enjoyable. Those activities would include both electronic games and watching video material.

2. In the event that the mother’s travel with the child to the USA is conditional upon the matters that have been discussed above, I find that if those actions were taken, it would significantly ameliorate any risk that the flight to and from the USA poses to the child, so that risk is not unacceptable.

OTHER RISKS TO THE CHILD ASSOCIATED WITH THE PROPOSED TRIP

1. The mother will be on the ground in the USA on the first occasion she travels for about 14 days. The mother has, within the close confines of the location at which she proposes to stay, 47 relatives, all of whom she intends to introduce to the child during that period of time, either individually or in groups.

2. Counsel for the father submitted that given the mother’s enthusiastic wish that the child meet her relatives in the USA, that she would be less than sensitive to the child’s needs and reactions to meeting that number of new people within such a short space of time.

3. To mitigate against that difficulty, I find that the mother has proposed very sensibly that she live in spacious accommodation with a friend Ms C, the child’s godmother. The father confirmed in his evidence that Ms C’s accommodation is spacious and suitable and that the child would find it as a quiet haven and retreat from what otherwise might be the overwhelming and tumultuous experience of meeting so many relatives in the USA.

4. Dr O gave evidence that the major problem that the child has is with social interaction, particularly with people with whom he is not familiar. Dr O said that in the event that the child started to get anxious from meeting so many strangers, he could let his mother know. Dr O opined that if the child became fatigued or tired, that it was highly likely that the child would have the ability to express that to his mother. Overall, Dr O did not think it would be a problem with the child being introduced to so many relatives. The family report gives me some comfort that the mother has some sensitivity to the child’s difficulties and I am confident that she will be cognisant of the difficulty that the child might feel in meeting so many new people in such a small space of time.

THE APPROACH IN CHILDREN’S CASES

1. Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

3. Not all matters under s 60CC(2) and (3) FLA are of similar weight in the context of the decision that I must make in this case.

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) FLA)

1. It was common ground that the child has a very strong relationship with both his parents and benefits greatly from those relationships. Ms S indicated that in her opinion it would be catastrophic for the child if the mother was to attempt to retain the child in the USA and deprive the child of his current relationship with his father.

2. Ms S in the family report describes poignantly a circumstance that arose at the end of the interviews which took place on American Thanksgiving Day. The child’s parents had agreed, notwithstanding the fact that the child would normally spend Thursday nights each week with his father, the child was to go with his mother on that particular Thursday night in order to celebrate Thanksgiving Day. The child became quite agitated about the fact that he was not going to be with his father on Thursday night in accordance with his normal routine. Ms S opined that that agitation was not unusual and was symptomatic of the child’s condition. Ms S was very impressed at the ability of the father to calm the child and to encourage him in a way that enabled him to leave in a relaxed manner with his mother for the Thanksgiving celebrations. Those observations reinforced the opinion of Ms S that the child and his father had a very strong bond.

3. The mother has, in her 2010 affidavit as set out above, expressed the view that she might be able to stay in the USA for a lengthy period without that bond being threatened. I agree with Ms S’s assessment that it would be catastrophic for the child if the mother continued to hold that attitude. The mother, however, in my view has progressed in her understanding and I am confident that she currently understands the benefit that the child derives from having a meaningful relationship with his father.  

The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

1. The risks to the child do not fall under this heading. The risks that I deal with in this hearing are confined to:

   112.1.The mother retaining the child overseas away from his father; and

   112.2.The child suffering psychological harm from being subjected to air travel that he finds difficult and unpleasant.

2. I have discussed factual matters dealing with those risks above and will deal with those risks in my conclusions.

The additional considerations

Child’s views (s60CC(3)(a))

1. In the counselling memorandum produced by the family consultant in November 2010, the family consultant records that:

   “[The child] was fidgety and had difficulty verbalising his thoughts. He appeared guarded and not wanting to say the wrong thing. He had a photograph book with him about his family in ‘America’ but was difficult to engage about his book or the USA, in general, except to say that he would like to visit his relatives in America ‘and that’s all I want to say’.”

2. One year later in the interviews for the family report, the family consultant again spoke to the child about his views in relation to the trip. The family report writer reports as follows:

   42. When asked about his three wishes, [the child] [sic] answers were within the range of what a child of his age in his predicament might give. He said he would like that: “It would rain dollars”, “It would rain big money” and “I would never have to go to school”. [The child] appeared disinterested in the idea of travelling to the USA. He appeared flat and expressionless when the topic of the trip was raised with him.

3. The mother and father give differing accounts of the child’s views. The father asserts that the child was upset when he understood his father would not be accompanying him to the USA.

4. Counsel for the father objected to paragraph 25 of the mother’s affidavit of 18 November 2011 where the mother attempted to give evidence about views expressed by the child about meeting her family members. Counsel for the mother was given leave to lead oral evidence in relation to that topic. In re-examination, counsel for the mother asked the mother about the child’s knowledge of his maternal family. The mother indicated that the child knew about his Aunt and Uncle and that she had made him a book about immediate family members and each person had a particular page. This book is kept in the child’s collection of books and he has had it from just after the move to Town B. There is also a portrait with lots of family faces in it, being the relatives from Idaho, which is in the child’s room. The mother indicated that the child has commented on how many of the people in that photograph have similarities to the way she looks.

5. Notwithstanding the evidence about the child’s difficulty in communication electronically, the mother gave evidence that the child has spoken to his maternal aunts and his uncle and his two cousins on the telephone. The mother has conversations with those people on a weekly basis but I was not able to tell precisely how often the child participates in them.

6. I find at the current time the child is somewhat indifferent to travelling to the USA to see members of the mother’s family.

7. Dr O indicated that it is very important for the child to have a positive attitude to the trips in order for him to be able to enjoy them. Notwithstanding that the child is currently indifferent to the trips, I find that that indifference could be turned around, particularly if both parents positively reinforce to the child that he will enjoy the trips (once the preconditions of the trip happening have been satisfied).

8. Notwithstanding that the child is only nine and a half years old and is developmentally delayed, it is clear from the family consultant’s original memorandum in November 2010 that the child is well aware that there is a difference of opinion between his parents as to whether or not these trips are a good idea. In 2010 the child was guarded and did not want to say the wrong thing. the child’s indifference may well be as a result of his understanding as to the difference of opinion between his parents. As I have earlier said, positive reinforcement, particularly from his father, is essential for the child to benefit from the proposed trips.

Relationships of the child with the parents and other persons (s60CC(3)(b))

1. The father says the child has a close bond with his paternal family. The father resides with the paternal aunt and her child, L. The father asserts that “[L] and [the child] are particularly close more like brothers…. Separating [L] and [the child] even for a temporary period would hurt them both.”

2. Ms S noted that “[the father] and [the child] appeared to have a warm, interactive relationship in which [the child] appeared confident and relaxed.”

3. The mother deposes that the child and Mr A have “a strong bond”. However in their initial interview in November 2010, the child told Ms S that Mr A “is not nice to [him]” and he finds it “sometimes scary” when he is with the mother and Mr A. In a subsequent interview in November 2011, Ms S also noted that “[the child] and Mr [A] appeared to have a distant and somewhat tense relationship.” She observed the child chose a seat as far away as possible from Mr A.

4. Ms S observed a “warm open relationship” between the child and his half sister T.

5. Two things arise from the discussion above. Firstly, in the event that it turns out to be the case the father is unable to enter the USA because he has a conviction in Australia (having received stolen goods and been fined $4,000), there are other family members on his side who have a strong relationship with the child who would be able to travel to the USA for the purpose of escorting the child back to Australia should that become necessary. Secondly, the relationship with Mr A as described in the family report (as at November 2011) remains problematic and as I have earlier indicated, I accept (as does the mother) the wisdom of Ms S’s suggestion that the first trip to the USA be between the child and the mother alone (without Mr A being present).

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (s60CC(3)(c), noting (s60CC(4))

1. The father says that the mother does not accept phone calls from him and “the only means of communication is via SMS”. He deposes “the Applicant Mother does not communicate with me on [the child]’s therapy; she has never communicated with me on her moving residence and telephone numbers contrary to Court Orders nor has she ever consulted me on the school [the child] will be attending.” He says that he has never spent Christmas with the child, contrary to Orders.

2. The mother denies these allegations. She says that the father has attended all medical, speech pathology and school meetings for several years. She deposes that the father knew 45 days in advance of her relocation to Town B. The mother asserts the father “has chosen not to have Christmas” with the child.

3. As I have already commented, the mother gave inconsistent oral evidence about the number of days in advance that she said she told the father about the relocation to Town B. I accept the father’s version that the mother did not tell him about these matters. I accept the father’s evidence about communications between himself and the mother where that evidence is in conflict.

4. The judgment of Flohm J in 2007 and the contents of parts of the affidavit filed by the mother in 2010 (quoted above) evidence the fact that the mother has not at all times shown an ability to appreciate the value to the child of a close and continuing relationship between the child and his father.

5. I also accept the father’s evidence that the mother was less than cooperative on one Father’s Day (when she was ill). On that day the father communicated with the mother to suggest that he would travel from Town X to Town B to pick up the child so that the child could be with him during Father’s Day. The mother failed to respond to that text message.

6. I also find that some of the earlier text messages that the mother had sent to the father (although the mother claims that they have been exhibited without the context of the father’s text messages) do not do her any credit. I am satisfied however that in recent times there has been no repeat of the type of text message that is contained in Exhibit 1 (the mother in those earlier text messages referred to the father as a “vindictive cunt”).

7. The father in oral evidence however reported that that situation has improved to some degree in recent times. I gained the impression during the hearing that the parties (although they still do not like one another) have developed a more businesslike relationship in handling their roles as the child’s parents. The parties are involved in a face to face changeover on a fortnightly basis. There have not been any difficulties or any incidents reported in the evidence in respect of those events for a considerable period of time.

8. The willingness of the father to facilitate the child’s relationship with his mother does not seem to be in question and I have earlier commented upon Ms S’s very positive impressions of the father on the evening of the day when the interviews for the family report took place.

Likely effect of any change in the child’s circumstances (s60CC(3)(d))

1. This is an important factor in this case.

2. I have discussed above the risks associated with the child travelling with his mother to the USA and the conditions that might ameliorate those risks.

3. The first occasion when the mother will travel with the child to the USA is in the forthcoming Christmas school holidays. The child will return to his father on 5 January 2013. He will be with his father thereafter for one half of the school holidays.

4. At the end of the hearing there was some confusion about where the child would go to school next year. During the hearing, it seemed to be an agreed fact that the child would move from his special needs class at D Primary School back to a mainstream class at Town B at the commencement of the 2013 school year. In those circumstances, counsel for the father made a submission that any trip should be delayed until at least Easter 2013. At the conclusion of submissions, counsel for the mother indicated, however, that it was the mother’s understanding that the child would not move from his special needs class at the end of 2012. At the request of the court, the lawyers for the parties and the Independent Child's Lawyer had a joint telephone conversation with Mr P the principal of D Primary School. It was clear as a result of that discussion that the child would remain at the D Primary School until at least June 2013 at which time there would be a review as to his progress and to his future placement. Accordingly, there will be no change in the child’s school that I need to take into consideration when considering the first trip.

5. After the first two trips, the mother proposes that the child may well be taken to the USA for the Independence Day holiday which coincides with term school holidays. In the event that that happens, then there will need to be makeup time between the child and his father. The father is content to have that makeup time during school term (notwithstanding the fact that it will increase the number of trips that have to be made backwards and forwards from Town X during that school week).

6. The mother indicated that because Thanksgiving fell within the last school term she would not be taking the child to the USA for Thanksgiving and the mother generally conceded that she would not go overseas with the child during school term.

7. The first year where the mother might take the child to the USA at the time of 4^th July is 2014. I was told by counsel for the mother from the bar table that the 4^th July in 2014 falls within ordinary term school holidays.    

Practical difficulties and expense of the child spending time and communicating with a parent (s60CC(3)(e))

1. The financial position of both parties is very modest. The mother has minimal assets. She has savings currently of approximately $6,500. She has an earning capacity of about $55,000 per annum. The financial circumstances of Mr A were not explored.

2. As earlier indicated, the father gave inconsistent evidence in relation to what his level of income was (stating originally it was $30,000 but then giving other evidence that indicated that it was upwards of $60,000 per annum). The father gave evidence that he has minimal savings.

3. These matters create considerable difficulty in terms of making the order that the father seeks in relation to the cash bond to be provided by the mother.

4. I am satisfied however that the mother has sufficient financial resources to facilitate the trips proposed by the mother for herself and the child and the father has an ability to pursue her if she fails to comply with the orders.

The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s60CC(3)(f))

1. I am confident that both parents have a capacity to physically care for the child and that both parents are mindful of his special emotional and intellectual needs.

The maturity, sex, background and lifestyle of the child and parents (s60CC(3)(g))

1. The child was born in the USA and came to Australia when he was six months old. The mother concedes, and I find, that the child is habitually resident in Australia.

2. The child, however, has American heritage and background. In Dr O’s report dated 22 June 2011 he noted “[The child] spoke with slightly unusual prosody (rhythm, stress and intonation of speech). He spoke with a North American accent and his speech sounded like a character from a TV cartoon show”.

3. It is important for the child to have an opportunity to be exposed to his American cultural roots.

4. Justice Flohm, having found that the mother was a flight risk, made orders providing that the father subsidise the travel costs between the USA and Australia for members of the mother’s family at a rate of AUD$1,500 every two years, provided that the mother gave the father in writing no less than four months ahead of time the following details:

   150.1.The name of the family member travelling, the passenger to be either the mother’s sons or one of the mother’s siblings;

   150.2.Details of the flight and return to the USA;

   150.3.All contact details of the travel agent in the USA or Australia who will be issuing the airline ticket, so that the father can make the payment direct to that travel agent and arrange for a copy of the airline ticket to be provided to him by the travel agent.

5. It is an undisputed fact that no payment has been made under that order (order 17 of Flohm J’s orders of 11 December 2007). The father claims that the mother at no stage provided him with the prerequisite details of a proposed trip by a relative from the USA. The mother says that none of her relatives are sufficiently financially able to afford a return flight, even with that level of subsidy being given by the father. Counsel for the father invites me to find that that assertion by the mother is untenable and points to the fact that the mother, in her current employment, has access to cheap airline tickets (although as discussed during submissions with counsel for the father, there is no evidence before me that that concessional rate is available to relatives of the mother). The overall submission by counsel for the father was that the relatives could come to the child rather than the child going to the relatives in order to allow the child (in accordance with the objects in s 60B(2)(e) FLA) to enjoy his culture, including enjoying that culture with other people who share that culture.

1. Given that what Flohm J ordered in 2007 has not yet worked, I find that it probably will not be something that is of practical utility in the future.

2. I find that it is advantageous to the child to travel to the USA so that he can have some experience of his mother’s culture.

If the child is Aboriginal or Torres Strait Islander (s60CC(3)(h))

1. Not applicable.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i), noting (s60CC(4))

1. The father’s attitude to the child and to the responsibilities that the child’s condition imposes upon him is exemplary. 

2. The mother’s is too. The mother and Mr A have undertaken some parenting courses, however they did not engage in those courses together as recommended by Ms S.

3. The Independent Child's Lawyer has asked for an order that before Mr A travels with the child and his mother to the USA at the end of 2013, that the mother and Mr A attend together a parenting and/or counselling program designated to educate carers of children with special needs.

Any family violence involving the child or a member of the child’s family (s60CC(3)(j) and(k))

1. The mother raises some historical issues in relation to family violence and the father being physically aggressive to the child.

2. The mother asserts in her affidavit that the father is abusive and the child has returned home with a bruise on his forehead explaining “Daddy head butted me.”

3. The mother notified the Department of Community Services (“DOCS”) when the child returned from his father’s home with three handprint size bruises on his legs. The mother deposes that DOCS chose not investigate the matter.

4. These matters were not raised during the hearing.

5. It is not necessary for me to make any findings about some of the older allegations. It is quite clear that the child has a very close and warm relationship with his father and is not in any way apprehensive about him. I have also already commented upon the improvements in the parents’ ability to interact with one another in a businesslike manner.

Likelihood of order leading to further proceedings (s60CC(3)(l))

1. I do not believe this is a matter of any significance. The parties have litigated in the past and may well litigate in the future if they are unable to reach an agreement over a certain issue. The areas of disagreement between the parties however seem to be narrowing rather than escalating. The mother for at least the foreseeable future seems to have conceded that it is not appropriate to contemplate the child permanently relocating to the USA.

Any other fact or circumstance that the Court thinks is relevant (s60CC(3)(m))

1. Counsel for the father made the submission that the mother’s application should be seen as being one that is not child focused but rather focused on the mother’s needs. I accept that the mother has a need and a passionate desire to introduce the child to her extended family members in the USA. I also accept that if she is able to be given that opportunity, it will make her happy. As set out above however, I do not accept the general proposition that the mother’s application should be seen as an application which is in no way child focused.

2. It is of course possible for an application to be both child focused and an application which fulfils the need of a parent. I find that the mother’s application in this case is of that nature.

3. I can take into account the benefit that the mother will derive from the orders that are made. I infer that there will be a flow on benefit for the child because the mother has been able to fulfil her ambition to connect the child to her side of the family in the USA.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. There is currently an order in existence for equal shared parental responsibility. As my earlier comments would indicate, I believe the mother was less than diligent in living up to her obligations under that order when she unilaterally moved the child from N School to B School.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. The current orders made in 2007 (which will remain substantially in place) provide that the child is with his mother for a total of eight nights per fortnight and with his father for a total of six nights per fortnight. Any time that the mother has overseas will be substantially during periods of time that she would otherwise be entitled to have the child under existing orders. In as much that is not the case then the child will spend the following week upon his return from the USA with his father.

CONCLUSION ABOUT UNACCEPTABLE RISKS AND BEST INTERESTS

1. I find, having considered the matters that I have discussed above, that there is no unacceptable risk to the child arising out of the proposal of the Independent Child's Lawyer as substantially supported by the mother, for the child to be able to travel with his mother to the USA for limited periods on an annual basis. I specifically find that the mother is currently not a flight risk if the suggested safeguards are in place.

2. In the family report Ms S recommended that the mother be permitted to take the child on a holiday initially for a period of ten days or two weeks. When asked about that in the witness box, Ms S referred to the child currently having a regular two week cycle that he was used to. What the mother proposes is three days longer than the outer limit of what Ms S recommended. The Independent Children's Lawyer talked in terms of 16 days (but that probably was a miscalculation of the mother’s 17 day proposal which the mother had referred to as 16 days).

3. Erring on the side of safety I intend to limit the period to 16 days which means that I will move the return dates back to 5 January in 2013 and 12 January in 2014.

4. Ms S also recommended that the first two trips be of the same length (16 days), and then “move to a longer trip from there.” She opined that it would not be appropriate to double the length of travel on the third trip but rather “only increase by another five days or a week... I wouldn’t go any greater than [21 days]… til [the child’s] around the age of 14.”

5. I also conclude that there is no unacceptable risk to the child arising from the 20 hour journeys to and from the USA provided that those matters that would ameliorate that risk (that I have discussed above) are put in place. I find that there are otherwise demonstrable advantages to the child in being able to have contact with his mother’s family in the USA.

6. I also find that the mother herself will be happier if allowed to make these trips and that must positively impact upon her ability to parent the child.

7. I accept Ms S’s recommendation that the child’s overseas travel should be restricted to 21 days at least until he reaches the age of 14. Once the child reaches the age of 14, either party can apply for a variation of the orders in relation to the child’s overseas travel.

PROPOSED ORDERS

1. Given the level of genuine apprehension felt by the father in relation to the upcoming trips, it is reasonable to require the mother (and the mother consents) to an order that she, by way of text message, inform the father as to when the child arrives in Los Angeles and when the child arrives in Idaho (she should text him from these places on the way home as well) and for her to text him, daily if possible but not less than every third day, with a short message as to how the child is going.

2. Ms S also made it clear that it would be in the child’s best interests not to discuss travel plans until arrangements were firmly in place.

3. I note that there was an issue raised as to whether or not a passport has to be obtained before airline tickets can be bought. If that is so, then the child’s passport application may need to be signed by his parents and photos obtained without disclosing to him the purpose of the photographs.

4. The Independent Child’s Lawyer questioned the mother on the child’s current eating habits. The mother agreed he is a finicky eater. Although this is not unusual for children of his age, I am prepared to make the order requested by the Independent Child’s Lawyer that the mother inform the airline of the child’s dietary requirements.

5. The Independent Child's Lawyer has made an application that both parties pay by way of costs, the sum of $4,044.50.

6. It is fair to say that counsel for the Independent Child's Lawyer did not vigorously pursue that application. As I have already indicated, the financial circumstances of both parties are very modest. The costs of looking after the child and the proposed overseas travel (including the bond that the mother will be required to provide under the orders to which she has agreed) mitigate against making an order for costs in favour of the Independent Child's Lawyer. I decline to make an order for costs in favour of the Independent Child's Lawyer’s based on the financial circumstances of both of the parties.

I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 September 2012.

Associate: 

Date:  7 September 2012