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Federal Magistrate Henderson considers relocation to Serbia

Federal Magistrate Henderson considers relocation to Serbia

FMC Family Law Judgments recently posted on the Austlii web site
FAMILY LAW  Parenting  mother seeks to relocate to Serbia  child has autism
ORDERS

    (1) The mother to have sole parental responsibility for the child, [X], born in 2005.

    (2) The child to live with the mother.

    (3) The mother be and is hereby permitted to relocate the residence of the child to Serbia on a permanent basis by giving the father twenty-eight (28) days written notice of her intention to travel to and live with the child in Serbia.

    (4) To facilitate Order 3 the childs name to be removed from the Airport Watch list forthwith.

    (5) The mother to advise the father twenty-eight (28) days prior to her travel to Serbia of the address where the child will be living, a contact telephone number, and email address.

    (6) The mother is to return with the child to Australia during January or February each year commencing 2010 for a period of not less than four weeks for the purposes of facilitating the child spending time with the father in Australia at her cost.

    (7) The mother to notify the father in writing twenty-eight (28) days prior to her arrival in Australia and provide to him details of her living arrangements whilst in Australia and a contact telephone number.

    (8) The child spends with his father in 2010 and each year thereafter as agreed but failing agreement:

        * (a) For the first five (5) days commencing the second day after the childs arrival in Australia:
                 (i) If the father is working, for no less than three hours on the 1st , 3rd and 5th day at times which accommodate the fathers work roster;
                 (ii) If the father is not working in the first week then each alternate morning from 9am to 12noon on the 1st, 3rd and 5th day.
        * (b) Thereafter the child to spend from 9am to 4pm on the 7th, 9th and 11th days in his fathers care or with his paternal grandparents if the father is unable to take annual leave.
        * (c ) On the 13th and 17th day the child to spend two periods of three days and two nights in the fathers care at the home of the paternal grandparents.
        * (d) From the 22nd day to the 27th day with the father at the home of the paternal grandparents.


    (9) Upon the child reaching 5 years of age, in the absence of agreement between the parties, the child spend time with his father over the period of time in Australia as follows:

        * (a) In accordance with order 8 (b) for the first 5 days;
        * (b) In accordance with order 8© commencing on the 7th day and continuing for the next eight days;
        * (c ) Commencing on the 18th day and continuing until the 27th day.


    (10) The parents each obtain a computer connection within 28 days of the mothers arrival in Serbia such that they can use webcam or skype to communicate with each other and with the child.

    (11) The mother to send to the father a photograph of the child on three occasions each year.

    (12) The mother is to advise the father of all preschool, kindergartens, speech therapists, occupational therapist, and other treating specialists the child will attend or be treated by from time to time.

    (13) The mother forward to the father copies of all the childs pre-school and school reports, medical reports and other assessments with such reports to be translated into the English language if not already in that language prior to sending them to the father.

    (14) The mother to ensure that all health professionals and educational professionals who are involved with the child permit the father to contact them on any occasion to discuss the childs progress with them.

    (15) Where necessary the mother to translate any written requests the father makes into the Serbian language and forward on the translated request on behalf of the father. The mother to translate any written answer into the English language if necessary and forward same to the father.

    (16) The father may spend time with the child at any occasion he is able to travel to Serbia by giving the mother twenty eight days notice of his intention to travel and a copy of his itinerary. Provided the father stays at the accommodation provided by the maternal grandparents the fathers time with the child will be as follows:

        * (a) Two days and one night on two occasions;
        * (b) Thereafter three days and four nights on three occasions;
        * (c ) At other times as agreed.

THE COURT NOTES THAT:

    (17) The maternal family will make a unit available for the father and his parents when they are able to travel to Serbia.

IT IS NOTED that publication of this judgement under the pseudonym Amador & Amador is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
The evidence of the Family Consultant Mr Norman Goodsell said
#246 What has most satisfied me on this issue is the mothers parenting capacity. The mother has parented this child to a high level despite considerable obstacles being her isolation in living in Australia, her cancer and her childs significant disabilities. This mother will never place her own interests above what is in her sons best interests. The mother has displayed this attitude and conduct time and time again whilst living in Australia. [X] has and will always come first in her priorities.

#247 The mother did not leave Australia when she could have at separation, she has taken up every available option to maximise her sons development, and she has ensured he has begun a relationship with his father despite her real fear of the father. She has put her needs on hold for his needs. Merely because she wishes to remove the child to her home country and where he was born does not mean she is putting her needs before her sons. That would be a far too simplistic approach in this matter.

#248 I have no doubt the mother will continue to put her childs interests before her own whether she lives in Australia or Serbia and would not propose to take him to Serbia unless she was satisfied his needs would be met as they have been met in Australia. To find otherwise would be inconsistent with her hitherto exemplary parenting role with this difficult child.
Federal Magistrate Henderson said
In relation to the Presumption of equal shared parental responsibility

#270. I now must assess the parties competing applications having regard to the matters in section 60CC (2)(3) and (4) of the Act.

#271. The first issue I must determine is whether the presumption of equal shared parental responsibility ought to be rebutted. If it is to be rebutted then I need not consider the issue of equal time or substantial and significant time as orders in the child's best interests but will make an order I believe to be in his best interests.

#272. This is a matter that unfortunately having regard to the poor level of communication between the parents, their poor relationship and conduct towards each other during the marriage, the mothers allegations of significant violence perpetrated on her by the father and the fathers admission of a significant degree of physicality during the relationship causes me to find that the presumption of equal shared parental responsibility should be rebutted.

#273. These parents cannot communicate, they cannot come to a joint decision and this child with his autism spectrum disorder requires decisions to be made that are only made with his interests in mind and no other matter. That responsibility will rest with the mother.

#274. The mother will be required to advise the father of the decisions made, including details of his medical appointments, ongoing therapies and the like, places of preschool and school. The decision making must reside with one parent as these parents had no real or positive relationship, continue to have no relationship and the mother is fearful and not trusting of the father. Their only connection is their son.

#275. Having so found I need not consider equal time or substantial and significant time but must consider the matters under sections 60CC(2) (3) and (4) of the Act to make an order in the childs best interest having regard to the competing proposals of the parties.

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