Bass and Bass

FAMILY COURT OF AUSTRALIA

BASS & BASS

[2012] FamCA 263

FAMILY LAW – CHILDREN – With whom a child shall live and spend time – where the child has a mild intellectual disability – where the child lives with the father – where the child has not had consistent and regular contact with the mother since February 2010 – where the child has five older siblings with whom he has not had consistent and regular contact since February 2010 – where the father is found to have failed to encourage the child to spend time with the mother and siblings – where the father is found to have influenced the child into thinking his mother would kidnap him and his siblings are abusive – where the father has involved the child in the Court proceedings by talking to him about the mother’s proposed orders – where the Court believes that the child will not be able to maintain a meaningful relationship with the mother and siblings if he continues to live with the father – where the child’s residence is changed to the mother and the mother has sole parental responsibility

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bass

RESPONDENT:

Mr Bass

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYF

2801

2006

DATE DELIVERED:

26 April 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

6 – 10 and 23 – 24 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The mother have sole parental responsibility for the child B P Bass (“the child”) born … August 1997.
The child live with the mother.
The child attend D High School IM Class, or other such school that the mother chooses which has an IM Class or other appropriate resources for the child.
The child have no contact with the father, directly or indirectly including telephone or email communication prior to the child attaining his majority except with the consent of the mother.
The father is restrained from attending or approaching within one kilometre of the mother’s house at the Upper North Shore and D High School or such other school as the mother directs that the child shall attend.
The mother keep the father informed of all major social, educational and medical events in the child’s life, as frequently as the mother wishes but not less than once every ten weeks.
The mother cause the child to attend for counselling on Ms F, Clinical Psychologist at …, or such counsellor, therapist or psychologist as Dr S may recommend from time to time, for the purpose of assisting in the implementation of these orders and that:
(a)the child continue to attend with such frequency and with or without the mother as the nominated clinical psychologist requests
(b)leave is granted to forward to Ms F a copy of these orders, reasons for judgment and the two reports of Dr S
(c)such counselling be confidential and non-reportable
(d)the father is restrained from having any contact directly or indirectly with Ms F.
The father forthwith surrender to the mother and deliver to her solicitors all passports currently held by the father relating to the child and such passports be retained by the mother.
The father be and is hereby restrained from doing any act or thing to causing any act or thing to be done or permit the issue of any passport or other travel document relating to the child save that the father will consent to any passport which the mother seeks to have issued for the child.
Each parent be and is hereby restrained from removing the child’s permanent residential address from the Sydney Metropolitan Area.
The mother and father each be restrained from discussing these proceedings with the child, within his presence or within his hearing and ensure as far as possible that no other person other than the Independent Children’s Lawyer or Ms F discuss these proceedings with the child or within his presence or within his hearing.
The child is to be brought forthwith to the Court for the purpose of having explained to him in language he can understand by such person as the Director of Family Dispute Services may nominate the effect of this judgment and orders.

The mother and father each be, and is hereby restrained from showing the child any of the affidavits, reasons for judgments, applications or reports prepared for the purpose of these proceedings and each be and is hereby restrained from showing any material annexed or exhibited to such documents.
Each of the parents be and are hereby restrained from criticising or speaking badly of the other parent or their family or permitting anyone else to do so, including each parent’s partner and their children and this restraint applies to criticism in the presence of or the hearing of the child and includes any such criticism in a written or electronic means of communication.
Both the mother and father shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or the other parent’s partner or family either to or in the presence of the child.
The father is to sign all necessary documentation to cause the father to be removed as Trustee and Co-Signatory on the Trust Fund set up for the child with the National Australia Bank, and that the mother be declared as the sole trustee and signatory of that account. If either party refuses or neglects to sign any document necessary to implement these orders within 14 days of a request to do so, the Registrar is appointed to execute such document on behalf of that party pursuant to s 106A.
Within one (1) month of the date of these Orders the father pay to Legal Aid NSW the sum of $9,593 (GST inclusive), such monies being a contribution to the provision of an Independent Children’s Lawyer in these proceedings.
Within one (1) month of the date of these Orders the mother pay to Legal Aid NSW the sum of $7,943 (GST inclusive), such monies being a contribution to the provision of an Independent Children’s Lawyer in these proceedings and it is noted that the mother has paid an initial contribution of $1,650 toward such costs.
Within one (1) month of the date of these Orders the father pay $1,760 to

Dr S being half the outstanding fees for the provision of her report and attendance at Court to give evidence.
Within one (1) month of the date of these Orders the mother pay $1,760 to

Dr S being half the outstanding fees for the provision of her report and attendance at Court to give evidence.
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 these Orders.
The exhibits may be returned upon the usual undertakings.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed for the list of Active Pending Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bass & Bass 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: SYF 2801 of 2006

Ms Bass

Applicant

And

Mr Bass

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Before the Court are proceedings between parents with respect to the parenting of a child of their marriage, B (“[P]”), born in August 1997 and now 14 years of age.
The parties have five other children aged between 18 years and 26 years who are estranged from the father and are not the subject of these proceedings.
The child P has a mild intellectual disability. He has been attending E High School since February 2010 and is in an IM class. According to the independent expert in the matter, Dr S, the child has the emotional intelligence of an 8-10 year old and according to his teacher Ms H he has an IQ in the range of 55 – 75.
The child has been the subject of litigation between the mother and father from April 2006 to date. The child currently resides with the father. Prior to this he had been subjected to various arrangements. The child lived in a shared care arrangement with the parties from December 2005 until late January 2006. From January 2006 until July 2008 the child lived wholly with the mother and saw the father each Sunday from 9.00 am to 6.00 pm, with changeovers occurring at a northern Sydney suburb Police Station, requiring the father to travel to and from his home at a southern Sydney suburb, to the northern Sydney suburb.
In July 2008, Orders were made by consent providing that the child live with the mother and father on a week-about basis.
In late 2008, a dispute arose with the father as to the child continuing to attend primary school at Y Public School and so the parties came to an agreement to cease week-about contact and for the child to live with the mother during the week and to spend weekends and the school holidays with the father.
For the period May 2009 to August 2009, the parties reverted back to the

week-about arrangements.
Then from February 2010 to the present, the child has lived wholly with the father. The circumstances relating to the child’s change of care from the mother to the father at this time is significant. During 2010 and 2011 the mother has had limited contact with the child.
Since about 2008, the child has been accustomed to travelling to Southeast Asia with the father who has a Southeast Asian wife and business interests there. A contentious issue in this matter is the continuing of such travel to Southeast Asia by the child.
Each of the parties seeks orders as to the exercise of parental responsibility and residence orders.
The mother seeks that there be no contact between the father and the child. The mother says that should the relief sought by her not be granted then she believes that in order to end the child existing in a continuing climate of discord and dispute which she sees in that event his only future were she to continue to have contact with them there should be no contact between the child and her.
The father proposes that there be contact between the child and the mother on three weekends in each school term, and at such other times as agreed in writing.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in 1947 and is now aged 65.
The mother was born in 1961 and is now aged 51.
The parties married in 1984.
J Bass was born in 1985 and is now aged 27 years.
U was born on in 1987 and is now aged 25 years.
L was born in 1989 and is now aged 22 years.
A was born in 1992 and is now aged 20 years.
V was born in 1994 and is now aged 18 years.
P was born in August 1997 and is now aged 14 years.
The wife asserts the parties separated on 3 April 2004 under the same roof. The husband asserts separation occurred on 2 July 2004.
On 23 July 2004, the child P was diagnosed with a mild intellectual disability.
The parties were divorced on 18 February 2005.
In December 2005, the parties commenced living in separate accommodation. The mother and the older five children commenced living at an Upper North Shore suburb. The father and the child remained living at the southern Sydney suburb. The parties signed a Memorandum of Understanding providing that the parties share the care of the child with him living with each of the parties three days one week and four days the next week on an alternate basis. This arrangement remained in place until January 2006, when the mother insisted that the father’s time with the child be reduced to daytime each Sunday.
In February 2006, an interim Domestic Violence order was made protecting the mother from the father.
On 17 July 2008, final parenting orders were made by consent. The orders provided that the child P live in a shared care arrangement with the mother and father. In late 2008 a dispute arose with the father as to the child continuing to attend primary school at Y Public School and so the parties came to an agreement to cease week-about contact and for the child to live with the mother during the week and to spend weekends and the school holidays with the father. For the period May 2009 to August 2009 the parties reverted back to the week-about arrangements.
The Orders of 17 July 2008 also provided for the child’s ongoing financial support and required the father to pay all of the child’s school fees and related expenses, tutoring and musical lessons, half of the child’s hospital, orthodontic and dental therapy and other medical expenses. The Orders also required the father and mother to establish a child support trust and required the father to pay the sum of $350,000 into that trust. The Orders provided that the funds were to be applied in payment of the father’s child support obligations. A bank account was established with the National Australia Bank with the mother and father as joint signatories of the account. Both parties’ signatures are required for any withdrawals from the account. The purpose and use of the funds has been an issue between the mother and the father, with the mother asserting that the funds are solely for the child’s education and future.
In late 2008 early 2009, the mother first observed the child walking with a ‘waddle’.
On 25 June 2009, the mother asserts that the parties reached an agreement that the child would attend a Catholic College in 2010 and that residence arrangements would then revert to the child living with the mother during school weeks and the father on weekends and the Term 1 school holidays. The father disputes that this agreement had been reached.
In July 2009, Dr T identified the child’s ‘waddle’ as a medical problem.
From 18 December 2009 to 27 January 2010, the child travelled to Southeast Asia with the father.
On 28 January 2010, the child commenced high school at the Catholic College.
From 29 January to 1 February 2010, the child spent time over the weekend with the father.
On 1 February 2010, the child returned home from school and informed the mother that the father told him the Catholic College was “shit” and the child did not have to go if he did not want to. The mother asserts that the child broke down and informed her that the father said bad things about her all weekend, shouted loudly, got angry, and called the mother a “prostitute”, “slut”, “whore” and a “bitch”.
On 5 February 2010, the father and mother met and agreed that the child would live with the father and attend the IM class at E High School and the father would bring the child to the Upper North Shore on weekends when the mother can spend time with him. The father disputes that there was such an agreement and asserts that it was agreed the mother could spend time with the child when the child wanted to, not when the mother wanted to.
The father asserts that the mother saw the child for a few hours on 13 February 2010. The mother could not recall this.
From 15 February 2010 to 5 March 2010, the child travelled to Southeast Asia with the father.
On 8 March 2010, the child commenced school at E High School.
The mother asserts that she attempted to see the child on the weekends of

13-14 March 2010 and 20-21 March 2010 with no success. She asserts these requests were made over the telephone and that the father refused. The husband denies such requests were made.
From 26 March 2010 to 25 April 2010, the child travelled to Southeast Asia with the father.
The mother asserts that she spoke to the father on the telephone on 29 April 2010 and informed him that if he did not bring the child to see her they would have to revert to the application of the current orders.
On 3 May 2010, the mother spoke to the father on the telephone and asked to spend time with the child the following weekend and the father refused but proposed that the mother could see the child for dinner at a venue half way between their residences one evening.
On 11 May 2010, the mother had dinner with the child at McDonald’s at …. The mother asserts this was the first time the child had seen the mother since 5 February 2010.
From 21 May 2010 to 7 June 2010, the father travelled to Southeast Asia and left the child in the care of others at the southern Sydney suburb. After failing to reach agreements as to who would transport the child to the mother on the weekends that the father was in Southeast Asia, it was agreed that the child would spend one weekend with the mother if the child’s carers did the transportation to Upper North Shore.
From 22–23 May 2010, the child spent time with the mother at Upper North Shore.
On 8 June 2010, the mother sent an email to the husband indicating that she wished to revert to the Court Orders unless the father delivered the child to the mother on the weekends she wanted.
On 16 June 2010, the mother, U and L had dinner with the child.
From 28 June 2010 to 25 July 2010, the child travelled to Southeast Asia with the father. The child missed out on a week of school before the holidays and a week of school after the holidays.
From 31 July 2010 to 10 August 2010, the father travelled to Southeast Asia without the child.
On 4 August 2010, the mother asked to spend time with the child the following weekend which request the father refused.
On 11 August 2010, the mother asked to spend time with the child on his birthday, which request the father refused.
From 21–22 August 2010, the child spent time with the mother.
On 24 August 2010, the mother asserts she asked to spend time with the child the following weekend which request the father refused.
On 10 September 2010, the mother asserts she asked to spend time with the child the following weekend which request the father refused.
On 12 September 2010, the father sent an email to the mother asking her to agree to the use of the child’s education trust fund to purchase a replacement quad bike for the child.
From 17 September 2010 to 17 October 2010, the child travelled to Southeast Asia with the father. The child missed out on a week of school before the holidays and a week of school after the holidays.
On 30 October 2010, the child spent time with the mother and his siblings at Upper North Shore.
In November 2010, Mr K, the mother’s partner, moved into the property at the Upper North Shore. Mr K first met the mother in January 2006 when she consulted him in a professional capacity for advice and to act for her in relation to matters arising out of her marriage to the father.
From 12-29 November 2010, the father travelled to Southeast Asia without the child.
From 11–12 December 2010, the child spent time with the mother. The mother asserts that the child asked to see the mother and his siblings more on the weekends.
On 14 December 2010, the mother, and his brothers U and A visited the child at school before his closing ceremony. The child told the mother he did not want to have anything to do with her because she would not buy him a quad bike or let him go on a world cruise. The mother asserts that the child appeared withdrawn, spoke in a monotone with his eyes half closed and was crying and sobbing. She asserts the child hugged her tightly when it was time to return to class.
In December 2010, the mother asserts that the child’s ‘waddle’ became more pronounced. The parties exchanged emails about organising for the child to see a specialist and the father suggested that the parties attend on doctors together in the next year.
From 17 December 2010 to 31 January 2011, the child travelled to Southeast Asia with the father.

On 24 February 2011, the mother received text messages from the father informing her that he was attending on an Orthopaedic Surgeon for the child’s waddle. The mother asserts this was the first notice she had of any such appointment. The mother asserts she told the father that no matter the outcome she wanted a second opinion.
On 26 February 2011, the mother received an email from the father informing her that the child had seen a general practitioner (Dr N), a paediatrician

(Dr X) and an orthopaedic surgeon (Dr Z). The mother asserts she was never informed of these appointments in advance. The father also informed her of a further appointment with Dr Z on 15 March 2011, however was not informed of the location or time. The mother asserts she was able to contact

Dr Z’s surgery and left a message for him to call her back. She never received a call from Dr Z.
On 15 March 2011, the mother filed an initiating application for parenting orders.
On 16 March 2011, the father emailed the mother stating that Dr Z would inform her directly of the outcome of the visit and his recommendation to see Dr O or some other suitable surgeon. The mother asserts she has never spoken with or been contacted by Dr Z.
In April 2011, the father married Ms AP. He had met her approximately three years earlier in Southeast Asia. Ms AP has visited Australia in June/July 2011, August to October 2011 and on 9 November 2011.
On 23 and 24 June 2011, the child, the parents and the siblings attended upon

Dr S for assessments for the purpose of preparing a report.
On 8 August 2011, Dr S’s first report dated 1 August 2011 (“the first report”) was released to the parties.
On 13 September 2011, Orders were made by the Court providing in summary that the child and the mother attend appointments with Ms F, Clinical Psychologist; that the child spend time with the mother for two hours after each appointment with Ms F, each alternate weekend on a Sunday for four hours from 12 noon to 4.00 pm, from 4.00 pm on Christmas Eve to 4.00 pm Christmas Day; and that the mother be entitled, to the exclusion of the father, to spend time with the child from 3.00 pm to 7.00 pm whilst he is hospitalised. The purpose of the Orders was to reunite the child with the mother.
On 15 and 18 September 2011, the child attended on Ms F for sessions to be conducted on his own pursuant to Court Orders.
On 22, 26 and 29 September 2011, the child and the mother attended on

Ms F together pursuant to Court Orders.
On 2 October 2011, the child spent time with the mother and siblings at the Upper North Shore. A DVD of the child playing the piano and otherwise interacting with his siblings in his time at the Upper North Shore was annexed to the mother’s affidavit and was viewed by all parties and Dr S.
On 4 October 2011, the child was admitted into hospital for his first surgery on his hip. The mother visited the child in hospital pursuant to Orders made on

13 September 2011 on 5, 6, 7, 8, 9 and 10 October 2011.
On 13 November 2011, the child spent time with the mother and siblings at the Upper North Shore. An altercation occurred between the father and the mother’s partner at the changeover.
On 27 November 2011, the child spent time with the mother and siblings at the Upper North Shore.
On 1 December 2011, the child and the mother and father attended upon Dr S for a supplementary review and assessment.
On 11 and 24 December 2011 and 8 and 22 January 2012, the child attended at McDonalds in the southern Sydney suburb in accordance with the Orders to spend time with the mother. On all these occasions the child refused to spend time with the mother and returned home with the father.
On 22 December 2011, Dr S’s second report dated 20 December 2011was released to the parties.
On 24 January 2012, the child was admitted into hospital for his second surgery on his hip. The mother visited the child in hospital pursuant to Orders made on

13 September 2011 on 25, 26, 27, 28 and 29 January 2012.
On 19 February 2012, the child spent time with the mother, L and

Mr K at a restaurant for lunch from 12 noon to 4.00 pm.

The Issues to be Determined

Whether the current arrangements whereby the child lives with the father should continue and if not, whether the child’s current residence arrangements should change to living with the mother.
Whether the father has the capacity to encourage and facilitate a relationship between the child and his mother and siblings.
Whether the mother and siblings have the capacity to encourage and facilitate a relationship between the child and the father.
Whether equal shared parental responsibility is possible in a climate with such conflict and hostility or whether sole parental responsibility should be given to the parent with whom the child lives.
Whether the child should continue to attend E High School.
Whether travel to Southeast Asia in school holidays should continue.
Whether the father’s parenting capacity is presently compromised by his alleged “brainwashing” of the child.
Whether the mother and father should have equal shared parental responsibility with respect to medical and educational matters for the child.

Credit

The mother presented as an honest witness. She was on occasion emotional but that did not detract in the Court’s view from its assessment that her evidence was honest. The Court has come to the conclusion that where there is conflict between the evidence of the mother and that of the father and generally that the mother’s evidence is to be preferred. She made concessions against interest. She was prepared to accept that she did not always make correct decisions. She impressed as a witness of truth.
U and A, adult children of the parties, presented as truthful and mature witnesses. They both elaborated in their answers and corrected themselves voluntarily when they realised their answers were not precisely correct. They were articulate and thoughtful, had insight, and were restrained. They were most impressive witnesses.
Mr K presented as an honest witness. When asked if he made certain statements he not only denied the statements but also confirmed that he had not said anything like them or in any such terms. He was quick to acknowledge that his behaviour on one occasion of handover was less than ideal and expressed regret for it.
The father was at times non-responsive in his answers and would make speeches without directly answering the questions. He was warned on a number of occasions to listen to the questions and answer the questions directly. He did not heed the warnings.
The father also appeared at times quite rude and aggressive in his responses towards the counsel for the mother. The general impression the father gave was of someone who was justified in almost everything he did and that any suggestion otherwise was unsound. He was not impressive as a witness.

The Order Sought by Each Party

The mother seeks the following parenting orders pursuant to her Initiating Application filed on 15 March 2011:
1)That Orders 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 of the Family Court of Australia on 17 July 2008 be discharged.
2)That the wife have sole parental responsibility for [the child] including but not limited to in relation to the following matters:
(a)Religion;
(b)Health; and
(c)Schooling.
3)That the child live with the wife.
4)That the wife do all acts and things necessary to ensure that the child have telephone contact with the husband as and when the child wishes.
5)That the wife cause the child to attend for counselling on such counsellor, therapist or psychologist as Dr [S] may recommend from time to time.
6)That the husband
(a)Forthwith surrender and deliver to the wife all passports currently held by the husband relating the child and passports to be retained by the wife pending further Order of the Court; and
(b)Be and hereby is retrained from doing any act or thing to cause or permit the issue of any passport or other travel document relating to the child.
7)That the husband, his servants, and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the child’s name on the Airport Watch List.
8)Costs.
On the final day of the hearing, it was submitted by counsel on behalf of the mother that if the Court came to the conclusion that the child should live with the father the mother would not seek time with the child. It was said in support of this submission that the mother saw no future for the child free of conflict in that event, and in order to benefit the child would remove herself from the scene and thereby provide to the child at least a conflict-free environment.
The father seeks the following parenting orders pursuant to his Outline of Case document filed prior to the commencement of the hearing:
1)The child [P] born on … August 1997 live with the father.
2)The father has sole parental responsibility for the child.
3)The child have time with the mother and such time shall include:-
(a)From after school Friday to before school Monday on the second, fifth and eighth weekend of each new school term.
(b)Such other times as may be agreed in writing.
4)To give effect to Order 3 changeover shall occur at [the child’s] school. The father shall not be in attendance when he is collected and returned to the school by the mother.
5)The father is at liberty to:-
(a)Taking [the child] to [Southeast Asia] during school holidays and as such [the child] (if he is travelling to [Southeast Asia]) shall miss the last week of each school term and the first week of each new school term so as to facilitate the travel.
(b)Taking [the child] on one “world trip” prior to him attaining the age of 18 years which would involve him travelling for a whole school term which would include the school holiday period each side of the stated school term. Such time would not ever be the first or fourth school term. Such trip to not take place before
1 March 2013.
6)The father shall hold [the child’s] Passport at all times.
7)The father shall 28 days prior to any overseas trip involving [the child] will give the mother notice of the trip as to when [the child] is leaving Australia and when he will be returning to Australia.

8)The father shall be solely responsible for the payment of [the child’s] education expenses including school fees, books, sporting activities, excursions, special events and the like and shall indemnify the mother from any costs associated thereto.
9)Noted the father does not seek to obtain a child support assessment from the Child Support Agency with respect to the mother.
10)Order 16 to 24 of the Orders made by the Court on 17 July 2008 are discharged.
11)The parties do all acts and things and sign all documents necessary to close all accounts and term deposits established pursuant to the Orders and cause the funds standing to the credit thereof to be paid to the father.
12)In the alternative to Orders 8 to 11 (sic) the parties do all acts and things and sign all documents necessary to remove the mother as a signatory to the accounts and term deposits and to be removed as a Trustee of any Trust found to be settled in favour of [the child].

On the final day of the trial, the Independent Children’s Lawyer proposed, in summary, the following orders:
Parental Responsibility
1)That the father and mother have equal shared parental responsibility for making decisions about major long term issues in relation to [the child].
Education
2)That the father and mother be restrained from changing the school of [the child] from [E] High School unless by prior agreement or order of the Court.
3)Each of the mother and father are restrained from removing or taking any steps that may lead to the removal of [the child] from [E] High School prior to [the child] attaining the age of 18 years without the prior written consent of the other parent or Order of the Court.
4)That the mother and father authorise any school that [the child] attends to provide to both the mother and to the father:
(a)Copies of all reports of [the child];
(b)Copies of any school photograph orders forms; and
(c)Any written reports from any school counsellor that the school provides to parents.
5)That the father authorises all staff members at any school [the child] attends to discuss [the child’s] progress with the mother and that these orders shall be deemed as the father’s authorisation to the school to do this.
6)That each of the mother and father be at liberty to attend any school events to which parents are invited to attend provided that:
(a)In the event that the mother is invited to attend the school for any specific event:
(i)The mother shall notify the father in writing if she is to attend and
(ii)The father shall be restrained from attending on or within 100 metres of the school and
(iii)The father shall ensure that if [the child] is requested to be at the school on any such occasion that [the child] shall be in attendance.
Medical
7)That other than in emergency or other than for everyday childhood illnesses, before the first appointment for [the child] on any medical practitioner, dental practitioner or other health professional and including any counsellor (other than school counsellor):
(a)The parent making the appointment shall advise the other parent in writing of:
(i)The proposal concerning the medical, dental or other health professional treatment;
(ii)The name of the proposed health professional;
(iii)What professional information or advice the parent has received to date; and
(iv)The date of the first appointment.
(b)The parent making the appointment shall prior to the first appointment authorise the health professional to discuss any matters with the other parent;
(c)The parent making the appointment shall do all acts and things to ensure that the other parent is provided with copies of any test results, letters and any referrals that she receives from and by any health professional for [the child] within 24 hours of receipt of such material by the father; and
(d)The other parent be permitted to attend upon such appointments, such attendance or attendances to be at the sole discretion of any such health professional and such attendance may be in person or by telephone or other electronic device.
8)That during any period during which [the child] is with the father, in the event that [the child] is hospitalised or receives medical attention in an emergency, the father shall:
(a)Notify the mother as soon as practicable (in any event within two hours by telephone or text) after [the child’s] first contact with either the medical practitioner, medical centre or hospital, and also
(b)Provide the mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment of [the child].
9)That during any period during which [the child] is with the mother, in the event that [the child] is hospitalised or receives medical attention in an emergency, the mother shall:
(a)Notify the father as soon as practicable (in any event within two hours by telephone or text) after [the child’s] first contact with either the medical practitioner, medical centre or hospital, and also
(b)Provide the father with details including the details of the illness, injury, treating doctor and the prognosis and treatment of [the child].
10)That during any period during which [the child] is hospitalised the mother, the mother’s partner and [the child’s] siblings shall be permitted to attend on him in hospital during visiting hours.
11)That the father shall ensure the mother is kept informed as soon as practicable of:
(a)Any medical problems or serious illness suffered by [the child] while in the care of the father;
(b)Any medication that has been prescribed for [the child] while in the care of the father.
12)That the mother shall ensure the father is kept informed as soon as practicable of:
(a)Any medical problems or serious illness suffered by [the child] while in the care of the mother;
(b)Any medication that has been prescribed for [the child] while in the care of the mother.
13)That the mother and [the child] forthwith attend upon [Ms F], Clinical Psychologist … for the purpose of assisting in the implementation of these orders and that:
(a)[The child] continue to attend with such frequency and with or without the mother as the nominated clinical psychologist requests.
(b)The father shall cause [the child] to be made available for all appointments made by delivering him to the receptionist at the rooms of [Ms F] 10 minutes prior to the scheduled commencement of the appointment and then immediately leave those premises and not return until 10 minutes after the scheduled conclusion of the appointments and
(c)The father is restrained from having any contact with [Ms F] other than at the instigation of the psychologist.
(d)Leave be granted to forward to [Ms F] a copy of these orders, reasons for judgment and the two reports of Dr [S].
(e)That such counselling be confidential and non reportable.
Live With Time
14)That [the child] live with his mother commencing from the date of these orders as follows:
(a)During school terms from after school each alternate Friday afternoon until the commencement of school on Monday, or if Monday is not a school day then until the commencement of school on Tuesday.
(b)During Easter Holiday 2012 from after school on the last day of school until 6pm five days later.
(c)In 2012 (and in each year thereafter) if Mother’s Day falls on a weekend that [the child] would otherwise be with the father then [the child] live with the mother from after school Friday to Monday of that weekend in addition to any other period.
(d)During the June July Holidays 2012 for one week as agreed but in the absence of any agreement from after school on the last day of school until 6pm one week later.
(e)In 2012 (and in each year thereafter) if Father’s Day falls on a weekend that [the child] would not otherwise be with the father then [the child] be with the father that weekend.
(f)During the September holidays 2012 for one week as agreed but in the absence of any agreement from after school on the last day of school until 6pm one week later.
(g)During Christmas school holiday December 2012 January 2013 for one week from after school on the last day of school until 6pm one week later and for one week being 9 days prior to [the child’s] first day of school until 6pm on two days before [the child’s] first day of school in 2013.
(h)Thereafter for one half each Easter school holiday and the September October school holidays each year.
(i)For two weeks in December January school holiday period as agreed between the parties but if there is no agreement then for the last two weeks in December 2013/January 2014 school holidays and each second year and the first two weeks in December 2014/January 2015 school holidays and every alternate year.
(j)Such other times as agreed between the mother and father in writing.
(k)For the purpose of such times:
(i)The father shall ensure that [the child] is delivered to the mother’s residence at the commencement of such time.
(ii)The mother shall ensure that [the child] is delivered to [the child’s] school or to the father’s residence if it is not a school day.
(iii)The father shall not be entitled to enter the premises of the mother but shall ensure [the child] is delivered to the front gate of the mother’s residence.
(iv)The mother shall not be entitled to enter the premises of the father but shall ensure that if [the child] is to be returned to the father’s residence it shall be the entrance of the father’s [southern Sydney] property.
15)For the purpose of calculating the halfway point in any school holiday period, the holidays shall be taken to commence on the afternoon of the last day that [the child] is required to attend school of one term and 6.00 pm on the evening immediately prior to the first day that he attends school the following term. Time is calculated by the number of nights that [the child] spends with each parent.
16)That in the event that [the child] does not attend on any period with the mother (other than due to hospitalisation of [the child]) the mother shall have makeup time such period to occur during the period when the father would otherwise be entitled to take [the child] overseas and that the father be restrained from taking [the child] overseas during such periods.
17)That [the child] otherwise lives with the father.
Overseas Travel
18)That the mother and father shall do all acts and things and sign all documents necessary to renew and/or replace [the child’s] Australian passport upon the expiration of the validity of his passport pending [the child] attaining the age of 18 years.
19)That the father be restrained from taking [the child] out of Australia prior to December 2012-January 2013 and thereafter should either the father or mother seek to take [the child] out of Australia the parents agree as follows:
(a)So far as practical the occasions on which either parent takes [the child] out of Australia are to coincide with [the child’s] school holidays;
(b)The parent proposing to take [the child] out of Australia shall give the other parent as much notification as possible and in any event will not give less than six weeks written notice of such intention;
(c)The parent proposing to take [the child] out of Australia shall furnish to the other parent not less than six weeks prior to the proposed departure:
(i)An accurate itinerary to include a copy of the parent’s and [the child’s] airline tickets,
(ii)The departure date and return date,
(iii)The country or countries they will be travelling to,
(iv)The approximate date on which they will arrive and depart each country; and
(v)A contact number and address at which the parent and [the child] can be contacted in each country.
(d)On the occasions that the father proposes to take [the child] out of Australia, the mother shall release to the father within 14 days of that overseas travel [the child’s] passport for the purpose of such travel, and within 3 days upon their return the father shall return the passport to the mother for her to retain.
20)That subject to these orders including that [the child] continues to live with the mother pursuant to these orders, the father be permitted to take [the child] when he is living with the father for no more than two occasions in each calendar year commencing December 2012-January 2013.
Other Orders
21)Each parent be and is hereby restrained from removing [the child’s] permanent residential address from the Sydney Metropolitan area.
22)That the mother and father each be restrained from discussing these proceedings with [the child], within his presence or within his hearing and ensure as far as possible that no other person other than the Independent Children’s Lawyer or [Ms F] with [the child] or within his presence or within his hearing.
23)That the mother and father each be restrained from showing [the child] any of the affidavits, reasons for judgments, applications or reports prepared for the purpose of these proceedings and each be restrained from showing any material annexed or exhibited to such documents.
24)That each of the parents are restrained from criticising or speaking badly of the other parent or their family, including each parents partner and children and that this restraint be in the presence of or the hearing of [the child] and includes any written communication including electronic means of communication.
25)Both the father and mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or the other parents’ partner or family either to or in the presence of [the child].
26)The mother and father notify the other not later than seven days prior to any change to their address, landline telephone number, mobile telephone number, email address, facsimile number or postal address including the details of such new address or number.
27)That each of the mother and father are restrained from causing or permitting the issue in respect of [the child] of any passport other than an Australian passport.
28)That within one month of the date of these Orders the father pay to Legal Aid NSW the sum of $9,593.00 (GST inclusive), such monies being a contribution to the provision of an Independent Children’s Lawyer in these proceedings.
29)That within one month of the date of these Orders the mother pay to Legal Aid NSW the sum of $7,943.00 (GST inclusive), such monies being a contribution to the provision of an Independent Children’s Lawyer in these proceedings and it is noted that the mother has paid an initial contribution of $1,650.00.
30)That within one month of the date of these orders the father pay $1,760.00 to Dr [S] being the outstanding fees for the provision of her report and attendance at Court to give evidence.
31)That within one month of the date of these orders the mother pay $1,760.00 to Dr [S] being the outstanding fees for the provision of her report and attendance at Court to give evidence.

The Independent Children’s Lawyer also proposed that orders possibly be made in relation to communication; however these were not included formally as part of the minute of orders. The proposed orders are as follows:
1)Each of the mother and the father provide to the other his or her mobile and landline number so that [the child] is able to communicate with each parent.
2)That both the mother and father shall facilitate and encourage communication by [the child] with the other parent, such communication to be at all reasonable times by telephone, in writing and by other electronic means.
3)That [the child] be at liberty to telephone the parent with whom they are not living at all times and that each parent shall provide [the child] with privacy for the duration of such communications.

The Evidence

The Household Prior to Separation

It was the mother’s evidence that the father exerted total control over almost every aspect of the family’s life and referred to him as acting like a “cult leader”.
The mother asserts that the father placed restrictions on the children receiving any formal external education, such that up until 2005 none of the children attended school, save that the child J attended kindergarten for a few weeks. By that time the children were aged 20, 18, 16, 13, 11 and 8 years of age. Initially the children were educated through the Sydney Distance Education Program and then from 1994 they were home schooled.
The mother was questioned in her cross-examination as to her involvement in the home schooling, suggesting that she supported this regime and that at the time it commenced the father was working full time in the business he started in 1993. The mother admitted that she was responsible for keeping the timetable of the hours the children were taught and also was responsible for tutoring the children; however she stated that this was not her choice and that it was a lifestyle that the father imposed on them. She denied that she was happy in her marriage up until 2004.
The mother’s evidence is that she wanted the children to go to school and that she raised the matter several times with the father, however the father was opposed to this.
The mother asserts that as the children got older they objected to homeschooling and asked to go to school but the father always rejected their requests.
U asserts that the father would say to him words to the effect of:
School is for lemmings, university is for fuckwits.
If you want to learn anything, listen to me don’t go to school.
The mother also asserts that the father placed restrictions on the children and the mother having relationships with anyone outside the family unit. It is the mother’s evidence that during her marriage she only saw her four siblings once or twice, and that she saw her parents about seven times.
It is the mother’s evidence that the children never had friends over to the home and never attended the homes of other children, except on one occasion when J went to a fellow ballet pupil’s home. The mother asserts that the father would warn the children not to do anything to “break up the family” and that J declined a request from her ballet teacher to join a band for this reason.
Both U and A gave evidence that the father insisted they did not maintain friendships outside the family saying words to the effect of, “There’s no room for friends, only family” and “your friends will just stab you in the back”.
Both U and A also gave evidence that the father would threaten to throw them out of the house if they did not submit to him. U stated that as a child he found these tirades so distressing that he would cry and beg for forgiveness.
The mother asserts that the father had a tendency for inappropriate familiarity and nudity within the home, and would have a habit of being naked when he was at home, including on one occasion lying in the lounge room on a

fold-away bed with the children, and also going to the bathroom whilst J was in the shower. U gave similar evidence stating that the father would walk around the house naked and would ask the mother and his sisters to inspect his testicles for testicular cancer. A also gave evidence that the father would walk around the house naked.
It is the mother’s evidence that the father would insist on making the children take their clothes off as a group and measuring and weighing them. The mother asserts this was particularly degrading and humiliating once the older children reached puberty. Both U and A gave similar evidence.
The mother asserts that the father would talk about their sex life to the children saying such things as, “Your mother wants to leave the marital bed. She says she can’t be loving and affectionate to her husband anymore. I am a very sexual and sensual human being and I need my sex”. This evidence is supported by both U and A.
It is the mother’s evidence that the father also propagated his own religion “[US]” and extreme political views, and would often gather the children around for lengthy discussions which went for hours about his religion. The mother asserts he said such things as:
Jews control everything.
Police will get you because they are part of the Government.
The Courts are all controlled by Jews because all judges are appointed by high-ranking Jews.
The government is your enemy.
Both U and A gave evidence that the father would lecture them about his religion and would say to them words to the effect, “I can heal people with my bare hands” and “I can put curses on people”. U and A found these concepts confusing and difficult to accept as they got older.
It is the mother’s evidence that he would destroy any self-confidence or independent will in herself and the children. An example of this was the father instigating ‘Family Conferences’ in late 1980 which were initially to organise and plan holidays and events. The mother asserts that these turned into ways to brainwash the family, and the father would insult anyone that disagreed with him or did not respond the way he wanted. U’s evidence is that the father usually convened these meetings when someone had been disobedient and would say that that person, “needed to be put back in his/her fucking box”.
The mother worked as a sex worker for about 12 months when she was

20 years of age and then was a mistress of a professional man for a further 6 to 8 months.
It is the mother’s evidence that the father would use this history against her and say words to the effect, “I am going to tell the children you are a prostitute”. The mother also asserts that the father would say to the children, “There are things about your mother you don’t know” and, “One day you will learn the truth about your mother”. The mother asserts she lived in fear that the father would tell the children that she worked as a prostitute and that she immediately became compliant when he said such things to her and the children.
The mother also asserts that the father was violent and made threats of violence. She states that when they first separated the father said that he would have her shot dead if she tried to get more money. She also asserts that he had thrown chairs, papers and CDs several times.
It was U’s evidence that he recalls from an early age being subjected to a lifestyle of irrational, aggressive, vindictive and intimidating conduct from the father. His evidence is that the father was constantly degrading, hateful, angry and dissatisfied towards the mother, himself and his siblings. His evidence is that whilst there may be times when he smiled and laughed, he did not consider his childhood to be a happy one.
U was 18 years of age when the parties ceased living together in December 2005. He deposes that since this time he has had no contact with the father; that the father has not attempted to contact him directly and he has not attempted to contact the father.
A was 14 years of age when the parties ceased living together in December 2005. A has had no contact with the father and he has not attempted to contact him. His evidence is that save for a short email sent via the mother, the father has not attempted to contact him.
A’s evidence was that his memories of life with the father are mostly unpleasant, and that the father was abusive and degrading, calling the mother “bitch”, “whore” and “useless”. He also asserts that the father would often say to him words to the effect of, “You will never amount to anything unless you stick with me”, “If you defy me I will cut you out”, “useless idiot”, “fuckwit”, “stupid”, and “You’re a fucking poofter”.
A’s evidence was that growing up he was fearful that the father would throw him out of the house and frequently the father said words to the effect, “If you try and tear down our family unit I will cut you out like I did my brother and sister”, “you are here by invitation”, and “If you defy me you’ll be hammering in the six inch nails in the door to this house”.
The father used photos of the family from when they were younger to attempt to demonstrate that the household and the children’s upbringing was a happy one. These photos became Exhibits 8 and 14 and were shown to U in his cross-examination. U stated that whilst he may have smiled and laughed, he was not necessarily happy during his childhood at all.
The mother asserts that following separation each of the children, apart from V and P, were deeply depressed. J attended on a psychiatrist and A and U a clinical psychologist.
In her first report, Dr S states that the children all knew that they would be totally rejected by the father without recourse and were prepared but also traumatised by this following separation. She stated that they all discussed how miserable they were as children because of their social isolation, lack of friends, education and normal opportunities that this brings. She stated that they felt damaged as individuals particularly in the domain of relationships due to their childhood experiences. She stated that they were desperate that the child P not suffer similarly.

The Father’s Perpetuation of Conflict

The quad bike issue

On 12 September 2010, the father sent the mother an email informing her that the child’s quad bike had been stolen. The father asked the mother to agree to purchase a new quad bike for the child from the child’s educational trust fund. The mother did not respond to this email.
On 22 October 2010, the mother received an email from the father which, amongst other things, raised the issue of the quad bike again and also the proposal to take the child on a four-month world cruise. The mother responded to this email indicating she did not agree to use the child’s trust fund to pay for the quad bike and that she felt uncomfortable about a four-month cruise. The mother’s evidence is that there followed a relentless campaign by the father to force her to change her mind on these issues. She asserts that the father sent her emails in October, November and December stating such things as:
If you truly will stand against me on this it will only be reflected in [the child’s] determination to live his own life without having great opportunities ripped from him. (Email dated 22 October 2010)
[The child] has expressly told me in the past & again yesterday (and he tells me he told you too yesterday) that he thinks you are “fucking up his life” and will “walk away from you” as a result of these unnecessary denials of his happiness (bike and round the world tour).
(Email dated

31 October 2010)
… HE HAS HIS money available to buy this bike (his trust) and he is not asking you for a single dollar. He wants to spend HIS MONEY (Email dated 31 October 2010)
… I have told him the TRUTH that you are stopping him having it bought from his own trust money… (Email dated 1 November 2010)
… Your comments about the bike are totally wrong, and in addition, destructive for [the child]. We both see it that way.
(Email dated

7 December 2010)
On 12 December 2010, when the father collected the child from the mother, the mother asserts that the following conversation took place whilst the child was in the father’s car with the door open:
F: What are we going to do about this Quad Bike?
M: I do not want to discuss that.
F: Are you going to deny this boy his happiness?
M: I don’t want to talk about this in front of [the child]. He has had a nice weekend. [The child] said he wants to come over again before he goes away on the 17 December. He also said he wants me to come to the school for the end of year ceremony. We’ll discuss it via emails. Let’s leave it at that for now.
F: You fucking bitch.
The mother asserts that whilst she was walking away towards the other children the father wound the child’s window down and yelled, “You’re destroying his life. You’re a fucking bitch.”
The Court finds the father’s conduct totally inappropriate and lacking in any reasonable understanding of the need for the child to be separated from disputes between those whom he loves and who love him. It seems that the father had no understanding of the potential effect on the child of this open disputation between the parents.
Dr S stated that the father used this incident as a way of making the mother appear mean to the child, when he clearly could have afforded to buy the child a new bike from his own funds. The Court agrees that the father sought to demean the mother in the child’s eyes with this behaviour.

The father’s behaviour at the hospital

The Orders of 13 September 2011 provided that the mother was entitled to visit the child during any hospitalisation to the exclusion of the father from 3.00 pm to 7.00 pm. In the event that the mother would not be spending time with the child during any or part of this period of time she was required to notify the father. There were no orders preventing the mother from bringing along any of the siblings or her partner to these visits.
The child had his first operation on 4 October 2011.
The father asserts that on the morning of the operation he sent the mother a text message advising her that the operation was scheduled for 11.00 am and that he would be in the ward by 7.00 pm and that she could visit him from 7.00 pm – 8.00 pm.
The father asserts that the admission staff informed him that they did not have the mother’s consent for the operation and that the child was present during this conversation. It is the father’s evidence that the child became visibly distressed and was already anxious about the surgery.
The father called the mother and he advised her that the hospital did not have the mother’s consent for the operation.
The mother had personally contacted Dr O’s office on 16 September 2011 and informed him of her consent via email for the surgery. The mother then spoke to a nurse at the hospital and told her that she had provided her consent. The father asserts that when he spoke to the mother on the telephone that she swore at him and said that he was just making trouble and hung up.
The Progress/Clinical Notes from the Hospital were produced under subpoena. The notes for the period 4 to 11 October 2011, being the child’s first hospitalisation period, became Exhibit 19.
The Progress/Clinical Notes for 9.15 am that morning indicate that a member of the nursing staff had made the father aware that he or she had spoken to

Dr O and he had confirmed that he had all the legal documents in emails which confirmed consent from the mother. The father denied that he was told this by the nursing staff, and denied that he knew the hospital had the mother’s consent prior to contacting his lawyers about the issue. The Court does not accept these denials are accurate.
Exhibit 19 also states that the father was angry and started talking about there being a seven year legal matter regarding custody. The father admitted to being angry.
After the father’s lawyers had contacted the mother’s lawyers about the consent issue the mother telephoned the father at approximately 9.29 am and told him again that she had already provided her consent and that her lawyers were resending the email. The father told her that she had upset the child and so she spoke to him on the phone and told him that everything would be alright and that the hospital was trying to find a piece of paper. After this the mother asserts the father came back on the phone and was yelling at her saying words to the effect:
You are a liar. You haven’t given consent.
I am going to get an urgent Duty Judge.
[Mother’s name] what have you done to this little boy.
The father admitted he may have said he would get a duty judge, but denied yelling at the mother and calling her a liar. The Court accepts the mother’s version of the conversation.
It is the mother’s evidence that she was very distressed and was worried about how the situation was affecting the child so she telephoned the father back and said words to the effect, “I have given my consent. Stop this pretence in front of [the child]” and then he hung up on her.
At 9.46 am the mother asserts that she telephoned the father and told him that her lawyers had sent an email to Dr O and his lawyers and that if it was not enough she would come into the hospital to sign whatever was needed.
The mother asserts that the father sent her a text message at 10.15 am stating that the hospital had received her consent.
The father asserts that the mother telephoned him at 9.29 am, 9.32 am, 9.46 am and 9.52 am. The father asserts that in the first call the mother criticised him for involving the lawyers and that he was causing trouble. The father asserts that when the mother spoke to the child on the telephone at 9.32 am he could hear her saying to him, “Your father is filling you up with hate. There’s no problem. It’s just all your father”. The father asserts that the third and fourth calls were abusive and critical of him and that she again accused him of causing trouble.
It was put to the father that it was not the mother causing upset and distress to the child, that it was actually him because of his behaviour at the hospital. The father denied this. The father asserts that the child was present when the nurse told him they did not have the consent from the mother and that he became anxious and distressed. He stated that there was no private room to discuss this matter in private away from the child, and conceded that he did not try to take the conversation away from the child’s hearing or presence.
The father denied that he was told by the nursing staff to stop shouting and swearing and denies that he was spoken to about his behaviour.
It is the mother’s evidence that when she visited the child on 5 October 2011, the child said to her, “The nurses had to tell Dad to stop shouting and swearing yesterday. They told him he would have to go outside if he kept shouting and swearing. I was very scared. He kept shouting: ‘She’s a psychopathic cheating liar’. He was talking about you mum. I was very scared.”
The father admitted he may have called the mother a “cheating liar” but denied calling her “psychopathic” and denied that the nursing staff told him to stop shouting and swearing. The father also denied that the child would have been scared because of his behaviour, and that this may have just been the child’s interpretation of events.
The Court accepts the mother’s version of these events and once again notes the father’s apparent ignorance and insensitivity to the need to not involve the child in such disagreement and denigration of his mother.
As the child’s operation did not finish until later than expected the mother was not able to see the child that evening.
The father’s evidence is that the child’s operation finished at approximately

6.00 pm and that he was still unconscious at 7.00 pm and sent the mother a text message advising her of this. The father asserts that the mother had sent him a text message at 7.15 pm saying that she was coming to the hospital to see the child. It is the father’s evidence that he replied telling her that he was not leaving, that the child wanted to see him after the operation and for her to look at the Court Orders, and if she was happy to wait he would accommodate her. The father then states that the mother sent him a text message stating that the child would be happy to see both of his parents, that she would be exercising her rights under the Court Orders and that she would be there in ten minutes. The father asserts that he had resolved to remain with the child until he awoke and as he was concerned about a confrontation with the mother he alerted the recovery staff and requested that security be present.

The father’s evidence is that the child awoke at approximately 8.00 pm and that he was still in the recovery ward at this time. He asserts that he told the child that the mother was there and asked if he wanted to see her, to which the child responded no. The father also asserts that the child told the head nurse that he did not want to see the mother. The child was then transferred to the ward.
The Progress/Clinical Notes for 5 October 2011 at 4.30 am contained in

Exhibit 19 suggest that when the child was in recovery at 7.30 pm the previous night that the father was very abrupt and aggressive towards the nursing staff in regard to the mother visiting. The notes state that the father’s wish was for the mother not to visit otherwise he would “enforce” his “court order” and that he would “physically remove her” and “throw her out”. The notes indicate that the nursing staff discussed with him that if there was any aggression from the father or mother that security would escort them both off campus of the hospital and also discussed the need to concentrate on the child’s health and recovery and that there should be no discussions about parenting disputes in front of the child. The father admitted to being abrupt but not aggressive, and asserts he asked security to physically remove the mother if she breached the court orders. He stated that this was not inappropriate as the mother had threatened to breach the orders. The father’s attitude and conduct again betokens an ignorance of the needs of this child.
The mother visited the child on 5 October 2011 and there was no disruption.
On 6 October 2011, the mother received a text message from the father asking what time she would be visiting the child that day. The mother responded that she would be attending in accordance with the orders. The father asserted that the orders specified that the mother was to give notice, and the mother asked what order he was referring to.
What ensued was a series of text messages which the mother asserts were abusive and aggressive. The father admitted in cross-examination that it was an unpleasant text exchange. He asserts he asked the mother because the child had told him to ask the mother what time she would be attending that day. The father asserts that the mother “launched” into him after he asked politely what time she was coming. It is the Court’s view that the father was well aware that the mother would be attending at 3.00 pm unless he was notified otherwise and that his conduct was unreasonable and calculated to cause conflict.
On 6 October 2011, the mother visited the child from 3.00 pm to 7.00 pm. A visited the child after university and they played music together on the iPad. Mr K also visited after work. The mother asserts that the child seemed relaxed and smiled the whole time. She also states that the child shook

Mr K’s hand when he arrived and when he left.
On 7 October 2011, the mother visited the child together with V from 3.00 pm to 7.00 pm. She asserts that the visit went well and that V and the child played “silly photos” on the iPad and games on the Nintendo together.
The mother gave the child a card from Mr K’s children wishing him well and the child asked the mother to put it on the wall opposite him so he could see it.

Mr K and his daughter also visited that afternoon for about 15 minutes and the child thanked Mr K’s daughter for the card. The mother asserts that they all chatted and laughed together.
On 8 October 2011, the father asserts that the child told him that he dreamt that the mother and U were kidnapping him and hurting him and that

Mr K kidnapped him with the mother. The father asserts that the child told the nurse about his dream during the night, and that the child told him that he was frightened about Mr K and did not want to see him again and that he told the nurse this. The father asserts that the hospital staff told the child that all visitors would be stopped and the child asked if he wanted to see them, other than his mother, as per the Orders.
There appears to be no hospital record of the child reporting a bad dream. If there was one it seems probable that it was a reflection of what the father had said to the child, a child who would have been suffering ongoing stress at the time.
On 8 October 2011, the mother received a text message from the father which in part stated as follows:
[The child] well knows [Mr K’s] roles as both lawyer and de facto in the court cases you have mounted against his stated wishes and finds him and his daughters a disturbing presence during his post operation recovery in hospital. He had nightmares last night about this and told the nursing staff of his fears. [The child] has requested me and the hospital staff to not let him or his children see him in hospital anymore…The hospital have a copy of the orders and I have alerted hospital security…
It was put to the father in cross-examination that the Progress/Clinical Notes from the Hospital, Exhibit 19, did not contain anything about the child having a nightmare on the night of 7 October 2011. In fact the note from 8 October 2011, 6.30 pm indicates that the child had not voiced any concern regarding the visit the previous day with the mother and Mr K.
In Exhibit 19, the Progress/Clinical Notes of 9 October 2011 at 3.00 pm indicate that the father had approached the nurse’s desk on Saturday, 8 October 2011 and advised the nurse that the child had been having dreams/nightmares about his mother and her partner visiting him in hospital. The notes stated that the father said he did not want Mr K to visit and advised he would take action in the form of calling police or security if need be.
The notes say that the father was advised that if the child was distressed in any way that the nurses would suggest that visitors step out and give the child some time alone.
On 9 October 2011, the father approached the nurse’s desk to express his concerns again about Mr K visiting. The nursing staff advised the father that as a Registered Nurse they have no right to call security at a parent’s request with no risk of harm, injury or otherwise. The nursing staff advised the father that they had no right to remove a certain person and that they cannot call the police. The notes state that the father said he would call the police if

Mr K visited the hospital. The notes also state that the father said he did not want visiting the child “the people that kidnapped him and held knives to his throat”. There is not an iota of credible evidence to support the statement made by him.
The father’s evidence was that he could not recall making the comment to nursing staff about the kidnapping and knives in those words. He also denied that the nursing staff told him that they would ask visitors to leave the child’s room if he became distressed, and denied that the nursing staff told him that they could not call security at a parent’s request. The Court does not accept this evidence as accurate.
In addition, the nursing notes on 9 October 2011 at 3.00 pm indicate that after the father told the nursing staff that he did not want the mother to visit but he had no choice because of the Court orders, that at that point he appeared to prompt the child to state, “He will have his mother visit but does not want to see [Mr K] (his mother’s partner) or his children”.
The mother visited the child on 8 October 2011. She asserts that she spoke to the nurse at the desk on the child’s ward who told her that the child had a bad dream which is not unusual being in hospital recovering from surgery.
The nurse also told the mother that the father had made complaints about

Mr K, but that the child had not mentioned anything. The mother also states that she spoke to the nurse on duty who told her that the mother was welcome to bring whomever she wished and that the child had not said anything to her or any other nurses, it was just the father saying these things.
The Progress/Clinical Notes on 8 October 2011 at 6.50 pm state that the child had informed the nurse that he was happy for Mr K and his family to attend the hospital during his stay.
The mother asserts that on her visit to the child on 8 October 2011, the child looked worried and was frowning. She asserts that they had a conversation where the child told her that he liked Mr K, that he missed her and his brothers and sisters, he missed home and missed the lunches and dinners.
The mother also says that the child told her that the father said to him that

Mr K wants to kidnap him and that the father took down the card that

Mr K’s daughters had given him. The child also stated that the father got angry when he saw the card from Mr K’s daughters and that is when he sent the mother the text message. The child also said to the mother that he didn’t really mean to say that he didn’t want Mr K to visit and that is not really how he feels about Mr K but that he had to say it; that the father wants him to say it.
The child made various other comments to the mother about the father wanting him to tell him everything, that the father tells him he is stabbing him in the back when he hugs and kisses the mother, that the father said he is happy that all the child’s brothers and sisters are gone because he hates them and does not want anything to do with them, and that the father says that he is not like the mother who is stopping the child from doing everything he wants like going on the world cruise and not allowing him to have his bike or dog. The mother asserts that the child was crying when he made these comments and that she just held him and listened to him and did not say anything back to him. The father denied that he had said any of these things to the child.
The father asserts that after the mother’s visit on 8 October 2011, the child told him he had said to the mother that he would never go back to live at the Upper North Shore and asked her to accept that and let him get on with his life. He also asserts that the child said, “She told me that it was [father’s name] who was stopping me going overseas and not her. I told her that was a lie. It’s your court case, not dad’s and its you who put me on the watchlist and you could end this case tomorrow if you wanted to”.
On 9 October 2011, the father asserts that the child told him that he was upset about what the mother had told him the previous day and that the child asked the nurses to make sure Mr K did not come to see him. The father sent the mother another text message that day stating as follows and in the following form:
[The child] remains very disturbed by the presence of visitors he does not want. He accepts your presence because of the court order but remains never wanting to see [Mr K] or his family despite you berating him yesterday about that. He has told 3 assembled nursing staff this morning who assured him of his rights to see who he wants. They have again told security and police will be called if [Mr K] does not respect his wishes. I ask you to respect [the child’s] rights. I will, and will file for an avo if his rights are further breached or threatened if necessay (sic). [Mr Bass]”
It was highlighted in the father’s cross-examination that there were no nursing notes of the child talking to three assembled nurses about visitors and of them assuring the child’s rights. It was suggested to the father that if this incident took place it would have been in the nursing notes. The father stated that he does not know the protocols for the hospital to write things down but that this certainly took place at the child’s request.
On 9 October 2011, the mother visited the child and asserts she was advised by one of the nurses that looked after the child, that as far as the hospital was concerned the mother could have anyone with her during the hours that she visits the child and that the child has made no complaints to the nursing staff, and that they had not alerted security.
The mother deposes that the child again looked worried when she visited him on 9 October 2011. It is her evidence that the child told her words to the effect:
[Father’s name] says he wants [Mr K] arrested. [Father’s name] says [Mr K] is standing over me and bullying me. [Father’s name] wants me to say bad things about [Mr K] to everyone. I want [father’s name] to be proud of me. [Father’s name] likes it when I say that I don’t want to see [Mr K], [father’s name] said if [Mr K’s] two daughters come in he’ll have the two daughters taken away and he will have [Mr K] taken to the police station and get the police on him.
[Father’s name] says [Mr K] was going to kidnap me and that [Mr K] is doing the court case. [Father’s name] keeps telling me that [Mr K] is writing all the papers to have me taken away from you.
The mother’s evidence is that after she comforted the child and reassured him that Mr K was not her lawyer, he appeared relieved and the child called the nurse in and told her that he would like to let Mr K into the hospital. The mother then notified Mr K by text message that the child wanted him to visit. This evidence is supported by Exhibit 19 at Progress/Clinical Notes on 9 October 2011 at 5.15 pm.
Later during the visit Mr K and his daughters visited the child. The mother asserts that the child appeared relaxed the entire time and spoke with Mr K with ease. After Mr K left he sent the child an email of a computer-drawn flower drawn by Mr K’s daughters and the child replied thanking him for the picture of the flower and thanking him for visiting him.
On 9 October 2011, the child also talked to L on Skype. He also sent J a message on facebook apologising for writing her a message on 13 July 2011 on facebook which said, “fuck you bitch you destroyed my fathers life and mine fuck you and fuck you all at [Upper North Shore]”. On that same visit the mother also gave the child a card which V made for him. The mother asserts that the child hid the card in the pages of an electronic games magazine and then asked the mother to take it with her and keep it in his bedroom because the father would get angry if he saw it.
On 10 October 2011, the mother visited the child from 3.00 pm to 7.00 pm. She asserts that the child told her that he did not tell the father that Mr K visited him the previous day so that the father would not get angry. He also told the mother that he told the father he did not want to talk about the court case anymore because it made everyone upset. She also asserts that the child said he wanted to go to the Upper North Shore very soon and when she was leaving he asked when he could see her again.
J also visited the child on 10 October 2011, and the mother asserts that they hugged each other and that the child was smiling.
It was put to the father in cross-examination that the mother had visited the child every night that he was in hospital and that Mr K and the siblings had visited the child on several occasions, and that there were no reports made by the nursing staff to him of any disturbances or difficulties during these visits. The father accepted that apart from the dreams there were no difficulties reported by the child to the nursing staff.
The child was discharged from hospital on 11 October 2011. Exhibit 19 indicates that on this day the father was spoken to by one of the nurses about being inappropriately dressed on the ward and was asked to wear clothes at all times while on the ward. The father admitted in his cross-examination that one night he had slept in his underwear by the child’s bedside because it was a hot night. The father was also spoken to about there being a rule that only one parent is allowed to stay on the ward. It is the case that both the father and his wife Ms AP were staying on the ward. The father was noted to become defensive and said that the reason for staying overnight was because the child had nightmares. The father was warned that on the child’s next admission for his second operation that only one parent was allowed to stay on the ward.
The father relied on evidence from his current wife Ms AP, who asserts that on a number of occasions whilst he was in hospital the child said to her that he would rather not have his mother come to the hospital to visit him with her boyfriend. The Court notes that Ms AP admitted in her evidence that she speaks and understands only limited English, and the child speaks and understands only limited language of the Southeast Asian country. It is questionable how much of a conversation the child and Ms AP are able to have. It seems more probable than not however that the child’s alleged statements, if made, would have reflected what the father would be seen to be pleased to hear.
On the child’s second admission to hospital in January 2012 for his second operation, the father was again aggressive towards hospital staff. The Progress/Clinical Notes for 30 January 2012 at 4.30 pm became Exhibit 24. It is the father’s evidence that the child had been cleared for discharge in the morning. These notes state that the father became very aggressive when the physiotherapist came to reassess the child for discharge. The father denies that he became aggressive. The notes indicate that the mother was due to arrive at

3.00 pm and that the father said that he would be leaving and taking the child with him or else he would have to leave him for two weeks due to the impending court case. The father admitted that regrettably he had said this.
The notes go on to state that the father appeared very concerned about the mother arriving and stated there would be a confrontation. The father admitted to saying that he wanted to avoid any confrontation.
The father’s evidence was that the physiotherapist wanted to keep the child in the hospital so that the mother could be shown how he should be nursed and with his mobilisation. The father stated that he told the physiotherapist that the mother only spends time with the child at certain times and told the physiotherapist that they were leaving. Exhibit 19 states that the father continued to be aggressive towards the staff at this time and stated that he would be going home regardless and then the child was discharged at 3.45 pm.
The father was questioned in cross-examination what could possibly be wrong with the physiotherapist wanting to discuss the child’s mobilisation and nursing with the mother. The father admitted there was nothing wrong with this; however he stated that the child had already been discharged and the physiotherapist was trying to hold that up for a reason that was quite spurious. The Court finds the father’s reluctance to permit the mother to spend time with the child more probably than not an expression of his distress at the possibility of a demonstration of a warm and loving relationship between the child and his mother.

The child’s schooling

The mother asserts that the father wanted to change the child’s primary schooling in 2008 following the making of the Consent Orders. Order 11.1 of the Orders required the child to continue to attend Y Public School until the end of 2009.
Order 12 of the Consent Orders required the mother and father to investigate facilities for special programs for the child at a list of ten private high schools and enrol the child in the first one which had the facilities and accepted the child. Failing these schools, the child was to be enrolled in a public school that had extra facilities to suit the child and which was geographically close to the midpoint of the respective residences of the mother and father.
The mother asserts that she believed the father would be in a position to comply with the Orders because he planned to live at his residence in the city when the child was in his care.
The mother asserts that on 1 August 2008, the father sent the mother an email asking her to reconsider Y Public School so that he could live at his southern Sydney suburb property when the child was in his care. The mother disagreed with any changes to the child’s schooling as he was doing well at the school and had many friends there.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Dr S concluded in her report that the child has shown himself to be flexible. Whilst in hospital he had increasing contact and apparently enjoying it. She stated that his anxiety stems from seeing his father, Mr K and his mother in open conflict, which is a situational anxiety that he has been suffering from.
The Court finds that the child must be removed from the conflict which the Court finds is predominantly created and nurtured or provoked by the father.
Dr S stated that if the Court was to find that residence should be changed to the mother, she believes the child would transfer quite easily as the more frequent contact with the mother has been easy and happy for him. She also said that he would be tolerable to such change as he is ambivalent; he loves both of his parents but only says he loves one of them because otherwise he knows he is going to upset his father.
It was Mr JD’s evidence that he thinks the likely effect on the child if he was required to change schools would be detrimental. He stated that high school students generally do not like moving schools because it is quite traumatic for them. He said that in the child’s case, because he has an intellectual disability, it means that he has a bit more difficulty learning new information, retaining new information and so it makes it a bit more problematic for him.
Dr S’s evidence was that it would upset the child to change schools and to move away from the father. However, she stated that changing schools would not be as difficult for him as he is still in contact with two children he attended Y Public School with who now attend D High School. She also stated that while usual Year 9 students hate losing their peer group at school, such loss of peer group would not be as significant for the child given his emotional age of an 8 to 10 year old. She stated that the child is rather flexible for a boy with intellectual disability. The Court finds that whilst a change of school is not entirely desirable, there are factors which in this case outweigh any detriment which might otherwise attend on there being no change. It will involve for the child an opportunity, by reason of the close proximity of the school to his mother’s home, of more time at home with his mother and with his siblings.
Dr S stated that at D High School he would likely have a very similar kind of teaching and just as devoted teachers. Dr S stated that there was no reason for her to think that he would not switch to the other school rather quickly. She stated that it would be a shame for him to change schools halfway through; however he is much more flexible than a lot of children with intellectual disability, which she said is in his favour.
Dr S stated that the child is ambivalent emotionally. However, as stated above, he fits right in with the mother and siblings, just like a piece to a jigsaw puzzle, and she believes he would get used to the situation rapidly.
Dr S stated that if residence was to change to the mother then he would need to spend uninterrupted time with the mother and siblings for at least a few months, without contact with the father, in order to change his opinion and accept his family through his own experiences. The Court does not propose to order that there should be any contact with the father.
Dr S stated that it would be more detrimental to the child if the mother continued to refuse contact with the father, as he loves him unconditionally and idolises him. She stated that not seeing the father would be a major difficulty for the child. She stated that the mother would need to encourage weekend contact with the father after approximately six months so that the child could still see the father. The Court does not believe that this father can change his attitudes and behaviour and that any contact with him, even contact by telephone, is likely to lead to the child being again surrounded by turmoil and conflict which on past behaviour the father would directly involve the child in.
Dr S also stated that if residence were to change to the mother then the members of the mother’s household need to take turns having “[P] time” as he is used to the one-to-one attention he has been receiving from the father, which is not always available in the mother’s household.
In her oral evidence Dr S stated that if residence were to change to the mother that at first the child would feel betrayed by the Court. He would feel very disappointed and sad, and possibly sad for a long time missing his father. She stated however that having seen how he behaves with the mother, it is very clear to her that there is a lot of love, understanding and nurturance possible in the mother’s residence, and she thinks that the father is not the only one who can provide that. She stated that if the child were to live with the mother for an uninterrupted period of months then he would be able to resume the feeling of “I can get nurturance from these people. They are genuine”.
Dr S did say that given the child’s knowledge of the mother’s application, if residence were to change to the mother then the child could possibly feel that his father was right all along because the father told him that the mother was going to do this “and kidnap me again”. Dr S stated however that this is not a matter that causes her concern regarding the child’s ability to maintain a relationship with his mother and his siblings, because he needs the experience of being with his mother to get the feeling that she is genuine again.
In Dr S’s second report she stated that at the second assessment the child had not visited Southeast Asia for nearly twelve months and that he had not suffered from not going there. She stated that it did not seem to affect him significantly except he no longer talked at length about the elephants, but rather his school friends, which is more appropriate. She stated he had also changed his request to a wish for a cruise now.

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

The main practical difficulty with the child spending time between both parents is not just the distance between southern Sydney and the Upper North Shore, it is the acrimonious relationship between the father and the mother, and the lack of effective and harmonious communication between them and the inability of the father to remove the child from the arena of conflict and his continuing attempts it seems to make him feeling guilty about displaying affection for his mother.
Communication with the father is likely to create a context within which the father can continue to expose the child to the conflict and his views of the mother and the siblings. The evidence suggests that the child’s telephone communication with the father prior to February 2010 was a way in which the father could instil in the child’s mind the views held by the father about the mother and the siblings. It is for such reasons that the Court proposes that there be no communication between the father and the child as this would not be in his best interests.

(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

Dr S concluded that the father has Narcissistic Personality Disorder. She stated that he has a pattern of grandiosity, lack of empathy, sense of entitlement and haughty behaviour that allowed him to believe that he could educate his children better than an established institution.
When challenged about this finding in cross-examination by the father,

Dr S confirmed her view and stated that she uses her own checklists when diagnosing people with such disorders. She stated that the father thought that he was special and unique. She stated that it is a way of interacting with human beings, and that it is clear that the way the father interacts with other human beings is not normal. She stated that it is over-balanced towards this narcissistic way of doing things and that there was a lot of evidence supporting the diagnosis, without analysing every little detail.
In her first report Dr S stated that the father had no insight into the emotional distress that he had caused his children over the years and took no responsibility for their behaviour. This conclusion is born out by the evidence taken as a whole.
Dr S stated in her report that the father had inculcated a belief in the child that his mother’s love was contingent on allowing him to travel the world whenever his father wanted to and that the fact that the mother had continued the travel ban must necessarily mean that she does not love the child. To, in effect, teach a child that his mother’s love of him is contingent or for sale is not only cruel but is to teach him a false set of values.
There was evidence that the father had continued to discuss Court issues with the child and had shown him the mother’s application of 15 March 2011. The father asserts that after the mother filed her initiating application on 25 March 2011 and had the child’s name placed on the Airport Watch List that he told the child that he was not able to take him to Southeast Asia in the April school holidays for those reasons. It was Dr S’s opinion that this was highly inappropriate and that Court proceedings should not be discussed with children, and that there is no benefit in discussing any Court matters with children. She stated that in the ideal world the child should be told that the situation is beyond the parent’s control and the Court has dictated the result. The father’s case was that the mother had lied to the child by saying she wanted him to go to Southeast Asia and was not stopping him, and that he needed to show the child what the truth was and what the mother was really seeking at Court. This in the Court’s view is inappropriate and is not in any way providing for the child’s emotional needs. It beggars belief, even if the father had a basis for believing the child had been deceived, that he would so involve the child in the dispute.
Dr S reported that the child had said to her at the assessment on 1 December 2011 that “last time you believed what [mother’s name] said and Dad said you didn’t like him much” and “I’ve been on my nerves thinking about the court thing. It’s too much pressure on me”.
What is also concerning is that when the mother refused to allow the father to use money from the child’s trust fund to purchase a quad bike, or when she refused to allow the child to go on a four-month world cruise, the father told the child that the mother did not want him to have these things. The father’s evidence is that after being told this the child did not want to see the mother anymore. It seems to the Court that this response if made, as with many of the child’s responses to the father, are made in a context of a certain belief of the child that it is a response that the father wants to hear and that it will please him.
This behaviour of the father is not indicative of good parenting or having the capacity to appropriately address the child’s emotional needs. If anything it appears to be more of a manipulation of the child.
Dr S stated in her report that the father’s development of a domicile for the child on the far south coast seemed utterly inappropriate but furthers his unconscious wish to cut the mother out of the child’s life completely. The Court does not necessarily take the view having regard to the whole of the evidence that this wish is formed only unconsciously. She stated that it was utterly inappropriate to allocate the child’s later life to the care of strangers when he has a large extended family who wants to see him. The Court cannot but agree.
Dr S stated in her report that the mother has to divide her attention between the other children and her partner and only has the child’s undivided attention in the car driving to her home or at the hospital. Dr S stated that unfortunately the mother could not resist attempting some brainwashing which made the child angry and it backfired on her. Whilst not excusing it, it was no doubt the end of a long period of time in which she was being subjected to the same behaviour of the father. However the father has magnified the importance of this and continued to demonise the mother in the child’s eyes.
Dr S stated that the mother fits the criterion for Dependent Personality Traits with a need to be taken care of and allowing others to take responsibility for the direction of her life. She stated that it appears as though she was kept in the position of a dependent child in the family and had no more power than the children, apart from possible use of seduction to get what she wanted from the father. Dr S stated that the mother’s self-esteem has improved greatly since separation, and that she has begun a new relationship and university course. She does not now strike the Court other than as a determined, energetic, independently thinking, and focussed person.
With respect to the father’s alleged insistence on having the child’s second operation prior to the commencement of these Court proceedings, as evidenced in Exhibit 19, Dr S stated that this highlights the father’s personality style, which is to do things using other people. She stated that he does not intentionally exploit the child, but that in her opinion, after having observed the child at the assessment on 1 December 2011, there was no reason to hurry the second operation. She stated that it was her opinion that the father had sped up the course of the two operations irrespective of the medical advice.

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

The child is a 14 year old with a mild intellectual disability. He has the emotional age of an 8 to 10 year old and an IQ in the range of 55-75.
The child attends E High School and is in an IM Class. The class comprises of between 12 to 18 children, all of whom have mild intellectual disability and are spread between Years 7 to 9. The school has a specialised support unit which has its own classroom and office complex. The child has different teachers for different subjects, and the teaching is undertaken in the context of the IM Class with a syllabus modified for the abilities of each student. The syllabus revolves around life skills such as using public transport, shopping and cooking. There is also basic writing, reading and mathematics.
It was Ms H’s evidence that whilst she is not familiar with the IM class at D High School, the IM classes would be standardised with regard to the curriculum. She stated it was not safe to assume that all schools had the same resources for their IM classes. She stated that the policy may be the same but that the reality is dependent upon the principal of the relevant school.
The child has keyboard and piano lessons which appears to be an activity he enjoys. It is noted that one of his brothers is a private teacher of music and was seen on the DVD teaching the child to play a piece of music on the piano.
The child had assessments in both 2004 and 2009 to assess his ability level. At both times the child was assessed as in the range of a mild intellectual disability. The test in 2009 confirmed that the child had a continuing need to have the support of a special education class.
The father is 65 years of age and is said to have a life expectancy of another 15 years. He also has some health issues including Type II Diabetes, high blood pressure, high cholesterol for which he takes medication, and he has sleep apnoea. This is relevant in that once the father passes away, if there is no contact between the child and his mother and siblings, the child would be isolated, very lonely and would have no one to look after him.

(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

This is not applicable.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

In her second report Dr S stated that while the Court is still supervising the father’s parenting that he is doing a reasonable job, but that she does not believe that contact with the mother would continue unless it was mandated through the Court. In her oral evidence Dr S confirmed that she still believed that contact needs to continue to be mandated by the Court.
In her oral evidence Dr S stated that she did not believe the father was still doing a reasonable job and that she was very disappointed that the contact with the mother had not been ongoing. She stated that she thinks it is clear that the father’s belief is that it is not important for the child to have contact with the mother, and that it is important to the father that he appears to win the case and influence the child against the mother and extended family.
Dr S stated that the father had distilled what the child told him about contact into a negative view and repeated this and encouraged the child to recite these words. He has then encouraged the child to give these opinions as evidence to the Court, both in writing and in spoken form.
Dr S is of the belief that if the child were to disagree with the father or to try and make his own decisions when he is older, he would no doubt be treated as his older siblings, which is to be completely rejected. She has no doubt that this would happen as it has been the father’s repeated behaviour. She stated that the father has done this with his five older children with callous disregard for them and their needs.
The Court has real concerns, having regard to the past history of compliance with Orders by the father, that it could have confidence that any mandated Order would be complied with by the father.
Dr S stated that the mother appeared to want to unite all her children. The mother avoided the child’s demands for a cruise or a discussion of the Court case and changed the subject appropriately.
Dr S stated that while the mother had his undivided attention the contact went well for both. The child felt ignored when others did not include him in conversation all the time, and Dr S stated that this is the usual state of affairs in any large family, and that the child needs to learn to wait his turn and to share the mother’s attention with the others.

(j)any family violence involving the child or a member of the child’s family

There are allegations of violence and abuse being perpetrated against the child by some of the siblings. These allegations are reportedly made by the child to the father and it is the Court’s view that the father made no attempt to explain to the child that his siblings were not abusing him, but rather perpetuated these fears in the child.
The father has made many allegations in his affidavit that the child had complained to him about being hurt by his siblings. It was U’s evidence that he was well aware of the allegations made against him by the father that he was an abuser and spitter, and asserts that the child had told him that the father called him these names.

On 21 June 2009, there was an occasion where the police went to the Upper North Shore house and U gave evidence that he believed the father had called the police upon the child’s instructions. It is the father’s evidence that the child had called him crying uncontrollably and told him that U had dragged him up the stairs and threw his DS Nintendo down the stairs and smashed it. The father admits to calling the police on this occasion.
It is the Court’s view that the father made no attempt to calm the child down and reason with him, instead he called the police straight away, which would have caused considerable stress to the child and to the siblings. U stated that the police left the house after approximately half an hour. There is no evidence to suggest that U in any way abused the child.
In 2010, an allegation was made that A had kicked the child in his testicles. A denied kicking the child in the testicles and stated that there was an incident where the child fell on his bottom on his Lego and toys. There is no clear evidence to suggest that A kicked the child in the testicles.
U stated that the child would frequently become violent towards him and their other siblings. He said he would punch, scratch, spit, slam his fists against glass windows and doors and throw things. He stated that one time the child thrashed about a butter knife. U stated that at times he found it necessary to restrain the child physically, but that he was never violent towards him and neither were any of his siblings.
It was A’s evidence that between 2008 and February 2010, the child’s behaviour increasingly became more difficult to control. He stated that difficulties became apparent in late 2008 and continued in to 2009. It was his evidence that at times things had to be forcibly removed from the child when he became out of control, using an incident where a broom had to be removed from him as an example.
U stated that the child never told him that J had allegedly pushed him and punched him in the stomach or that A had kicked him.
There was an incident in approximately October 2005 where U admits to striking the father. It is U’s evidence that the father was yelling and screaming at all of them and during this tirade the father was sitting with the child on his knee looking on the Internet for brides. U asserts that the father said to the child words to the effect “What about this one, she’s good looking. Would you like her for a new mummy?”, “I like this one [P], better than the one we have now”, “Pick yourself a new mum [P]”, and “This one would make a better mum than the cunt you’ve got now”.
U then asserts that the father started throwing around pots and pans in the kitchen and after thirty minutes of yelling he sat down and started to put the child’s shoes on and was screaming into the child’s ear words to the effect of “You’re mother is a fucking whore”, “Once a prostitute always a prostitute”, “Don’t you cry little boy. We’ll leave this pack of bastards and never come back”, and “Even if the court says you have to go with your mother, I’ll kidnap you and we’ll go and live somewhere in peace and harmony”. U asserts that he attempted to move the child away from the father and then the father screamed words to the effect of “Don’t you fucking touch him. He’s my son, not yours! Fuck off thanks!” U states that he lost control at this point and struck the father across the face. U says that after a pause of about thirty seconds the father fell to the floor moaning “My own son has hit me!” and then U stamped the heel of his shoe into the father’s stomach. U asserts the father then stood up and went outside.
In cross-examination U stated that he knew the father had been taken away by an ambulance but that he did not believe the father required medical attention of any sort after this altercation.
The mother asserts that after the father went outside he pretended to faint and remained like that until the ambulance arrived, and she begged the father to stop pretending as the child was becoming upset. She asserts that one of the Ambulance officers said to the father “C’mon mate. There’s nothing wrong with you”. The mother states that the child was distressed and scared the father was going to die. The mother asserts this was the first and only time she has seen U hit another person or be violent around another person.

(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

There was an interim family violence order made.
An email from the mother to the father dated 20 May 2010, being part of a chain of correspondence contained in Exhibit 29, indicates that the mother obtained an Apprehended Violence Order (“AVO”) following separation because she was in fear that the father was going to shoot her dead with guns and ammunition that she asserts he stole from …. She asserts in the email that the AVO was never an attempt by her to prevent him from seeing the children. The father denies that he had ever stolen guns and that the Magistrate dismissed the case against him.
Notwithstanding that result, there was violence to be found in terms of the verbal abuse and manipulative behaviour of the father directed to the mother and children including threats of abandonment.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is the Court’s hope that the parties will not institute further proceedings after having already spent almost six years litigating. It is always undesirable for children to be the subject of litigation between parents, and it is evident in this matter that there have been significant effects on the child as a result of this litigation.
The father has already demonstrated an unwillingness and/or incapacity to encourage the child to spend time with the mother, and has shown an inability to change his attitude and behaviour over the course of the proceedings. It is likely that this will continue if the child is to live with the father.
Placing the child with the father given the mother’s view as to what should then happen would perhaps create a cessation of hostilities, but the price for this child of his association with his siblings as well as his mother is too high a price to pay. That is not to say that no emotional costs will be incurred as a result of the Orders the Court proposes, but it is in the Court’s view the lesser of two undesirable results given the history of this matter and the nature of the parties.
The Orders that are proposed to be made in these proceedings are, in the Court’s view, the best that it can do in such circumstances where the father has sought to alienate the child from his mother and siblings. The Orders are the only way in which the child can have a continuous relationship with the mother and siblings without the interference of the father, and the Court hopes that the father will facilitate these Orders as they are in the best interests of the child and in time it is hoped that the child can have a relationship with all of his family members absent any conflict. It should be borne in mind that the Court is not a Court of unlimited tolerance to disobedience of its Orders. They are more than advice to be disregarded at whim. There is an expectation that they will be obeyed. There are proceedings available which can impose significant and long lasting sanctions for any attempted interference either directly or through others with the implementation and operation of the Orders that the Court makes.

(m) any other fact or circumstance that the court thinks is relevant

It was Dr S’s recommendation that the child should continue having sessions with Ms F, or at least someone independent from the Court system. She stated that it is important for the child to be heard independently by someone who is not going to give evidence in a Court setting and stated it was important for him to debrief as he is not able to say what he really feels and it is very hard for him.
Upon Dr S’s recommendations the mother and the siblings have attended upon Ms NV, Clinical Therapist, for six sessions. All of the siblings attended at least two of those six sessions. It was Dr S’s recommendation that such sessions would help the siblings learn better self-regulation and constructive ways to respond to the child if his behaviour was challenging.
Dr S stated that the siblings are young adults but in their early lives they have only been exposed to the mother and father, and that does not give them a big enough repertoire on how to manage a distressed intellectually delayed young man. She stated that they are not parents themselves, and yet they have been required to babysit at times which is understandable in a big family.
It was U’s evidence that the purpose of the sessions with

Ms NV were to understand how to manage the child’s transition and reintegration into their family unit should the mother be successful in her application. He said it was also an opportunity for them to workshop better approaches to managing the child’s behavioural problems, understanding the frustrations the child faces and best ways to communicate with him and get through to him more directly and meaningfully.
It was Dr S’s view in her second report that the child would greatly benefit from living in Sydney either at southern Sydney attending E High School Special Class and spending holidays in Southeast Asia, or at the Upper North Shore and attending D High School Special Class, until he is 18.
She did state however that given the continuity of brain growth into the

mid-twenties, the child’s education should continue at a special day college, not be dependent on strangers or in a Third World country where there would be no comparable program.
Dr S stated that she would recommend very specific Orders that preferably would last until beyond the age of 18, to a minimum of 25 years of age. This is because, due to the child’s mental capacity, he would not be capable of making his own decisions by then. Such parenting orders are not legally possible to make in this Court although Orders for the financial support of children with disabilities beyond the age of 18 years are possible to make.
With regard to medical matters concerning the child, Dr S stated that the father had made a comment to her about the child being able to get married and have children. Dr S stated that she is not aware of the child’s reason for intellectual delay having ever been investigated. She stated that he is a little bit dysmorphic and she wondered if he had some sort of mosaic chromosomal abnormality which has never been established, which would be heritable. She stated that would be important information if he was ever allowed to marry.

Dr S recommended that it would be of assistance for the parents to consider whether that should be investigated, but that she had not discussed it with the parties.
In this case the mother has submitted that if an Order is proposed by the Court to be made which provides for continuing contact between the child and his father that she would prefer in his interests that the child live with the father and not have contact with her. She says that the child has had enough conflict and it is not in his interests to remain in this state. She is convinced, as is the Court, that were there to be continuing contact with the father there would be continuing conflict and manipulation surrounding the child. There will be a detriment to the child in not having continuing contact with the father until he is mature but the Court finds in this case regretfully that such is the nature of the father’s past conduct (and the likelihood that it will continue so strong) that that detriment is outweighed by the advantage of removing the child from the toxic position in which he finds himself with a father relentlessly and insensitively pursuing his purpose in this dispute.
The mother and father have been joint trustees of a certain fund to be applied to the benefit of the child. The mother and father have been in dispute about the application of the funds and some examples of that dispute are referred to in this judgment. The Court finds that continuing the current trusteeship of the fund is a likely cause of further disputation surrounding this child. In the circumstances of this case that disputation must cease. The mother is to have sole parental responsibility and in order to serve the best interests of this child it is appropriate that she be the sole determiner of the application of funds held to his benefit. The Court proposes to make an Order that the father remove himself as a trustee of this fund and that the mother assume that role.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence has shown that the father has failed to encourage the child to have a relationship with the mother, and instead has sought to undermine this relationship and also the relationship with his siblings.
The mother has sought since the child resided with the father the opportunity (which has largely been denied to her by the father) to participate in decisions for major long term issues. The father has taken unto himself that responsibility in disregard of the mother’s parental responsibility and her right to give effect to it.
The mother has sought time with the child as set out above. It is the view of the Court that in significant measure the father frustrated the mother’s attempts to have time with child.
There have been attempts to communicate with the child by the mother. Those attempts have been frustrated by the father’s conduct from time to time.
The parties have maintained the child in adequate measure establishing a trust fund for the purpose of meeting some of his expenses now and in the future and otherwise meeting the child’s costs. The contribution of the father apart from the trust fund has been it seems greater than that of the mother.
The Court has had regard to the circumstances which have arisen since separation has occurred including those set out in this judgement.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the Orders I propose will operate to foster the best interests of the child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been family violence.
Notwithstanding that there may have been family violence it would still be open to the Court to make an Order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
It was Dr S’s recommendation that the father should not be given full parental responsibility. She stated that it is beneficial to the child for both parents to be involved in matters relating to his medical matters, and that both parents should have the ability to get a second opinion for any specialist medical procedure, operation, or if he is to be given any prescription medication.
The Court does not consider that there is a real and present possibility of joint parental responsibility working in this case. It would be simply a basis for disagreement and dispute to the detriment of the child. It is therefore not in his interest to pursue it. The Court proposes that the child reside with the mother and in these circumstances proposes that she be granted sole parental responsibility. Such an Order is more likely to promote the best interests of this child. That does not mean, and an Order will be made to this effect, that the mother should not inform the other parent of proposed major decisions and of the child’s social, educational and medical progress.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The Order the Court proposes to make will not be one for equal shared parental responsibility.

The Orders to be made

The Court therefore proposes to make the Orders in relation to parenting as set forth above and concludes that they are in the best interests of the child.

I certify that the preceding five-hundred and ninety-one (591) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 26 April 2012.

Associate:

Date: 26 April 2012

[2012] FamCA 263

26 April 2012

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Costs

Remedies

Jurisdiction

Procedural Fairness