Bletch and Douglas (No. 2)

FAMILY COURT OF AUSTRALIA

BLETCH & DOUGLAS (NO. 2)

[2008] FamCA 165

FAMILY LAW – CHILDREN - Best interests - Parenting orders - Residence - Planned overseas relocation of the mother - Mother acknowledges she would remain in Australia if relocation not permitted

Family Law Act 1975 (Cth)

AIMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: A Relocation Case (2000) FLC 93-035
Bolitho & Cohen (2005) FLC 93-224
Goode & Goode (2006) FLC 93-286
Paskandy v Paskandy (1999) FLC 92-878
Sampson v Hartnett (2007) FLC 93-350
SMG v RAM (2000) FLC 93-020
Taylor and Barker (2007) FLC 93-345
U v U (2002) FLC 93-112

APPLICANT:

Mr Bletch

RESPONDENT:

Ms Douglas

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

FILE NUMBER:

SYF

2318

2003

DATE DELIVERED:

7 March 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

13-15 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

Mr Milevski, Paltos & Co

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Mr Beazley, Beazley Singleton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

Orders

All previous orders relating to the care of … (“the child”) born … June 1998 be discharged.
The mother have sole parental responsibility for the child born … June 1998.
Prior to making important decisions relating to the child’s welfare the mother is to seek the father's opinion in relation to the decision to be made and have regard to the fathers’ opinions and views when making her decision.
The father be responsible for the day-to-day care of the child whilst the child is in his care.
The mother be permitted to relocate the child’s residence to the United States of America
The father spend time with the child as follows:
(a)       During the school holiday Winter break commencing with the child travelling to Australia on the day after the last day of school immediately prior to the commencement of the winter break and concluding with the child being returned to the mother three clear days prior to the commencement of school at the conclusion of that holiday period;
(b)       During the school holiday Spring break commencing with the child travelling to Australia on the day after the last day of school immediately prior to the commencement of the Spring break and concluding with the child being returned to the mother three clear days prior to the commencement of school at the conclusion of that holiday period;
(c)       During the school holiday Summer break commencing with the child travelling to Australia on the day after the last day of school immediately prior to the commencement of the Summer break and concluding with the child being returned to the mother three clear days prior to the commencement of school at the conclusion of that holiday period.
(d)       The mother is to make the airline bookings for the child’s travel to and from Australia and advise the father by e-mail of travel details and further provide evidence of the cost for that travel. The father is to be responsible for one third of the cost of economy class travel for the child on the flights booked by the mother. He is to make payment to her for his share of the cost within 28 days of the arrival of the child in Australia for that particular holiday period.
(e)       The father is to have telephone time with the child each Friday at 4:30 p.m. US time. The father is to call the child on the child’s mobile phone number and the mother is to ensure that the child’s mobile phone is in working order and to hand, ready to receive telephone calls at that time each week.
(f)       If the father is in the USA and available to spend time with the child he is to have up to two weeks time with the child in a location which enables the father to ensure the child attends school. This period may be extended with the consent of the mother provided in writing (including e-mail). The father is to give at least one months notice of the time he wishes to spend with the child in USA.
(g)       The child is to spend the two days immediately before his departure with his mother and a two week period immediately before those two days with his father.
(h)       Such further time as the parties may agree upon in writing (including e-mail).
During the summer break whilst the child is in Australia the mother is to have two periods of five days with the child where those periods are not to be consecutive and are to be reasonably spaced within the summer break time which the child will have with his father.
During the time that the child spends in Australia with his father the father is to ensure that the child has his mobile phone switched on and in working order each Friday at 4:30 p.m. Australian time so that his mother might call him at that time.
On not less than one occasion each fortnight the mother is to provide, by e-mail, to the father, a report detailing matters which she believes would be of interest to the father in relation to the child’s day-to-day activities in America.
The mother is to ensure that whilst the child lives with her in America he has reasonable access to a computer which has a Skype program installed together with a web cam in order that the child may communicate with his father by that means or by e-mail at times which the child and his father may mutually agree upon.
The father is to ensure that he has the Skype program and a web cam installed on the computer he proposes to use to communicate with the child when the child is in America.
During the time that the child spends in Australia with his father, in the event of the mother also being present in Australia at that time, the child is to be available to spend time with his mother during the daytime if his father is not available to care for him due to other commitments. The father is to be able to allow his wife to care for the child in the absence of the father on infrequent occasions if the mother is available to care for the child during the daytime whilst he is in Australia.
Each of the parents is to be permitted by the other to attend any of the child’s sporting, school or extracurricular events, where parents are invited or permitted to attend.
The mother is to provide to the father, within fourteen days of receipt of same by her, a copy of the child’s school reports.
The father is to forthwith return to the mother’s solicitors, all copies in his possession or control, of a report by Mr G dated the 21st July 1994 relating to the mother, a copy of which was annexed to the fathers’ affidavit filed in the proceedings.
The Independent Children's Lawyer is to meet with the child as soon as possible after the making of these orders to advise him of the content of the orders and answer, if possible, any questions he may have about the orders.
Each of the parties is to ensure that they keep the other notified about any change of e-mail address.
Unless otherwise agreed the parties are to communicate by e-mail, mail or SMS text messaging. The parties are only to communicate by telephone in the case of an emergency unless they agree in writing to the contrary.
The mother is to ensure that when the father spends time with the child in America he has details of the child’s regular medical practitioner so that the father can access that medical practitioner in the event of the child suffering ill health in his care.
Each of the parties is to pay to the Legal Aid Commission of NSW the sum of $1,850 within three months from the date hereof being their contribution to the costs of the Independent Children's Lawyer.
The Registrar of the Court is to forthwith provide a copy of these orders to the Australian Federal Police to serve as authority for the mother to be able to remove the child from Australia.
Pursuant to s65DA(2) and s62B, 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.

NOTATIONS:

A. The father is proposing to visit the child in America on two occasions each year.

IT IS NOTED that publication of this judgment under the pseudonym Bletch & Douglas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2318 of 2003

Mr Bletch

Applicant

And

Ms Douglas

Respondent

REASONS FOR JUDGMENT

Introduction

The subject child is the only child of the father and the mother. He is 9 years of age. His parents have been separated since he was four. Although he has experienced some periods of relative peace between his parents, he has since the end of 2006 been subjected to high parental conflict. In 2003 there were proceedings in this Court and in the Local Court of NSW. The proceedings in this Court in 2003 saw concerns raised by the mother about possible sexual abuse of the child. The concern included direct and/or indirect allegations that the father may have sexually abused the child. The proceedings in the Local Court were proceedings taken by the NSW Police seeking an Apprehended Violence Order (AVO) against the father. The AVO proceedings did not achieve and order against the father and were dismissed. The 2003 proceedings in this Court were settled with the father not being restricted in his time with the child. The father has annexed to his affidavit copies of judgements from the Local Court and from this Court which he says are condemning of the mother.
The mother has pioneered a communication system. The research and development of this discovery occurred, at least to an extent if not entirely, whilst the mother was in a business relationship with the father. This discovery has given the mother an elevated media profile, especially in the USA. She was invited onto a US talk show which has apparently caused enormous interest in her from commerce and business opportunities are now available to the mother. In order to take full advantage of those opportunities she wishes to live in the USA. She will not go to live in the USA without the child. The father opposes the child living in the USA with the mother.
The child has been seen by Ms B, a Family Consultant with the court. She has prepared a report which was in evidence during the hearing. She also gave oral evidence. She concluded that the child did not want to say anything which might be seen as choosing between his parents. If the child was to go to the USA with his mother he told the Family Consultant he thought his father would be sad.
The mother has a book contract with a publishing house in the USA which has advanced her $450,000 for the book she is writing. She says she has had to use that money not only to support herself but also to pay her writer and to conduct research. She has been endeavouring to write the book by travelling backwards and forwards to the USA. She says that this will be unsustainable in the long run. She also has a television opportunity in the USA which would require her to be in the USA.
The mother’s case is that if she cannot take the child to the USA then her career will be substantially lost. Whilst acknowledging that she would be able to do some of her work in Australia, she contends that her income earning capacity in Australia is substantially less than that she could earn in the USA.
The father’s case is that if the child is permitted to live in the USA with the mother then he will have a very different relationship with the child to that which he currently enjoys.
The father submits that the mother can pursue her career in the USA from Australia. He says that should the mother require longer stays in the USA from time to time then he would be able to take on responsibility for additional care of the child at those times in Australia.
I accept the evidence of the Family Consultant that the child has a good and close relationship with each parent. I also accept the child loves each of his parents and that each of his parents loves him.
It is with great regret that I approach the task of writing this judgement. I will during this judgement need to be very critical of the father. I may well have some criticism of the mother. What I have to say will, I am sure, be very hurtful to the father. To write this judgement and side step crucial issues about which hard determinations need to be made would be a dereliction of my duty as a judge of this court.
At the end of the second day of hearing, in February this year, the Independent Children's Lawyer advised me that she would be supporting orders being made which permitted the mother to relocate with the child to the USA as proposed by her. Given the way the evidence had fallen to that point of time it was no surprise to me nor, I am sure, to the parties’ legal representatives that the Independent Children's Lawyer had adopted that position. Following that advice from the Independent Children's Lawyer and immediately before adjourning for the day I requested that the parties again try to reach an agreement about the child and where he will live in the future. I told the parties at that time that if the matter proceeded to requiring a judgement the way in which the case had been run would require me to make some findings which would be very hurtful to at least one of the parties. No settlement was reached.
The findings which I am required to make against the father will, I reasonably predict, impact upon him personally and I believe at least in the short term could make it difficult for him to cooperate with the mother in relation to the parenting of the child. Ongoing inability to cooperate between the parents is contrary to the child’s best interests. He needs and deserves parents who are able to cooperate about his care. Nonetheless what is required to be done must be done even though harsh and hurtful findings and conclusions must be made.
As I said to the parties during the trial I am but a mortal and have no special ability to be able to determine whether a witness is lying to me. I use the same old tools of trade as Judges have used for centuries namely; study the content of the evidence and the manner in which it is delivered. Look for inconsistencies. Measure the parties’ evidence against incontrovertible evidence. Rely to a considerable extent upon the evidence of impartial or potentially less partial witnesses if they are available. This method provides a result. However, the accuracy of same can only be measured by deity and those who know the real truth. That being said and with great reluctance I proceed further with these reasons.

The Parties’ Proposals

The father’s proposals for the care of the child are contained in his amended application for final orders filed on the 22nd of June 2007. His counsel confirmed that the orders sought in that document were pursued in the hearing before me.
The mother’s proposals for the care of the child are contained in her response to an application for final orders filed on the 20th of July 2007. The mother’s counsel confirms that the orders sought in that document are pursued in the hearing before me.

The Issues

Before identifying important issues of fact between the parties I need to record an extraordinary aspect of the conduct of this case.
In her primary affidavit filed, as directed by me for this hearing, the mother made no allegation against the father to suggest that there were any fears of abuse by the father of the child. The father in his primary material filed evidence of the history of what he said were allegations made against him by the mother of child abuse, bizarre and frightening behaviour. He also annexed a copy of a report by a psychologist, Mr G, which had been prepared on the 21st July 1994. This was a document which belonged to the mother but which the father had in his possession at the time he prepared his affidavit. This report details a history provided to Mr G, by the mother, of severe cruelty, physical and sexual abuse perpetrated against the mother including rape by her maternal grandfather and an older brother. It evidences the mother’s exposure to the conflict between her own parents following their separation. The report had apparently been prepared for legal proceedings at about that time.
The mother, with leave, filed an affidavit in response to the father’s affidavit as did the father file an affidavit in response to the primary affidavit of the mother.
The father is the applicant in the proceedings before me. He was the first of the parties to be cross-examined in the hearing. Under cross-examination by the mother’s counsel the father was asked why he wanted to include all the prior history of the allegations made against him. His attention was taken to the fact that no such allegations have been made against him by the mother in these proceedings. He was asked to seriously consider the necessity to trawl back over these allegations and invited to withdraw those parts of his affidavit which did not relate to more recent history and in effect look to the future of co-parenting rather than to the past. The father was given a short adjournment to obtain legal advice from his solicitor and counsel, both of whom were present in court. The court resumed thereafter and I was informed by the father’s counsel that he would not withdraw any part of his affidavit material. There then pursued a lengthy cross-examination of the father about the earlier allegations of abuse made against him which he had elected not to abandon. As this evidence emerged I became more and more concerned for the well being of the child.
There are a substantial number of allegations made by each party against the other which are completely denied by the party against whom the allegation is made. In the father’s case he says the mother has deliberately fabricated some of those allegations.
As the case progressed the reason the father had sought to pursue the earlier allegations of child abuse made against him was made clear. I was told it was because he wanted to establish a case that the mother had a propensity to lie and to fabricate allegations of the most serious nature against him. This case was being run in the face of orders sought by the father that there should be an equal shared time arrangement between the parties for the care of the child.
Shortly into the cross-examination of the father it became evident that he was failing to answer the questions asked of him. At that time I intervened to explain to the father the consequence of continuing to avoid answering the questions asked of him. I confirmed with him that this was a case where there were a significant number of allegations made by each parent against the other parent where such allegation was completely denied. I explained that at the conclusion of the trial he should expect that the counsel for the mother would ask me not to accept his version of the facts over the version proffered by the mother. One of the reasons he could expect to be advanced for why I would not accept his evidence would be that he refused from time to time to answer the question asked of him. The father thanked me for the information and the cross-examination proceeded. Surprisingly the father continued on a fairly frequent basis to continue his practice of not answering the question and further indulged in providing additional information which had not been sought. On some occasions the additional material consisted of an allegation against the mother. There were a number of further occasions where I was required to be critical of the father for the way he was giving his evidence.
I should at this point draw the contrast with the way in which the mother gave her evidence. The substantial part of her cross-examination saw her address directly the question asked of her. There were other differences which I will refer to later.

The issues which appeared to take up most of the time in the oral evidence of the parties were as follows:-
a)Has the mother hindered the father spending time with the child;
b)What are the prospects of the father being able to communicate with the child by phone and other methods if the child is in the USA with his mother?
c)Has the father hindered the mother’s communication with the child whilst he is in the father’s care?
d)Has the father bullied and or harassed the mother in his dealings with her?
e)Is the mother to be trusted with supervision of the child’s health? Has she projected onto him symptoms of her own debilitating illnesses?
f)Has the mother made false allegations of child abuse, domestic violence or inappropriate behaviour against the father?
g)Does the mother have an underlying emotional or personality disorder?
h)Would the current state of the parties’ relationship and ability to communicate make it appropriate to impose a equal shared parental responsibility order as envisaged under section 61DA of the Act?

Credit

The credit of the parties in this case, in my view, has assumed importance beyond that usually experienced in children’s cases in this court. In many cases differences of opinion largely relate to varying parenting styles. In this case in addition to the differing parenting styles of the parties there are substantial disputes of fact. It has been necessary for me to consider whether to accept one version or the other or neither.

The Father

The father presented as a highly intelligent, articulate man. He was stern, cool and business like in appearance yet able to appreciate some moments of slight levity which inevitably emerge during the course of the most serious of hearings. He was very well dressed and groomed. He was trim and had an athletic physique. The evidence was that he was a healthy eater and that he looked after himself physically. As mentioned earlier he had difficulty confining himself to answering the question he was asked. He was apparently eager to make adverse comments about the mother when he thought the opportunity to do so was provided. On some occasions this was in the nature of wanting to tell me the mother engaged in similar behaviour when the cross-examiner was suggesting the father’s behaviour was unacceptable, insensitive or inappropriate.
The father gave his evidence in what I saw as a forceful manner. His presentation was that of a man who was successful in business and used to getting his own way. A man who was neither accustomed to failure nor able to handle failure without anger and amazement at the fact of failure. A man who does not abide criticism of himself. There were times during the cross-examination where I formed the view that the father was angry but able to disguise that anger in a well practised way. This presentation went some way to supporting the mother’s statement that the father had bullied, harassed and followed her at various times and with various intensities since the separation. The last serious incident she described had occurred in May 2007. She claimed that the period of relative peace between 2004 and the end of 2006 occurred only because she had been completely compliant with the father’s requests of her. She did not by and large argue with him. She described herself as a “doormat” for the husband to trample on. At the end of 2006 or into 2007 the mother abandoned that tactic, on advice from Ms T, psychologist, and thereafter the conflict between them had become extreme.
Adding fuel to the battle between the parties about the child the mother says that the father would not forgive her for leaving the business they had developed involving the novel communications system. Indeed there were indications during the trial that there would be further litigation between the parties relating to the work the mother is proposing to do in the USA. The father says that the company he now owns is itself the owner of the intellectual property in the concept. If so then there is possibly only a limited ability for the mother to exploit her discovery and her fame in America without having the father sue her for revenue generated from her activities.
In taking notes as the father gave his oral evidence, I have noted my impressions which included that the father gave his evidence in a way which indicated a high level of suspicion of the mother in all aspects of her life. I doubt the father has the capacity to consider any action of the mother without at least considering the probability that it is designed to harm him in some way rather than be in their child’s best interests.
There were very few accolades for the mother from the father in his evidence. He was specifically asked what good qualities she might have to parent the child. He said she was a very intelligent woman. He said she had been very clever to have identified the communication system concept. He said she was the child’s mum. With the exception of these positive statements about the mother I hold the view that the father has a very poor opinion of the mother as a person. His poor opinion of the mother borders, in my opinion, on being extreme. That is, he holds an extremely poor opinion of the mother. This may account for his inability to give his evidence in a manner which he clearly understood, following my warning to him, was required.
The father does not trust the mother in a number of areas of care for the child. These include his health and in particular whether he suffers from migraines and/or asthma. He does not trust her to attend to the child’s dental health.
I also noted when giving his evidence he sometimes took a defensive stance. This defensive approach, in my opinion, exacerbated the propensity to not answer the question asked of him but to excursion into other information.
The father did not appear to me to show any indication of understanding that he had contributed to the conflict between the parties. It was apparent that he attributed all of the cause of the parents’ conflict directly to the mother. He gave his evidence delivering an underlying and sometimes direct message that he was a very reasonable and child focused person. Further his underlying and direct message was that the mother was totally unreasonable in her dealings with him.

The Mother

The mother presented as a well dressed and articulate woman. She appeared very intelligent yet humble. She was softly spoken. She presented in a warm manner. Her answers oozed consideration and empathy for her son. She appeared to me to be very child focused. She evidenced to me the ability to be able to differentiate between matters relevant to the business battle between the parties and the matters relating to the child. She was understated. She appeared reluctant to be critical of the father and even when opportunities presented themselves for what is described as a “free kick” in legal parlances she chose not to take advantage of that opening. She left me with the impression that she was not interested in continuing to fight with the father. She wanted to get on with her new life and for him to get on with his. By the same token it was equally clear that she was no longer prepared to play the game where she was the “doormat”. If the father sought to communicate with her in an aggressive, rude or inappropriate way she decided she will not communicate with him in that way or on that topic. It was put to her that she had not responded to his e-mails at times during the last 12 months. She said she did not respond to any emotive e-mails. She said there were from time to time a number of e-mails sent to her in close succession. On those occasions there might be one reasonable, un-emotive e-mail in the midst of emotive and aggressively toned e-mails. She would then ignore all of that batch of e-mails
I detected that the mother is suspicious of the father and his motivation. One good example of this is the e-mails that the father has been sending to the mother during most of 2007 describing the activities that the child has engaged in during the week he spends with his father. The mother thought this was not a genuine attempt to communicate but rather a tactic to try and convince the Court that he was a responsible parent. She pointed out that some of the e-mails which were in evidence were not sent until the Tuesday of the week when the child was with her. This meant that the information which might have been useful was outdated by the time it was received.
The presentation of the mother in the witness box gave me the impression she was being honest. She was not apparently endeavouring to hide relevant facts nor did she endeavour to embellish her answers. She appeared calm and considered. I do not recall an occasion when I thought she was using the witness box to say something adverse about the father for the sake of venting any anger or resentment she might have harboured.
There was nothing about the content of the mother’s evidence that suggested to me she was being dishonest.
The mother readily gave concessions when called upon to do so and where it was appropriate for her to do so. They were not given begrudgingly. They were not drawn out over a lengthy questioning process. The concession appeared to be given in good spirit.
On a number of occasions it appeared to me that the mother was being understated. At times when she answered questions by answering “yes” or “no” in a perfectly appropriate manner, there was an obvious and conscious disinclination to add an explanation which in context at the time was likely to be critical of the father. She would start a sentence and then retreat to the “yes” or “no” answer.
The mother was, like the father, able to identify positive aspects of the other parents’ personal qualities from which the child may benefit through having a continued relationship with that parent. I was left with the impression that the mother held a poor opinion of the father, just as I concluded the father held a poor opinion of the mother however, unlike the father, I did not think the mother’s opinion was bordering on extreme. She did not appear to harbour ongoing resentment towards the father for the behaviour he had subjected her to although she had complaints about those actions which emerged from the evidence.
I was left with the overall impression of the mother, having considered all of her evidence and other evidence in the case, that she has moved on emotionally from the breakdown of the relationship. I had an entirely different view of the father having considered all of the evidence. I was left with the clear impression, derived from many aspects of the presentation of the father, his evidence and the evidence of the mother, that the father, for some un-stated reason has still not moved on emotionally from the breakdown of the relationship. This is despite his marriage and his protestation that he is in a loving and happy relationship. I find there is real substance to the statement of the mother that she believes the father is still motivated by a desire to punish her for the breakdown of their relationships both emotional and business.

Conclusion on Credit

Having set out the above findings on credit I conclude that I prefer the evidence of the mother to that of the father where there be conflict unless I make a finding to the contrary as I consider and weigh the evidence in the balance of these reasons.

Background Facts

At the commencement of the hearing days commencing 13th February 2007 the parties complied, following my prior directions and produced, a document titled “Document filed pursuant to Rule 24.01(1)(h).” (I don’t really understand why this title was chosen). This document contains a chronology of events which the father said were important and relevant historical facts. The mother has appended to each entry an admission, denial or assertion of irrelevance. The document is marked as exhibit X1.
Some of the matters about which there is no controversy and which set a framework for the determination to be made by me are as follows.
The father is 48 years of age and the mother 33 years of age.
In April 1997 the parties commenced living in a de facto relationship.
In June 1998 the parties’ child was born.
In July 2000 the parties underwent a ceremony in Le Meridien Hotel in Tahiti which the mother believed was a ceremony of marriage. Exhibit M3 is a “Certificate of Marriage” provided to the mother after that ceremony. The mother says she only became aware that the ceremony was not a legal ceremony of marriage when she moved for a dissolution of the marriage. The father was under no such misapprehension about the nature of the ceremony.
The parties separated on the 15th November 2002.
In May 2003 there was an interim AVO issued against the father.
In 2003 reports were made to the Department of Community Services in relation to the well being of the child. Amongst other things it appears that the child told a medical practitioner that his father had digitally penetrated his anus. The medical practitioner was attending upon the child because he was reported by his mother to be bleeding from the anus. The medical practitioner reported the matter to DOC’S. The mother also made a notification as did, it seems, a child care worker.
On the 1st August 2003 Justice Barry heard interim parenting proceedings between the parties. A copy of the judgement delivered on 7th August 2003 has been annexed to the father’s affidavit.
On the 31st October 2003 the AVO proceedings were heard at the Waverley Local Court. The case was dismissed. The father annexed to his affidavit a copy of the judgement delivered on that occasion.
Consent parenting orders were made by Justice Boland on the 12th November 2003. These orders provided, in broad terms, for the child to live equally between his parents.
The father married Ms C in January 2005.
Between 2005 and about the end of 2006 the parties met frequently for business purposes.
During 2006 each of the parties travelled overseas and the child was cared for by the other parent.
In December 2006 the parties business and parenting relationship broke down. Following that event the parties have had limited capacity to communicate. A flexible parenting arrangement was no longer possible. The father spent less time with the child than he had previously.
At the end of 2006 an issue arose between the parties about the state of the child’s health. This related particularly to whether the child suffered from asthma. The mother asserted that the child was an asthma sufferer and that failure to comply strictly with his medication regime could expose him to danger.
The father engaged Dr M, paediatric respiratory specialist, to review the child’s health. The father secured a report from Dr M. That report was in evidence in the case. The father provided a copy of the report to Dr N, the child’s GP. The father obtained a further written report from Dr N.
On or about the 14th February 2007 the father collected the child from school and took him to see Dr A who was the father’s dentist. The mother had not been given any notice by the father of his intention to do this. In his oral evidence the father lead me to believe that the child was accompanying the father to the dentist and incidental to an appointment which the father had to see the dentist. Whilst there Dr A also saw the child. Dr A determined that the child needed to have a tooth removed. He prepared the child for the removal of the tooth. The father had not informed the mother of this procedure. He must have known that to have the child’s tooth removed without the mothers’ consent would be a very inflammatory action to the mother and place the child directly in the middle of a very high level of conflict between the parties. The mother was able to contact Dr A before the procedure took place and tell him that he did not have her permission to continue with the procedure.
The mother thereafter took the child to Dr K who had traditionally cared for the child’s teeth. Arrangements were made for the child to have the extraction of a tooth performed under anaesthetic at hospital. Prior to that procedure taking place the father took the child to another dentist who removed the tooth. This was done without consultation with the mother.

The Evidence

In his affidavit, the father said that the parenting arrangements between the parties broke down from about December 2006. The mother’s evidence in reply was that it had broken down at an earlier time and she annexed as Annexure A to her affidavit a copy of e-mails dated October 2006 to the mother from the father. In that e-mail the father described the mother as “Ungrateful bitch. Oh yeah...fuck off.”
On Wednesday the 25th of October 2006 at 12:58am the father sent an e-mail to the mother which was, in my opinion, in a threatening tone. The e-mail was to the following effect “when I call to speak to [the child] I expect you to call me back so I can speak to him. You have my numbers: …otherwise I will return the favour when you’re overseas. Understand?” On that day, the father sent three e-mails to the mother; the first at 12:55am, the second at 12:58am and the third at 1:14am. All of the e-mails were directing. None of them were consulting. All had, in my view, “bullying” overtones and two were highly offensive.
When questioned about these e-mails, the father’s evidence was such as to suggest that this was the only time he had ever addressed the mother, either in e-mails or verbally, in an offensive manner. The mother’s evidence is to the contrary and in relation to that matter I prefer the evidence of the mother. I will refer to some of these matters later in these reasons.
In paragraph 17 of his affidavit the father stated that the mother, whilst in London at the end of 2006, did not telephone to speak to the child or inquire about his health during the period she was overseas on business. The mother’s reply was that she did telephone to speak to the child; however, the father did not let her speak to him. To corroborate this fact, the mother has annexed a copy of a facsimile she sent to the child’s school dated the 6th of December 2006. The mother said she felt compelled to communicate with the child this way so that he would not feel she had forgotten him. In this matter I accept the mother’s evidence in preference to that of the father. The mother did not ever present in my Court as the type of mother who would go overseas and simply forget about her son in Australia. The suggestion that she would do so runs contrary to the vast majority of all the evidence before the Court relating to the mother’s parenting capacity and dedication to her son.
In paragraph 18 of the father’s affidavit he recites a conversation which he says occurred prior to Christmas 2006. This conversation, he says, was to the effect of the mother advising the father that she was proposing to move her residence to the United States and to take the child with her whether the father agreed to it or not. The mother denied the conversation ever occurred and said it was a fabrication. I accept the mother’s evidence in relation to that dispute.
In paragraph 19 of the father’s affidavit he says the mother became uncooperative in relation to the co-parenting of the child. In her affidavit in reply the mother denies that and sets out the arrangements which had been operating for the care of the child up to about the end of 2006. I accept the mother’s evidence in relation to those matters.
In her reply to paragraph 20 of the father’s affidavit, the mother set out details of an altercation which took place in the presence of the child. This altercation took place on the 4th of May 2007. During the altercation, the mother says the father said the following words to her in the presence of the child: “He’s my son and he will do what I tell him. He’s playing football.”… “Don’t worry, your mother’s a fucking idiot who’s going to be taught a lesson real soon. You do as I say, it’s got nothing to do with you. It’s between your mother and I and she’s about to learn the hard way.”… “I can do what I like. He’s my son, not yours, and he’s doing what I want him to do.”… “You’re going to be fucking sorry embarrassing me like this. I have to enrol him.” I accept the mother’s evidence that the father said these words to her. In my view, these are the words of a person who regards himself as a “powerful man”. They are words of a person who is used to getting his own way. They are the words of a person who has no regard to the impact on his son of the words themselves. They are words which model for the child bullying behaviour and therefore evidence poor role modelling for the child.

In paragraph 9 of her affidavit in reply, the mother sets out details of the events commencing 16 May 2007. I accept her evidence that on that occasion, the child had suffered from an asthma attack. I accept her evidence that she had real reservations that the father would accept that the child at any stage suffered from asthma. I accept she had reservations that the father would administer any medication for asthma that the mother provided to him. I accept that there was a good basis in fact for the mother to hold that reservation.
The mother sent a text to the father advising that the child had been sick and wouldn’t be going to the father’s house that evening (17 May 2007).
The mother says that on the morning of the 18th of May 2007 the father attended at her residence and pressed the buzzer for an extended period of time without releasing it. The mother was on a conference call to New York and the child was asleep. The mother answered the buzzer to which the father said “I’m picking up [the child].” The mother said “No. He’s sick. You can’t do it, and I’m really busy. Sorry.” Thereafter, the father kept buzzing the buzzer and calling the mother’s home phone and her mobile phone. This all occurred in the early morning before 9:00am.
Later in the day at about 3:00pm, the child was awake and the mother needed to obtain some basic food items such as milk and bread. She took the child with her to a shop. When they arrived back at the unit, the father was sitting in his car blocking the driveway so that the mother could not drive her car into the apartment block. She continued to drive past the unit. The father then followed the mother and was “tailgating her car”, sounding his car horn and flashing his lights. The child was frightened and commenced to cry. It was raining. The mother telephoned her solicitor. She went to the police station.
In her oral evidence, she was asked about this occasion. She described an incident which in my opinion would have been frightening to both her and the child. The frightening aspect was the father’s behaviour. She said that she had driven to a police station. She had hoped that the father would disengage from following her at the police station but he did not do so. She was therefore forced to go into the police station in order to seek refuge. The mother made a complaint. Proceedings were issued against the father for an apprehended violence order.
In paragraph 26 of his affidavit the father complains that he is not able to communicate by telephone with the child whilst he is in his mother’s care. This is particularly in the period following December 2006. In the mother’s reply, she said the father had her telephone service disconnected in June 2007. She says she obtained a new telephone number; however, since then, because the father harassed her with telephone calls, she did not provide him with her new telephone number. She annexes and marks as Exhibit K photocopy of mobile telephone taken on the 3rd of May 2007 showing ten missed calls by the father by 10:54am. The mother says that the father leaves so many messages that her service is congested and unable to receive other calls. I accept the mother’s evidence in relation to that matter. I accept that during 2007, the mother has largely not participated in communicating with the father. I accept that part of the reason she has done this is out of concern that she will be spoken to inappropriately by the father or have the feeling of being harassed or bullied by him.
In about July or August 2007, the father sent e-mails either directly or indirectly to the mother suggesting mediation with Ms T. The mother rejected those proposals. The mother was of the view that the proposals were not genuine but rather an attempt on the part of the father to be able to spend time with the mother in the same room. For her part, she took the view that she could obtain better benefit from Ms T by seeking her assistance in how to better parent the child and how to deal with the father. I accept that the mother took that view of the father’s proposal. I do not find that the father’s proposal for mediation with Ms T was disingenuous.
In his affidavit, the father recited many occasions of when he has been unable to make any contact with the mother. He has complained that the mother has not returned e-mails. He complained that he was unable to speak to the child on the telephone when the child was with his mother. The mother does not deny these allegations and consistent with her oral evidence I accept that she deliberately chose not to engage in conversations with the father either by e-mail or directly as part of her strategy that she would no longer be “a doormat” to the father in relation to the care of their child.
The lack of the parties’ ability to communicate has led to difficulties for the child. On the 6th of December 2007, the mother says that at about 5:20pm she found the child at her home in a distressed state. It was raining and cold. She said that the child had no shoes, socks or jacket on. The child told his mother that the father had dropped him off approximately 15 minutes prior to that time. The father denies that he merely dumped the child at the mother’s home and abandoned him. I accept the father would not deliberately “dump” the child and flee. I am sure the father thought the child had made contact with his mother and gained entry to her house. I accept that was not the case. This situation arose because the parties had no effective means of communication.
The mother says it is her practice that when the father calls to speak to the child, she puts the child on the telephone. She also says that when the father leaves a message for the child, she has the child call his father back. I accept her evidence.
On the 17th of September 2007, the mother says that she received a package containing the child’s clothes where one piece of clothing had been cut into small pieces. She exhibited that piece of clothing. They were tracksuit pants. The mother says this was not the first occasion that such an incident has occurred. On an earlier occasion, a new jumper had been returned in a state which the mother described as “slashed”.
It is the mother’s belief that these pieces of clothing have been destroyed by the father. The father denies that he has damaged the clothing. The evidence is insufficient for me to conclude that the damage has been perpetrated by the father.
The father complains that he was unable to contact the child on a date in October 2007. This was the father’s birthday. The mother responds by saying that this was part of a weekend which had been the subject of orders by Justice Benjamin. The mother had been permitted to take the child to her father’s residence in the country where she says there is no mobile telephone reception. She said that on the way to her father’s house she had arranged for the child to call his father, which he did and left a message on his father’s answering machine. I accept the mother did that. The mother says that if the father allowed the child to have access to his mobile phone, which the father has supplied him, at times other than when he is in the father’s care, then there would be no need for the father to ring the mother’s telephone services to speak to the child. He could speak to him directly at any time he so chose.
Both the parties gave evidence about the events surrounding the child not attending at his school camp which appears to have been about November 2007. The mother says that she signed the permission note for the child to attend; however, the father refused to sign the form. The father says that the child had told him he did not want to attend the camp because one of his friends was not attending. The mother says that the child has been very distressed at the fact that the father would not allow him to attend the camp. There was nothing in the way that either party gave evidence to suggest to me that either of them was being untruthful about this matter. It seems to me that this is an example of the child being caught in the conflict between the parties and deliberately manipulating the parties by taking a position which he believes each would support. It seems to me likely that the child received some message in his father’s household that his father was not happy about him attending the school camp and thereby fabricated a reason for non-attendance. It is hard to accept that a boy of the child’s age would not want to attend a school camp which was to be attended by the vast majority of his class or school.
Between the 27th of December 2007 and the 10th of January 2008, the child was in America with his mother. During this time, the father says that he was able to have regular contact with the child. However, on two occasions he said he was not able to speak to the child. The mother replied annexing a copy of an e-mail which she had sent to the father requesting details for his Skype address and/ or details of a better time to contact him.
The father says in paragraph 60 of his affidavit that he in fact travelled to America between the 2nd of January 2008 and the 5th of January 2008. He says he spoke to the child on two occasions while he was in America, however he did not inform the child that he was in America.
In response to that part of the father’s affidavit the mother says that she had no idea the father was in the United States at the same time that she and the child were there. She says that on the 5th of January 2008 the child said to her at home as they were getting into a hire car “There’s dada in that car.” The mother says that she didn’t look. She said to the child “Don’t be silly, sweetheart. He’s not here. He’s not in this country and you do not have to worry about him following us.”
In cross-examination, the father denied that he had been following the mother and the child in the United States. He claimed that he did not see them in the United States. He did not take the opportunity to look at the school the mother proposed the child should attend or to make contact with the child for the purpose of spending time with him in the United States. The father told me he had deliberately chosen not to make contact with the mother and the child because he feared some claim would be made by the mother that the father had behaved inappropriately and the American law enforcement agencies may become involved.
I am unable to reach a conclusion in relation to the above incident. Given the seriousness of making a finding that the father was following, spying on or stalking the mother and the child in the USA I have to apply a test to the acceptance of that evidence as prescribed by section 140 of the Evidence Act. I am not satisfied on the section 140 test that the father was following the mother and the child in the USA.
Under the heading “Order 3(k)- the father’s concerns about the mother’s dealing with and/ or apparent attitude to [the child’s] health, medical and dental treatment i. the assertion by the father; and ii. specific examples of the mother’s activity or inactivity to support the statement in paragraph (k)(i)” the father set out in his affidavit what is said to be his evidence on that topic. The form of the evidence in paragraph 80 and 81 is of little to no assistance to the Court. It is not evidence. It is predominantly submission and assertion unsupported by any fact.
In paragraph 82 of the father’s affidavit, he refers to an e-mail from the mother which is set out at page 32 of exhibit GB-1. In this, he raises for consideration the assertion by the mother that the child’s asthma has the capacity to become “very unstable and dangerous”. The e-mail referred to on page 32 of GB-1 was sent by the mother to the father on the morning of the 24th of December 2006. On the face of it, it is a resignation by the mother to the fact that she would not be able to spend Christmas with her family as she had understood might have been the case. As a postscript to that e-mail, the mother raised her concerns about the child not taking his medication for asthma when he is with the father. She concludes the e-mail by saying the following:
His asthma has improved significantly and I would ask that despite your personal views of medication that you continue following the doctor’s instructions as stopping it suddenly could result in a very serious and life-threatening asthma attack. [The child] knows how to take his medication but he will need to be reminded, and to carry his Ventolin on him at all times.
It is difficult to see what could be so offensive about that information as provided by the mother to the father in that e-mail. Nonetheless, on the same day and within two hours of the mother’s e-mail, the father responded. He cavilled with the mother’s interpretation that the child had spent more time with him than with the mother. In the third paragraph he said as follows:-
Finally, I am very alarmed that in your care [the child] suffers from such a dangerous asthmatic condition, similar in severity to what you yourself have suffered with your entire life. In the last three years [the child] has been in my care, despite having a Ventolin in his bag at all times, none of my many friends and family have ever seen [the child] need to use his medication. No teacher has ever told me [the child] was unwell while at school other than sore tummy. If [the child] was in such danger you should have asked his doctor to meet with me and to write a specific script for me to have also in case his Ventolin ever ran out. Is this negligence on your part? I am very concerned that he is so sick in your care only. Or could it be a possible projection on to [the child]?
In my opinion, having heard the parties’ dispute about different views of the child’s state of health, this e-mail was a deliberate provocation by the father of the mother. I do not accept that at the time of this e-mail the father had no knowledge of the fact that the mother believed the child suffered from asthma. Further the father knew that the mother provided Ventolin for the child each time he stayed with his father. During the oral evidence I formed the view that the father contrived a reaction of being alarmed about the statement in the mother’s e-mail that sudden withdrawal of medication may be dangerous for the child. I conclude that the most probable scenario at this time was that the father knew the period of relative calm in his relationship with the mother was over. I conclude he decided to position himself, for what must have been obvious to him at the time, that there would be a forthcoming battle between the parents about the future care of the child.
At 12:37 on the 26th of December 2006 the father sent another e-mail to the mother. Aspects of the e-mail indicate that it was composed in fact on Christmas day and sent on the 26th. There is nothing to suggest how it was that such a vitriolic and attacking e-mail was necessary to be sent on Christmas Day or the 26th of December. I will refer later to the father’s assertion in the e-mail as follows:
Yet you continue to tell lies about me despite the warnings by Judges in both the Family Court of NSW and Waverley Court. In my reviewing the transcript of both proceedings, they evidence that you have been discredited as an unreliable witness. Your statements were refuted and you were shown to lie in Court. The consequence of your lying were clearly articulated by the Court and evidence in the successful outcomes in my favour in both proceedings.”
During the course of the e-mail, the father referred to “your continued erratic behaviour and bizarre storytelling about me”.
The e-mail is set out at pages 34 and 35 of the exhibits to the father’s affidavit. On page 36 is the mother’s reply. The mother’s reply in my view is a sensible, measured and appropriate response to what potentially amounted to “ranting” by the father contained in his e-mail of the 26th December 2006. It should be noted that the e-mail from the father dated the 26th of December 2006 has the subject “proven liar- [Douglas]”.
In paragraph 83 of the father’s affidavit he refers to the fact that the mother had not informed him nor was he aware that the child had ever been prescribed medication for “alleged asthma”. He had, however, known that the child carried a Ventolin puffer with him at all times in his schoolbag. With this knowledge and despite the father having the view that the mother was projecting on to the child illnesses of her own, in circumstances where the child had no illnesses at all of that nature, he did nothing. It was not asserted by the father nor could it be asserted that the 24th of December 2006 was the first time he became aware that there was any suggestion that the child suffered from asthma.
In paragraph 86 of his affidavit the father refers to the e-mail contained on pages 34 and 35 of his exhibit GB-1. In so doing there appears to be no recognition on his part of the vitriolic nature of this e-mail, nor its inappropriateness.
In paragraph 87 of his affidavit the father said he was surprised by the sudden “about face” of the mother in her e-mail responding to his saying “[father’s name], it’s Christmas, give it a rest.” The father said he found this e-mail extremely disturbing. He then proceeded into what can only be described as theatrical submission for the balance of the paragraph.
In early January 2007 the father took the child to see a doctor and obtained a referral to Dr M, a paediatric respiratory specialist. The child saw Dr M on the 16th of January 2007 and a report was generated from that attendance. In the report, as it appears on page 38 of GB-1, the exhibit to the father’s affidavit, Dr M says:
In summary then, as far as I could tell, he has no current issue with asthma. He possibly may have had some asthma in the past. But as is usual, the natural history of asthma in boys is to improve progressively and often stopping around the age of 6 with no problems thereafter. I have tried to reassure his dad that there is no objective sign of trouble at the present time and that he does not need any regular medication however it would probably be a reasonable thing to have some Ventolin around just in case he needs it. I would be very happy to see him again at any time if the situation is changing but I think it is unlikely. Many thanks for asking me to see him.
The worrying aspect of this report is that all of the history was provided by the father upon which Dr M relied. At page 39 of the exhibits to the father’s affidavit he attaches a copy of a handwritten letter addressed to himself from Dr N dated 19th of June 2007. The father in his affidavit says that this letter was provided to his solicitor by the mother. This letter advised the father that the child had “continuing asthma which unquestionably requires Seretide spray to maintain good lung function.” The letter goes on to say, “any cessation of this medication (Seretide) will cause his asthma to relapse.”
At paragraph 92 of the father’s affidavit, he relays a conversation which he says took place between himself and Dr N. As Dr N was not a witness in the proceedings, there is little weight that I can give to the contents of paragraph 92. On page 40 of the exhibits to the father’s affidavit he annexes a copy of a letter addressed to the mother from Dr N dated the 22nd of March 2007. Dr N reviews his original impression that the child has “persistent asthma.” He went on to say, “His asthma is at worst episodic and therefore does not require daily or twice daily Seretide”.
On the 17th of May 2007 Dr R, a doctor in the same practice as Dr N, saw the child at his mother’s request. Part of the history that Dr R noted was as follows: “Ceased Seretide about four weeks ago.” This episode occurred the day before an altercation involving the parties and which led to the mother making a complaint to the police about the father’s actions.
The father on the 23rd of May 2007 attended upon Dr R to discuss the child’s asthma. On the 24th of May 2007 it seems that the child was again seen by Dr R with his father. The report of that attendance indicated that the child was due to see Dr M in ten days’ time.

In order to provide evidence to medical practitioners it appears that the father obtained from the D Public School a letter from the principal dated the 29th of May 2007. The purpose of this letter was to establish that there was no record of the child ever suffering asthma at school. The letter attests as follows:
[The child] is entered on the [D] Public School register for students with medical problems as suffering from allergies to MSG, dairy products and penicillin. [The child] has only been to sick bay once this year on Friday 16 February as a result of an incident in Steyne Park when he was accidentally hit in the mouth with a cricket bat by another student.
The above evidence needs to be contrasted with the information provided to the Family Consultant as referred to in the Family Report at paragraph 63, and the fathers’ oral evidence that he had spoken to the child’s class teacher and was aware of this information.
On the 5th of June 2007, Dr M provided a further report in relation to the child. This report was addressed to Dr S, a medical practitioner at a different practice to that at which Dr N and Dr R belong. The report refers to the conflict between the parents about the symptoms reported in respect of the child and suspected asthma. The report suggests further testing. The report is set out at page 45 of the annexures to the father’s affidavit.
On the 13th of July 2007, Dr T provided a report to Dr N in relation to the child. In the report, he says as follows: “For some time, there has been some concern from [the mother] that [the child] is suffering from mild seasonal asthma.”
The report goes on to refer to further testing carried out by a Professor J. It then says:
“According to [Professor J], on the day these tests were performed, there is no objective evidence of acute severe asthma, with FEV1 not dropping within 20% of the baseline. However, professor [J] also mentioned that this is one single test in time and is not 100% sensitive or specific and he thought to complete testing we should consider doing an exhaled nitric oxide test.”
Dr T further says: “On examination he was well. His height was 140cm, his weight 42kg. His height is on the 97th percentile with his weight well above the 97th percentile for his age. He has a respiratory rate of 18 to 20 breaths per minute and I heard an easily audible expiratory wheeze bilaterally.”
Further in the report, Dr T says: “I think given the history and the review from Dr [Y] he does suffer from migraine. I also think that given the respiratory testing that he does not have moderate to severe asthma but may well have mild seasonal asthma with possibly exercise induced asthma.”
Dr T further recommends: “To be on the safe side I would recommend that [the child] be prescribed Ventolin and that he use it on an as needs basis when he feels wheezy or coughs persistently whether this is during the springtime or with exercise.”
On the 2nd of October 2007, a further report emanated from Dr T addressed to Dr N. This report is contained at page 48 of the father’s exhibits to his affidavit. Part of that report is as follows: “It seems that his migraine condition is pretty well controlled. I’m still not 100% certain if he does suffer from migraines at all. He has been on vitamin B prophylaxis for some months now. When I asked [the child] about his headaches, he denied his history of migraines to me. He mentioned that he occasionally gets short-lived headaches.”
It is important to note that this report commences as follows: I saw [the child] at my outpatient clinic together with his dad […] on Thursday 17th of September 2007. Unfortunately [the mother] was not present for this appointment. Things have been going well with [the child] for the last few months.
Later in the report, Dr T says: “My impression is that if he does have asthma currently it is on the very mild end of the spectrum.”
He goes on to say: “My recommendation would be to continue the same plan which is to have Ventolin nearby, particularly during periods of exercise. I would also currently recommend continuing the vitamin B prophylaxis.”…”I will be reviewing the family in three months’ time.”
Given the high level of conflict between the mother and father, particularly in relation to the child’s medical condition, and given my conclusion that the father’s ability to be constrained in what he might say about his feelings in respect of the child’s medical conditions in the child’s presence, I would be very cautious of any history given to Dr T by the child in the presence of his father and in the absence of his mother.
On page 49 of the annexure to the father’s affidavit, he includes a copy of a letter which he wrote to Dr T on the 3rd of November 2007. This seems to be in the nature of an e-mail. This e-mail was highly critical of Dr T and his opinion. The father said in this e-mail:
For you to continue to imply that he has ever had a migraine condition is patently absurd. Such an opinion is not supported by any person, whether professional, academic or familial (mine). That includes your own colleague Professor [Y] who freely admits that she had relied “a mother’s report” when making her initial recommendations now withdrawn. As a fact, I wish to see any claim to [the child] having migraines proven false for the fact of the upset, stress and the personal embarrassment that it causes him to be repeatedly refuted by adults. This while he does his best not to tell lies and always to tell the truth which I assure you is his intention. [The mother’s] sad actions notwithstanding. Moreover, his situation deserves more support than a casual “His migraine condition is pretty well controlled” when he’s entitled to know- and be believed- that he does not suffer from this debilitating disease.
The manner in which the father has written this e-mail and its’ subject manner adds weight, in my view, to the submissions by the mother that the father is a “bully”. It is hard to attribute any other rational motivation behind the letter other than the intention to “bully” Dr T into writing a report which suited the fathers’ cause and allowed him to prove in the proceedings heard by me that the mother has fabricated an illness for the child.
The reply from Dr T appears to be at pages 50 and 51 of the annexures to the father’s affidavit. It’s a remarkably polite response to the attack which was contained in the father’s email.
In the father’s affidavit he has referred to conversations between himself and different medical practitioners. The weight which I can give those conversations is minimal since none of the doctors were called to give evidence.
Another matter which would lead me to have concern about the weight to be given to the conversations recited by the father in his affidavit under this heading is the father’s apparent campaign to establish that the mother has been projecting on to the child her own medical condition and misreporting matters to the child’s medical practitioners. I would not be satisfied that the father would be capable of accurately reproducing conversations between himself and medical practitioners.
The only exception to the position stated in the previous paragraph is any conversation said to have occurred in the presence of the mother. In such circumstances the mother has the opportunity to admit or deny the content of the conversation.
In paragraph 104 of the father’s affidavit the following appears: “As appears from the letter from Miss […], [the child] has never suffered from symptoms relating to asthma whilst he has been at school nor is he listed as having asthma in the school medical records.”
A close look at the letter which appears on page 44 of the exhibits to the father’s affidavit and to which I have already referred does not support that conclusion by the father but it does highlight the intensity with which the father desires to establish that the child, contrary to the mother’s concern, does not suffer from asthma.
In paragraph 110 of the father’s affidavit, he says the following:
Following the hour long test, [the mother], [the child] and I attended upon Dr [T] who is the assistant director of clinical operations and specialist paediatrician at the hospital. Dr [T] informed me that he was contacted by [the mother] to consult in the care of [the child]. I believe Dr [T] was known to [the mother].
The father further went on to say that during the course of the interview with Dr T he was handed a copy of the report by Associate Professor Dr Y. He had been unaware by an attendance by the child on that medical practitioner. He read the report and then advised Dr T that he had never observed the child to suffer from a migraine. He said he had observed the child suffer from a mild headache once every 4 to 6 weeks. The father said that Dr T had asked the child how often he experienced his headache, and the child said once per month (after the father had noticed that he looked to the mother before he said those words). The father says that the mother then told Dr T: “He has a migraine 2 to 3 times each week.” The father then said as follows: “I am concerned by the way [the mother] openly contradicted [the child] in his response to Dr [T] which has the effect of confusing [the child] about his experiences. It has been painful for me to see my son exposed to such lies.”
The father says that on the 8th of August 2007 he received a telephone call from Dr Y and had a conversation with Dr Y. The impact of the alleged conversation between the father and Dr Y is to the effect that Dr Y relied totally on the evidence of the mother when forming her conclusions about the child suffering from migraines. The weight which can be given to this alleged conversation is again minimal.
Each of the parents has demonstrated seeking medical attention/ advice in the absence of the other parent’s knowledge or consent. Given the level of hostility between the parents I can well accept it would be a difficult matter for a medical practitioner to make a reliable diagnosis of the child’s medical conditions, particularly relating to whether he suffers to migraine and/ or asthma. On the one hand, the mother who has suffered from each of those illnesses in a debilitating sense from time to time must be seen as having a heightened awareness of the potential for her son to suffer from those illnesses and be concerned and even over concerned for his wellbeing at the first sign of any symptom which might suggest the potential for those illnesses. On the other hand, the father plainly takes the view that the mother is a liar and a manipulator and further, that she suffers from some form of psychological/psychiatric illness which causes her to project her illnesses onto the child.
For my part, I find that there is no acceptable evidence which would convince me that the child’s health is in any way at risk in the care of the mother. I accept that she will be a diligent and concerned overseer of the child’s health and I accept that she may well take a very cautious approach to any possible conditions he might suffer in the nature of asthma and/or migraine.
To the extent that it be suggested by the father that the child has never suffered from asthma, it seems to me that the evidence would suggest to the contrary. I do accept the mother’s account of the child’s health in relation to his asthma. The evidence of the medical practitioners, although perhaps clouded by the mother’s history, has been sufficient for them to conclude that preventative medicine has been appropriate for the child in the past.
The father in his affidavit deals with his concerns in relation to the dental treatment for the child between paragraphs 121 and 149. To some extent, I have touched on these matters earlier in these reasons. The father says that on the 14th of February 2007 he attended on Dr A for a routine dental examination. As the child was with him, Dr A conducted a routine dental examination of the child. To the extent that it is an underlying suggestion in the father’s affidavit material that Dr A simply helped himself to examining the child’s mouth without any request or expectation by the father that such an event would happen I reject that suggestion. It seems to me that Dr A examined the child only at the request of his father. The father’s version of the facts is that whilst with Dr A he telephoned the mother and informed her of the advice given by Dr A in relation to the child’s teeth. During the telephone conversation the father says that the mother objected to the dental treatment being performed by Dr A. The father confirms that he was advised by Dr A that Dr A had spoken to the mother who had object to Dr A treating the child and advised that Dr K should treat the child. The mother proffers a different version of how she learnt of the possible dental treatment and the steps she took to speak with Dr A. I accept the mother’s version of the facts in relation to this event.
The father says that he received information from Dr A that the child had not been to see Dr K for over two years. The father’s reply was as follows:
I was very alarmed to learn that [the mother] had not been taking [the child] to have regular checkups. In or around 2004, [the mother] and I agreed that she would be solely responsible for [the child’s] dental care. I agreed to do so following [the mother’s] suggestion as I did not imagine problems could arise with regard to [the child’s] dental hygiene. Her neglect of [the child’s] dental care came as shock to me.
The above quote stands in direct contradiction to assertions by the father elsewhere that he has been substantially involved in the care of the child since the child was a small boy. He says that he has been sharing the care of the child since the parties’ separation and that for most of that time he suggests that he shared equally in the care of the child (in terms of the time the child spent with each of his parents). For the father to say as at the 15th of February 2007 (as referred to in paragraph 124 of his affidavit) that he had no idea that the child’s dental hygiene had not been the subject of attention from a dentist for more than two years or inferentially that the child had any dental hygiene problems suggests that the quality of care which the father may have exhibited towards the child since 2004 is questionable and suggests lack of real interest in the child’s hygiene. It raises a concern in me that the father’s new found interest in the child’s health is motivated by the desire to score points in the battle between he and the mother in this court.
The father says that on the 22nd of March 2007 he ascertained from Dr K directly that the child was to undergo dental surgery under general anaesthetic at Hospital on the 12th of April 2007. The father complains that he had not been advised by the mother of this procedure nor inferentially had there been any discussion with him about it.
The father instructed his solicitors Paltos & Co to write to the mother about the child’s dental care. A copy of the letter sent to the mother by e-mail dated the 28th of March 2007 is contained at page 52 and 53 of the annexures to the father’s affidavit. The tenor of the letter is to complain about the procedure being done under general anaesthetic as opposed to local anaesthetic and also the delay in the removal of the tooth. The letter then goes on as follows: “In the circumstances of the urgency and the need for treatment for [the child’s] tooth which was highly susceptible to infection, that procedure was undertaken by Dr [A] yesterday and without the necessity of a general anaesthetic and only a local anaesthetic.”
The letter goes on to say that the father had instructed his solicitors to write to Dr K informing him that the father will not consent to the treatment taking place for the child as proposed by Dr K. The letter goes on as follows:
Our client requires Dr [K] to consult with Dr [A] as to the best way forward and that both you and our client be involved in that consultation process in relation to further dental treatment required for [the child], whether to be undertaken by Dr [K] or by Dr [A] and to be agreed by both of you beforehand.
In the face of this type of evidence the father presses for an equal shared parental responsibility order.
Notwithstanding that requirement, the father had of course proceeded without the consent of the mother and without her knowledge to have the child’s tooth removed the day before the letter was written. The letter smacks of an application of double standards by the father. It also illustrates the consequences to the child of his parents being unable to consult with each other and/or agree about his dental treatment. Again in the letter the father through his solicitors complains that the child’s dental care has been neglected by the mother. Such assertion raises a concern that if the father had been actively overseeing the day to day care of the child whilst he was with his father, why was he not alert to the position now being put forward that the child was in need of dental treatment between 2004 and early 2007?
In paragraph 131 of his affidavit the father said that as he had not received a response from the mother to the letter dated the 28th of March 2007, from his solicitors to the mother, he took the child to Dr A’s surgery on the 17th of April 2007. There he arranged for Dr F from that surgery to remove the child’s decayed tooth under local anaesthetic. The father says that after that procedure he telephoned the mother and informed her that Dr F had removed the child’s tooth. It beggars belief that the father could not have telephoned the mother before the procedure and advised her of what he intended to do. I can only assume that the father knew exactly what the mothers’ reaction would be and that she would seek to prevent the procedure being carried out. In the circumstance of this case there is a perversity in the fact that the father rang the mother, it seems shortly after the procedure, to tell her of the event. The perversity being, given the view I have concluded about the father’s bullying behaviour towards the mother, of the potential benefit which would have flowed to the father of hearing the mother’s frustration and anguish at the news.
On the 18th of April 2007 the father sent an e-mail to the mother, amongst other things, enquiring about dental care. The relevant part is at follows: “3. Dental- Can we discuss some options on how to deal with the next round of work necessary. Please get back to me by Friday.”
The e-mail is not only addressed to the mother but a copy is sent to the father’s solicitors. The contents of the e-mail must have been very upsetting to the mother given the information she had received from the father the day before. I can well imagine the mother would understand that the extraction of the child’s tooth on the 17th April was part of the father’s plan to “teach her a lesson” as he had threatened to do at an earlier time.
On the 20th of July 2007 the father says I made an order, by consent, that the parties attend on Dr K to determine the treatment the child required to be undertaken. The father says that an appointment was made originally for the 16th of July 2007 and then cancelled by the mother. A further appointment was scheduled for the 21st of August 2007. The father confirmed this meeting in an e-mail sent on the 20th of August to the mother.
On the 21st of August the father attended at Dr K’s surgery to attend a meeting with Dr K and the mother regarding the child’s dental treatment. When he got to the meeting he ascertained that the mother would not be attending. Dr K saw the father recommended that further x-rays be taken. These were taken on the 30th of August 2007. An appointment was made for dental treatment to be carried out on the 18th of October 2007. The father says that he was informed by staff at Dr K’s surgery that the appointment for the 18th of October 2007 had been cancelled as the mother had not paid her share of an invoice and was rescheduled for the 22nd of November 2007. The father said that he paid his share of the cost.

I am of the view, based on the evidence which I have recited in these reasons, that to impose an equal shared parental responsibility order on the parents in this case would bring decision-making to a grinding halt and debilitate the ongoing proper care of the child. The parties have shown an inability to agree about matters relating to the child’s health, aspects of his schooling such as attending school camp and attending religious instruction at school, aspects of his extracurricular activities such as his playing soccer. These disputes have placed the child directly in the conflict between the parties and I accept have been the cause of much anxiety for the child.
It is also a case where I have found the father has involved himself in family violence as defined under the Act. If I was satisfied there had been no family violence I would still not make an order for equal shared parental responsibility in this case as in my opinion it is entirely unworkable. I also believe that such an order would lead to further litigation between the parties.
I propose to make an order for the mother to have sole parental responsibility for the child, however I propose to require her to attempt consultation with the father and take into account his views when making decisions about important aspects of the child’s life. This is the best I think is manageable for the child in the circumstances of his parents’ conflictive relationship.

Consideration of Section 65DAA

In this matter I am not proposing to make an order for equal shared parental responsibility. As I see it that would not prevent me considering whether the child should spend equal time with each parent or whether he should spend substantial and significant time with a parent or something less than that.
The Family Consultant recommended that if the child is not to relocate with his mother to the USA then he should live with her and spend substantial and significant time with his father. She recommended a block period of five nights per fortnight. The recommendation was made in the context of the Family Consultant understanding the parties would remain living in close proximity to each other. The mother says that is unlikely to happen in the event of her being unable to take the child to the USA. She says, and I accept her evidence, that she will move to the Northern Beaches area of Sydney and live with her partner. In such circumstances she proposes the child spend most of his weekends each month with his father. She also suggests the father spend time with the child during the week by seeing him after school perhaps on one occasion each week.
If the mother is permitted to relocate the child to the USA then the practical realities of distance and cost of travel come into play and in those circumstances it is not possible to have the frequency of contact between the child and his father which might be possible should the mother remain living close to the fathers’ residence, as she does now, or closer to the fathers’ residence which a residence on the Northern Beaches might permit.
The recommendation of the Family Consultant seems to have arisen from her assessment of the family generally; however, there seems to me to have been some reliance on the opinion the Family Consultant formed that the child was indicating a preference or perhaps need at this time to spend more time with his mother. She also understood that the child did not really like the week about arrangement which was in place for his care.
In earlier considering section 60CC(3)(a) I expressed my reservation about relying on what might be a perceived preference expressed by the child.
The mother has no proposal to remain living close to the father’s residence. That would not prevent me making orders which would see the care of the child being shared equally between the parties. If I made such an order it would compel the mother to either find accommodation close enough to the father’s residence to make it workable or alternatively opt to have the child live with her for shorter periods of time. Given my assessment of the mother I do not believe she would agree to give up any time which she could care for the child.
In the event that I concluded the mother should not be able to relocate the child to the USA with her then I will need to revisit this consideration and I will do so later in these reasons should that be required.
As stated earlier I am proposing that the mother have sole parental responsibility for the child. In terms of considering the amount of time that the child should spend with his father, given that the mother’s proposal is that the child should live in America with her, if that is to be the order of the Court, the only viable arrangement for face to face time is for the child to spend virtually all of his school holiday periods in Australia with his father together with other times when the father might be able to spend time in America with the child. In addition, the child and his father would be able to enjoy communication via the Skype programme via telephone, and via email.

Conclusion on Identified Issues

Has the mother hindered the father spending time with the child?

I would have to conclude that during the period following the end of 2006 and until July 2007 the evidence is that the child spent more time being cared for by the mother than the father. Historically the orders made in November 2003 provided for an equal shared time for the child with each of his parents. The precise terms of those orders were changed by the parties to suit their changing work commitments and the necessity for overseas travel. The father’s evidence is that when the parties’ relationship deteriorated at the end of 2006 he requested the week about arrangement for the care of the child to be reinstated however the mother refused. There were some “tussles” between the parties about who the child should be with at times during this period and the father appeared to keep a good record of the number of days the child had spent with each of them which he referred to in an email in evidence. On one view then it would have to be said, particularly from the father’s point of view, the mother had hindered the father spending time with the child. I accept however, given the fact that the parties had abandoned the precise timing required under the orders of November 2003 the mother did have some basis for continuing what she said had been the arrangement for a couple of years.

What are the prospects of the father being able to communicate with the child by phone and other methods if the child is in the USA with his mother?

Weighing all of the evidence I conclude that provided the father approaches the communication with the child in a child focused manner and does not use the communication in a way to harm, harass or bully the mother then he can expect the highest level of co-operation from the mother. I accept the mother’s evidence that she will facilitate telephone, Skype and email communication between the father and the child. I also accept that the mother is sensitive to the child’s need to continue a close and loving relationship with his father and the father’s family. I conclude that if the mother is able to live in the USA with the child then a significant amount of pressure and anxiety is likely to be lifted from her shoulders and her tolerance levels towards the father are likely to be greater. She may need to exercise that greater tolerance to deal with the repercussions of the father’s anticipated disappointment/anger arising as a result of the decision of the court to permit the mother to relocate to the USA.

Has the father hindered the mother’s communication with the child whilst he is in the father’s care?

I accept the mother’s evidence that the father has prevented or failed to facilitate her communication with the child. Her complaint particularly relates to times when she has been overseas.

Has the father bullied and or harassed the mother in his dealings with her?

As I have set out elsewhere in these reasons I accept the mother’s evidence that the father has bullied and harassed the mother.

Is the mother to be trusted with supervision of the child’s health? Has she projected onto him symptoms of her own debilitating illnesses?

I do not accept that the mother has projected onto the child symptoms of her own illnesses. I do accept that the mother is likely, because of her own suffering, to be very vigilant in relation to the possibility the child may inherit from her some propensity to suffer from asthma and migraine in the way she has. Because she suffers from these illnesses I also accept that she could be in a better position that the father to identify possible symptoms of the illnesses.
The evidence suggests that the father had left to the mother the supervision of the child’s health until late 2006 or 2007 when their relationship disintegrated. I have no concern for the well being of the child by leaving the supervision of his health to the mother.
It should be remembered that in this case even if the child continues to live with his mother in the USA the father will spend significant periods of time with the child. He will therefore have an opportunity himself to observe the child’s state of health during those times. If there was any significant change in the state of the child’s health the father will have an opportunity to observe that and if he thinks appropriate raise any concerns he has with the mother.

Has the mother made false allegations of child abuse, domestic violence or inappropriate behaviour against the father?

I have already determined that my conclusion is the mother has not made false allegations of this nature against the father.

Does the mother have an underlying emotional or personality disorder?

I have determined that there is no evidence to satisfy me that the mother has an underlying personality disorder.

Would the current state of the parties’ relationship and ability to communicate make it appropriate to impose an equal shared parental responsibility order as envisaged under section 61DA of the Act?

I have determined that such an order would not be in the best interests of the child.

The Competing Proposals Together with the Advantages and Disadvantages of each Proposal

The competing proposals of the parties emerge from the Application and Response relied upon by each party. Those documents were identified by each party at the commencement of this latter part of the hearing before me. In broad terms the mother proposes that she would have the child living with her in the USA. She proposes that the child would spend all of his school holidays with the father in Australia and other periods of time with the father in the USA when the father was able to travel to the USA. She proposes that the father would have frequent and liberal time with the child via telephone, email and other methods of electronic communication. She sought no order in relation to parental responsibility for the child other than each parent be responsible for him when he is in that parents’ care.
The father’s application sought orders for the child to live with the parties on an equal shared time basis with the child changing household every seven days. He sought specific orders in relation to medical and dental matters for the child. He sought an order about telephone time for each parent with the child. He sought in the hearing before me an order for equal shared parental responsibility.
In submissions before me including statements made at the commencement of the last group of hearing days I was told by the mother’s counsel that her position was that if the orders she sought for the child to live in the USA were not granted then she would alternatively propose that she live on the Northern Beaches area of Sydney with the child and that the child spend time with his father on three out of every four weekends together with a weekday afternoon. She proposed an equal sharing of the school holidays.
Each of the mother and father provided to the Court from their counsel a list of the advantages and disadvantages of each party’s proposals. The mother’s list was marked as Exhibit M12. The father’s list was marked as Exhibit F6. In addition, the Independent Children’s lawyer provided a list prepared by her. That document was marked as Exhibit ICL1.
The mother’s list is compiled to consider the advantages and disadvantages of the child being permitted to reside with her in the United States. The benefits are said to be as follows:
·    Lessening of parental conflict;
·    Lessening of tension for [the child];
·    Living with the mother who will be happy, financially well off, physically and emotionally well;
·    Mother will make decisions for [the child] without him being in conflict;
·    Living in a stable environment and routine;
·    [The child] spending quality time with his mother;
·    [The child] spending extended holiday times with his father.
The disadvantages of the mother not being able to relocate with the child to the USA are listed as follows:
·    Continuation of parental conflict;
·    Continuation of tension for [the child];
·    Mother will get on with her life with [the child] but will harbour resentment for a long time;
·    Loss of regular weekly time with the father and his wife;
·    Loss of regular contact with his extended families;
·    Continuation of disrupted routine;
·    Living with a mother in a financially difficult position.
The father’s list of benefits and detriments is under two headings. Firstly, benefits of the child living in the United States of America:
·    Child experiences new culture and social environment;
·    Mother is able to pursue her career as she chooses.
Disadvantages (detriments):
·    Fracture in the nature of the relationship between the father and child and members of the father’s extended family;
·    Greater burden on the parties by reason of the travel for the child to spend time with the father;
·    Significant gaps between face to face contact with the father;
·    No certainty as to stability for the child;
·    Child will be required to adapt to an entirely new routine that involves significant adjustments to physical surroundings and loss of the day to day involvement with father which will take some time.

Under the heading ‘child remaining in Australia’ the father lists the benefits as follows:
·    Maintain close loving relationship with both parents and significant others;
·    Maintain stability and routine that child has been in since August 2007 orders;
·    Each party has ability to be involved in the child’s weekday and weekend activities;
·    No risk of loss of identity with Greek culture;
·    Child will remain in same school;
·    Opportunities for both parties to make continued efforts to resolve their parental conflict;
·    Both parties having input in relation to treatment of child’s health.
Under the heading ‘detriments’ the father lists the following detriments associated with the child remaining in Australia:
·    Risk of child’s relationship being adversely affected by parent’s ongoing conflict;
·    Risk of mother’s ability to parent being affected as asserted by her;
·    Risk of mother not being able to pursue her career as she would like as asserted by her.

The Independent Children’s Lawyer’s list of advantages is really a document that supports her proposal that the child should live with his mother and be permitted to live in the United States of America. The advantages identified by the Independent Children’s Lawyer are as follows:
There is no real plan by the parents to change the nature of the parental relationship so the current level of conflict will continue and may even increase. In these circumstances the advantages will be:
·    Reduction of the intensity of the parental conflict
·    Removal of [the child] from the centre of the parental conflict
·    Reduced scope for disputes about day to day parenting issues such as religion, health, diet, school excursions etc
·    Reduction of levels of stress which [the child] is currently exposed to on a very regular basis
·    Enabling [the child] to invest more energy into academic, sporting and other pursuits which ought to occupy the time of a nine year old rather than worrying about the next incident between his parents
·    Increased possibility of time with father and his family being “quality time” rather than a further opportunity for parental conflict to be played out
·    The mother’s arrangements in the USA would lead to a total change in the financial relationship between the parents
·    Possibility of the mother’s career progressing without any interference or intrusion by the father
·    Significantly reduced prospect of the parent’s business disputes contaminating their communications regarding [the child]
·    Significantly more financial security, career satisfaction, happiness, reduction in levels of overseas travel and emotional exhaustion by the mother which will improve the quality of parenting from the primary carer
·    The father enabled to invest more time in his own business endeavours, further financial resources for the father can lead to possibility of more trips to the US.
‘Disadvantages’:
·    Reduced face to face contact with the father and extended family in Australia
·    Reduced scope for the father’s involvement in [the child’s] schooling, sport etc.

I commend the Independent Children’s Lawyer on producing a list of advantages and disadvantages which focus very much on the child’s welfare rather than the parents’. I adopt all of the submissions of the Independent Children’s Lawyer in relation to the advantages and disadvantages of the mother’s proposal. In many respects the disadvantages which would flow to the child of remaining living in Australia would be reflected by the converse of the advantages listed by the Independent Children’s Lawyer.
It also seems to me that the advantages and disadvantages as recognised in the mother’s submission all have merit. Likewise, the advantages and disadvantages recognised by the father in his submissions in both the proposal of the mother and the proposal of the father highlight the same considerations with some slight variations and again appear to me to thoughtfully and appropriately set out the advantages and disadvantages.
Weighing up all those advantages and disadvantages of each proposal it seems to me that the advantages that flow to the child by being able to live with his mother in the United States outweigh the disadvantages and the disadvantages to the child of his mother not being able to relocate with him to the United States outweigh the advantages of remaining here in Australia.
For me, the matter which weighs in favour of the mother’s proposal in particular is the impact on the mother’s emotional state and financial state if she is unable to pursue her career in the United States of America. It seems to me that the potential to rob the child of living with a contented, industrious and financially secure mother is very high if the mother is unable to live in America. In making this determination I take into account the evidence of the mother that she would “get on with her life” if she was not permitted to relocate to the USA.
The father has a very strong personality, he is robust and from everything I could see is a very high achiever. I am satisfied that he would be able to continue to fulfil his obligations to the child even if the child lives in America. One of the disadvantages which has not been listed by any of the parties but which stands out for me is the potential impact on the father’s emotional state in the event of an order being made for the child to live with his mother in the United States of America. I am of the view that there are many indicators of the father being a controlling personality. There are many indicators that he is a high achiever who is used to getting his own way in life. It seems at least possible if not probable that much of the conflict between the parents arises out of the father’s sense of failure in respect of managing the relationship between he and the mother both emotionally and financially. There are indicators in the evidence that the father is quite angry about the breakdown in the commercial relationship between the parents. If I am right about the above conclusion in respect of the father’s emotional state, then it seems that he will continue to be angry about the breakdown in the parent’s commercial dealings into the future whether the mother lives in Australia or not. It also appears possible if not probable that the father will be angry if orders are made for the child to live in the United States with his mother. Given my conclusions about his personality I anticipate it is quite likely he will seek to appeal the decision of the court.

If the child is living in America with his mother it seems me that one of the great advantages that will flow to him is the shielding of his direct exposure to the continued conflict between the parents. If the parents have less opportunity to come into conflict, that provides less opportunity for the child to be exposed to that conflict.

Conclusion

In reaching my conclusion I again return to remind myself of the provisions of section 60B and have regard to that section as I reach a concluded view about what is in the best interests of the child.
Having regard to all of the evidence in the case and all the matters I have referred to earlier in these reasons I conclude that the orders which would best attend the child’s best interests are, in broad terms, those proposed by the mother. That is, orders which provide for the child to be able to live in America with his mother and orders which provide for the child to spend time during his school holidays in Australia with his father.
I am satisfied, particularly based on the evidence of a Family Consultant, that the child knows very well who his father is. I am satisfied that the child will not forget who his father is given the amount of contact which is proposed by the mother and which can be implemented in orders of this Court. The child in addition to being able to see his father on a face to face basis during school holidays will also be able to see his father on two occasions each year when the father anticipates he will be able to travel to America. On each of those occasions the child may be able to spend up to two weeks with his father and possibly more in certain circumstances.
Consequently I am satisfied that the child will be able to continue a meaningful relationship with his father whilst living in America with his mother. Although the child and his father will probably not see each other as frequently as they have during the period since mid 2007 they will I am satisfied still be able to continue their good and close parent/child relationship. There is the opportunity for them to spend quality time together during school holidays and when the father visits the USA.
I am satisfied that the mother residing in America will enable her to deliver a higher quality of parenting to the child than that which she could deliver if she was required to live in Australia because the Court would not allow her to take the child overseas.
I have accepted the mother’s evidence, that if she is unable to live in the United States then her capacity to reap financial benefit from the communications system she has developed will be considerably limited to that which would otherwise be available to her in Australia or USA work which she was able to cope with whilst living in Australia and visiting the USA at times when the child was not in her care. I accept her case that the financial difference is likely to be considerable. I also hold the view that requiring the mother to remain living in Australia and at the same time attempting to conduct her business affairs in the United States would be very onerous upon her and likely to be far more disruptive for the child in the future as times arise where she is required to be away more frequently than one week visits.
I am also concerned about the parent’s ability to communicate in the future. Unless and until the father’s attitude towards the mother changes so that she no longer holds the view that he is being motivated by his anger associated with the breakdown in their business relationship, the prospects of the parents being able to reasonably and sensibly communicate about their son are severely restricted. With the mother being in the United States it may be that she will be better disposed towards the father and be prepared to give him more of “the benefit of the doubt” in terms of his motivations in communicating with her.
Given my assessment of the father’s personality in this matter I think it is probable that he will seek to appeal my decision. Such a procedure is likely to be troubling and upsetting for the child. I hope that my assessment of the father’s personality is not so erroneous as to overlook a potential trait that he will never give up pursuing orders for the child to live with him on either a full-time basis or an equal shared time basis.
Having reached the conclusions set out herein I now return to the opening portions of these reasons where I spoke of the reluctance with which I approached these reasons in so much as they would require harsh things to be said about the father and possibly some unkind statements to be made about the mother. I would not want the parties or the reader of this judgement to walk away thinking that my conclusions meant that the father had no qualities which were admirable or of benefit to the child. That would be entirely incorrect. The father in his presentation to me showed many good qualities. He is obviously a hard working, energetic, athletic, ambitious and focused person. He evidences the ability to be charming. He was well groomed and striking in his appearance. After all there were probably many aspects of his presentation and personality which attracted the mother to a point where she chose to cohabit with him for some years. He has now married Ms C. I did not see Ms C; however, I read her affidavit and heard from the Family Consultant who did meet her. I understand that Ms C is a highly successful person in her own right. She presented well to the Family Consultant. The child obviously admires and likes her. I can’t imagine that she would have married the father without identifying many attractive aspects of his personality.
I also think it highly likely; if I am correct in my assessment of the father as a bully, a person who seeks to control others and a person who does not accept failure easily, that the father would not recognise that in himself. I accept that he would vocally abhor the practice of bullying.

The Court Orders

Given that I propose that the child live in America with his mother, the only possibility for face to face time with his father is during school holidays and during times when his father is in America. The parties and the Independent Children’s Lawyer all agreed that if the child was to live in the USA with his mother then the time for the child to spend with his father will be during those times. The parents also agree, in those circumstances, that during the long period of ten weeks, for the summer school holidays, the child should be permitted to spend two lots of one week with his mother in Sydney if she is present. The mother’s evidence is that she will be in Australia during part of that time at least to avail herself to spend some time with the child. She would like the child to be able to catch up with the maternal relatives during that time. The parties agree that there should be a fixed time for telephone calls between the child and his father if he is living in the USA but otherwise there should be freedom for the child to call his father at any time by telephone and also that he should be able to communicate with his father by email and/ or by Skype. I have anticipated that the father and the child would communicate by Skype at times arranged between them. To enable the Skype communication to occur both the mother and the father should be required to have hardware and software capable of handling that type of communication.
In terms of the proposed order for sole parental responsibility, as I have said earlier, I propose to make orders requiring the mother to consult with the father before making important decisions about changes for the child’s life.
So far as air travel is concerned between Australia and America to enable the child to spend time with his father the cost should be largely borne by the mother and the father should pay one third of those costs. This is something which the father has said he would do.
I propose to direct that the Independent Children’s Lawyer explain the orders of the Court to the child and answer any questions which he might have about those matters.
In the 2003 orders there were a number of injunctions. The Independent Children’s Lawyer submits that all of those injunctions should be discharged particularly if there is to be a sole parental responsibility order. I agree with that submission and propose to discharge the earlier orders. The father did not seek the continuation of these orders. In his application the father sought fresh orders in relation to the child and additionally that Order 21 of the orders made by Justice Boland on the 23rd November 2003 be discharged and another order made in its’ stead. The application of the father must reasonably be seen to seek orders overriding all of the orders of Justice Boland.
The Independent Children’s Lawyer submits that there should be additional time for the child to spend with his father prior to the mother removing him to the United States of America. I accept that submission and propose to make orders in relation to the same.
There were some submissions made by the parties in relation to the amount of time the father should be able to spend with the child in the United States. The father sought that the amount of time should be capped at three weeks. In my view, three weeks has the potential to be disruptive; however a cap at two weeks with a capacity in special circumstances to enable the mother to agree to a longer period would in my opinion better serve the best interests of the child.
Both the mother and father have agreed to contribute $1850.00 each towards the costs of the Independent Children's Lawyer. An order will be made for this to occur.
The mother’s evidence is that she will accompany the child to Australia for the purposes of spending his holiday time with his father. If during that time the child is to be cared for during the day by persons other than the father and at the same time the mother is available to care for the child then she should have the opportunity to do so. I propose to make an order to that effect.

Consideration of Any Other Order Which Would be Required

The Full Court guidelines, as referred to earlier, recommend the consideration by the trial judge of any orders which might be seen as necessary to serve the best interests of the child. In this case I have considered, and raised with the parties, the possibility of making orders which were different from those sought by each party. With the exception of the proposed orders referred to earlier in these reasons I do not consider any further orders are necessary.

I certify that the preceding three hundred and ninety three (393) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 7 March 2008

[2008] FamCA 165

7 March 2008

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