Bligh & James

FAMILY COURT OF AUSTRALIA
Bligh & James [2021] FamCA 211

File number(s): SYC 5661 of 2017

Judgment of: WATTS J

Date of judgment: 20 April 2021

Catchwords: FAMILY LAW – PARENTING – Final Orders – Whether a child be relocated to New Zealand – High conflict between the parties – Where the father has spoken of his distress and suicide – Consideration of the parent’s different proposals and s 60CC considerations – Orders for the mother to have sole parental responsibility (with consultation); the child to live with the mother in Australia; the child to have time with the father to be monitored for 12 months together with a suite of other prescriptive orders – Orders made relating to the costs of the single expert and the Independent Children’s Lawyer.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

Cases cited:
Bolitho and Cohen (2005) FLC 93-224

Godfrey & Sanders [2007] FamCA 102

Rochford & Fitzhugh [2019] FamCAFC 218

U v U (2002) 211 CLR 238

Number of paragraphs: 308

Date of hearing: 8 - 12 March 2021

Place: Sydney via Microsoft Teams

Counsel for the Applicant: Mr Ford

Solicitor for the Applicant: Diamond Conway

For the Respondent: Litigant in person

Solicitor Advocate for the Independent Children's Lawyer: Ms Karagiannis

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 5661 of 2017

BETWEEN:
MS BLIGH

Applicant

AND:
MR JAMES

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:

WATTS J

DATE OF ORDER:

20 APRIL 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.

Parental responsibility
2.Subject to Orders 3 – 7, the Mother have sole parental responsibility of the child, Z James Bligh, born … 2012 (“Z”).
3.Neither parent shall do anything to have Z known by any other surname than “James Bligh”.
4.In relation to any decision the Mother is required to make in relation to education, religious and cultural upbringing, health, changes to Z’s living arrangements that would make it significantly more difficult for Z to spend time with his Father and any other decision impacting upon the long-term welfare of Z, the Mother is to undertake the following actions before making such decision:
(a)The Mother is to provide the Father with no less than 14 days’ notice in writing of any such proposed decision; and
(b)The Mother is to consult with the Father with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the Father about any such proposed decision; and
(c)In the event that no agreement is reached between the Mother and the Father, the Mother shall make the final decision and within 14 days of so doing, provide the Father with written confirmation of the decision.
(d)All communication is to be by way of ‘Our Family Wizard’ or similar parenting application, if ‘Our Family Wizard’ is discontinued.

5.To avoid doubt, Order 4 applies to any proposal by the Mother to change the school in which Z is enrolled from time to time and additionally:
(a)Such notification to be given to the Father not less than 28 days prior (an extension of the normal 14 days notice period) to the Mother lodging an enrolment application with the new school;
(b)The notification to include the name and address of the new school and a brief outline of the reasons for changing the school; and
(c)The Mother shall provide the Father’s contact details in any enrolment at a new school.

6.The Mother shall keep the Father informed about Z’s consultations with any medical specialist, including:
(a)The date of any appointment for Z with the medical specialist;
(b)Any diagnosis in respect of Z’s health;
(c)Any treatment program for Z;
(d)Any medication prescribed for Z.

7.The Mother is to keep the Father informed of all ongoing medical issues and treatments being undertaken by Z and is to provide to the Father the names and addresses of any other practitioner with whom Z has consulted.
8.In the event of a medical emergency, the parent who has the care of Z is to notify the other parent as soon as practicable of the emergency, and is to authorise all health professionals and hospitals involved in the treatment of Z to provide such information to the other parent as the practitioner or hospital can provide by law.
9.The Mother and the Father are each hereby authorised to speak to any health professional, including any specialist, or allied health professional or mental health clinician or therapist who is treating Z and to obtain a copy of any report which may be prepared.
10.The Mother shall sign the appropriate authority at Z’s school, and at any school which Z may attend in the future, to authorise the school to provide the Father with copies of all material provided to parents.
11.The Mother and the Father are each hereby authorised to:
(a)Speak to the principal, year co-ordinator, teacher, and any other relevant staff from the school which Z attends, and to receive copies of school reports, newsletters and other information, documents and correspondence usually sent to or made available to parents and
(b)To register for any on-line or web program hosted by the school for parents of students at the school.

12.Within 14 days of these orders the Mother shall arrange an appointment for Z to attend upon Ms E for the purposes of therapeutic counselling; such counselling shall continue for a period of 12 months from the date of these orders. The mother is to provide to Ms E a copy of these Reasons for Judgment.

Time
13.Z live with the Mother.
14.For the purpose of these Orders:
(a)A school year ending in an even numbered year is an 'even year' and a school year ending in an odd numbered year is an 'odd year'.
(b)For the purpose of these Orders, the last day of school term is defined as the last day that students are required to attend school and the first day of school term is defined as the first day that students are required to attend school. School holidays shall be deemed to commence no later than noon on the day after school ceases and to conclude no later than noon on the day before school is to recommence.
(c)To avoid doubt, in relation to trans-Tasman travel, Z’s time with his Father is to be deemed to have commenced upon Z leaving Australia and to conclude upon Z leaving New Zealand.
(d)During short term school holidays in terms 2 and 3, changeover shall occur at noon on the day in the middle of the first and last day of the relevant school holidays and in the event that there are two “middle days” changeover shall occur at noon on the first of those two middle days.

15.Z shall spend time with the Father as follows:
School term
(a)In the event that the Father is in Australia, for two periods, each of up to one week during weeks 3 and 6 of the school term, unless otherwise agreed in written communication as prescribed by these orders, provided that:
(i)The Father provides the Mother with 14 days’ written notice; and
(ii)The Father ensures that Z attends school and any other extracurricular activity he would ordinarily attend.

Short school holidays
(b)During term 1, term 2 and term 3 school holidays:
(i)For the whole of term 1 school holidays;
(ii)For one half of each of term 2 and term 3 school holidays being the first half of the school holiday periods in odd numbered years and the second half of school holiday periods in even numbered years.

With Z to travel to New Zealand at these times. In the event that the father chooses and gives the mother 14 days written notice, the father may spend time with Z in Australia during these periods and additionally after the expiration of a period of 12 months, elsewhere overseas in accordance with order 46.

Long term school holidays
(c)In the 2021/2022 long term school holidays and each odd numbered year thereafter, the first half of the long term school holidays, commencing at noon the day after the last day of school in term 4 until noon on 7 January.
(d)In the 2022/2023 long term school holidays and each even numbered year thereafter, the second half of the long term school holidays from noon on 7 January until noon the day before the commencement of school in term 1.

Mother’s day
16.Notwithstanding anything to the contrary in these orders, in the event that Z is not otherwise in her care, Z is to live with the Mother from 9.00am on Mother's Day until the commencement of school the following day or 9.00am in the event that the following day is a pupil free day.
17.The Father is to deliver Z to the Mother's home at the commencement of her time.
18.In the event that Z would ordinarily be in the care of the Father and is not attending school on the day immediately following Mother's Day, the Mother is to return Z to the Father's residence at which the father is staying in Australia at 9.00am.
19.The Father's time with Z is otherwise suspended from 9.00am on Mother's Day until 9.00am on the following day.

Father’s Day
20.In the event that Z is not otherwise in his care and the Father is in the Commonwealth of Australia, Z is to spend time with the Father from 9.00am on the day before Father's Day until the commencement of school the following day or the commencement of school on the Tuesday in the event that the Monday is a pupil free day.
21.The Mother is to deliver Z to the residence at which the Father is staying in Australia.
22.The Mother's time with Z is otherwise suspended from 9.00am on Father's Day until 9.00am on the following day.

Z’s birthday
23.In the event that Z is living with the Mother on his birthday and the Father is in the Commonwealth of Australia, Z will spend time with the Father from the conclusion of school on that day until 7.00pm, with the Father to collect Z from school at the start of this time and return Z to the home of the Mother at the conclusion of that time.
24.In the event that Z is spending time with the Father on his birthday, Z will spend time with the Mother from the conclusion of school on that day until 7.00pm, with the Mother to collect Z from school at the start of this time and to return Z to the residence at which the Father is staying at the conclusion of this time.
25.In the event that the birthday falls on a weekend and the Father is in the Commonwealth of Australia, Z will spend time with the Father from 5.00pm on the day prior until 12 noon on the birthday in even numbered years and from 12 noon until 6.00pm in odd numbered years and with the Mother from 12 noon until 6pm in even numbered years and from 5pm on the day prior until 12 noon on the birthday in odd numbered years.

Changeovers
26.If Z is to travel to New Zealand to spend time with the Father, the Mother shall facilitate Z’s travel to New Zealand with the Father’s time to commence upon the commencement of Z’s flight out of Australia and the Father is to collect Z from City M International Airport or such other airport as may be agreed in writing by the Mother and the Father, communicating as set out in these orders.
27.If Z has travelled to New Zealand to spend time with the Father, the Father shall facilitate Z’s return travel from New Zealand to Sydney International Airport at the end of the time, with the conclusion of time to be when Z’s airflight leaves New Zealand.
28.If the Father has travelled to Australia to spend additional time with Z, changeover shall take place at the front door of the Mother’s residence (unless there is a specific order that the Mother deliver Z to the residence at which the Father is staying in Australia).

Conditions relation to Z spending time with the Father
29.The Father be and is hereby restrained:
(a)From keeping a gun at any premises where he spends time with Z, or
(b)From applying for a gun licence in New Zealand or Australia without first providing the Mother with notice in writing of his intention to apply for such licence, written notice to be given to the Mother not less than 28 days before lodging the application with the relevant authority.

30.Within 7 days of these orders, the Father shall sign an irrevocable authority to Ms F, psychologist and Ms G, family therapist, and within 7 days of engaging them, any new psychologist or family therapist, authorising the psychologist or therapist to advise the Mother forthwith in the event of any deterioration in the Father’s mental health or in the event that the Father becomes suicidal and to then forthwith provide those authorities to the Mother.
31.For the period of 12 months from the date of these orders:
(a)Upon both Z’s arrival to and departure from New Zealand, the Father shall be accompanied by at least one of the following persons:
(i)Ms H James (the paternal grandmother)
(ii)Ms J James (the paternal aunty)
(iii)Ms K James (the paternal aunty)

And at least one of these persons be present (face to face with Z) for the first 24 hours and thereafter some time each second day Z is with his Father
(b)During any period Z is to spend time with his Father in Australia when the Father comes to collect Z from the Mother:
(i)If the Mother desires to do so, she may engage the Father in a conversation about his wellbeing. The Father is to participate in that conversation.
(ii)If arising from the Father’s presentation the Mother forms a genuine belief that the Father may present a present serious risk to Z, she is not required to make Z available to spend time with the Father.
(iii)For a period of 12 months, and in the event that the Father chooses to spend time with Z in Australia during school holidays, the Mother shall be at liberty to employ a professional supervision service or arrange for an adult approved by her to drop in on Z each second day of the holidays to check on Z’s welfare and the Father’s wellbeing.

Communication
32.Each parent is to do all things necessary to ensure that the other parent is kept informed at all times, and in writing, of their current residential address and contact telephone number (which can be used by them in emergencies).
33.The Mother shall facilitate Z speaking to the Father by telephone, skype or facetime each Tuesday, Thursday and Sunday with the communication to take place between 6:30 pm and 7:00 pm Sydney time and if not contacted by Z, the Father may initiate communication with Z at these times.
34.The Father shall initiate and pay for the communication with Z referred to in these orders.
35.Each parent is to ensure that, in the event that Z is in their care, they will facilitate Z speaking with the other parent upon Z's request, nor will they prevent Z from otherwise communicating with the other parent.
36.All communication between the parents is to be by way of the parenting application "Our Family Wizard" or similar parenting application if “Our Family Wizard” is discontinued, to convey all parenting information between them including any communication required by these Orders.

Interstate Travel
37.Z is permitted to travel interstate with either parent during such times as Z is living with them or spending time with provided that the parent who intends to travel gives 14 days' notice in writing of this intention to the other parent, in addition to the following information:
(a)An itinerary which includes the dates and times of travel, and flight numbers if applicable;
(b)The name and address of any accommodation at which Z will be staying; and
(c)Contact details for Z while they are travelling.

Passports
38.Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Mother is to have sole parental responsibility to apply for, or renew an Australian Passport or travel document for Z namely Z, born in 2012, such passport shall be issued to the Mother without the consent of the Father and she is thereafter to retain possession of that passport and may release it to the Father for the purposes of any proposed international travel as provided by these orders.
39.Within 28 days of the date of these orders, the Mother is to collect Z’s New Zealand passport from the Sydney Registry of the Family Court of Australia and she is thereafter to retain possession of that passport, and may release it to the Father for the purposes of any proposed International Travel as provided by these orders.

Z’s flights between Australia and New Zealand
40.When Z is to spend time with the Father in New Zealand pursuant to these orders, the Father shall arrange for all flights for Z to travel from Sydney International Airport to New Zealand and for Z to travel from New Zealand to Sydney International Airport. The father is to arrange a flight which is as near as practicable after the commencement time of Z’s time with him and to conclude as near as practicable before the conclusion of Z’s time with his father.
41.The Father shall provide a copy of Z’s flight details to the Mother not less than 28 days prior to the date of intended travel.
42.The mother shall not be required to put Z on the flight from Sydney International Airport to New Zealand at the commencement of Z’s time with the father unless the mother has received from the father a copy of Z’s flight details for the return flight from New Zealand to Sydney International Airport and evidence that the cost of the flight has been paid in full.
43.The Mother is at liberty to accompany Z to and from New Zealand at her own expense but otherwise Z shall be permitted to travel as an unaccompanied minor.
44.The parent with whom Z is not living during that time will not seek an order for immediate return of Z in the event that the return of the travelling parent is being held up for a reasonable period by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling parent's control.
45.Costs of travel will be structured in the following way:
(a)The father pay all of Z’s costs of travel for 12 months and thereafter those costs are to be shared equally;
(b)The father pay all of his costs of travel;
(c)The mother pay all of the costs of her travel.

Other international travel
46.Apart from travel between Australia and New Zealand, after a period of 12 months, the parties shall be permitted to take Z out of the Commonwealth of Australia for holidays and for other short periods of time during such times as Z is living or spend time with them provided:
(a)The travelling parent will give the other parent as much written notice as possible of their intention to take Z out of Australia and in any event will give that parent no less than 28 days written notice of such intention.
(b)The travelling parent will furnish to the other an accurate itinerary to include the departure date and return date, the country or countries Z and the travelling parent will be travelling to, the approximate dates on which they will arrive and depart each country and a telephone number and address which they can be contacted in each country.

(c)Upon the Mother receiving written confirmation of the Father’s intention to take Z out of the Commonwealth of Australia in compliance with this order and upon the Father providing the itinerary, the Mother is to provide one of Z’s passports to the Father only for the purposes of the overseas holiday particularised in the itinerary.
(d)The parent with whom Z is not living during that time will not seek an Order for the immediate return of Z in the event that the return of the travelling parent is being held up for a reasonable period by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling parent's control.
(e)Z is not permitted to travel to a country that is a not a member of the Hague Convention save for transit.
(f)Z shall not travel to a country that the Australian Government Department of Foreign Affairs and Trade (or any subsequent reincarnation of that Department) identities as a country with the travel advice to the following effect:
(i)"Do not travel";
(ii)"Reconsider your need to travel "; or
(iii)"Conditions can change suddenly".

or any advices in similar terms.
(g)Within seven days of the date upon which the travelling party returns to Australia the passport which the Mother has provided to the Father pursuant to this order, be returned by the Father to the Mother and she shall hereafter retain possession of Z's passports.

Restraints
47.Each parent be and is hereby restrained from denigrating any member of the other parent’s family or household or speaking in a derogatory, critical, or insulting way about any member of the other parent’s family or household in the presence or hearing of Z.
48.Each parent shall use their best endeavours to ensure that no third party denigrates the other parent or speaks in a derogatory, critical or insulting way about the other parent or any member of the other parent’s family or household in the presence or hearing of Z and in the event that such conduct continues to occur, the parent shall immediately remove Z to a place where he cannot hear the conversation.
49.Each parent be and is hereby restrained from discussing these or any other legal proceedings with Z or showing him any document relating to any of these proceedings.

Costs
50.Within 3 months from the date of these orders, the parties shall make the following payments to Legal Aid NSW on account of the costs of the Independent Children’s Lawyer herein:
(a)As to the Mother, the sum of $6,823.00;
(b)As to the Father, the sum of $7,712.90.

51.Within 3 months, the Father pay to Legal Aid NSW the sum of $2,145.00 being one-half of the fee for Dr L to attend Court for the hearing in this matter, noting that the Mother has already paid the sum of $2,860.00 to Legal Aid NSW on account of these fees and will be claiming a credit from Legal Aid NSW relevant to her obligations in the preceding order.
52.Within 3 months the Father pay the Mother $5,750 being the amount that Mother paid for the Father’s share of the single expert report prepared by Dr L.

COVID-19 and Liberty to relist
53.Each parent is to do all things and sign all necessary documents to seek any required approval or exemption from the appropriate authority or authorities to enable Z to travel to New Zealand in accordance with these orders.
54.If there are any difficulties in respect of the implementation of the orders arising as a result of border problems with New Zealand as a result of the COVID-19 pandemic either party be at liberty to make an application under the Joint Practice Direction 1 of 2021 – the COVID-19 List.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bligh & James has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WATTS J
INTRODUCTION

Z’s intelligent and highly functioning parents, are in internecine conflict. That conflict has persisted for some considerable time and arises from the mother’s inability to deal with the father’s personality traits and to engage with the father in any regular alternate dispute resolution process.
The parties commenced a de facto relationship in 2008 and separated in September 2016. Both parties have been raised in New Zealand and moved between City M, City N and D Town (a rural area in the south island of New Zealand) during their relationship and consistent with their employment. The property at the centre of the current financial proceedings in New Zealand is in D Town.
In November 2014 the parties decided to relocate to Sydney due to the father’s promotion to a senior executive role at a large corporation.
The mother is health professional. She lives within proximity to her workplace at Suburb P and Z is enrolled at Q Public School.
The separation over four years ago occurred when the mother left the relationship. From her point of view, the relationship had become unhealthy and the father’s behaviour controlling. She told Dr L that she left because she did not want Z raised in an environment where that was normalised.
From the mother’s point of view the father reacted poorly to the separation and their relationship as parents has deteriorated over time and the legal battles have escalated. It is an undisputed fact in this matter that the father expended $300,000 on lawyers up until the time he decided to represent himself. The mother has also had lawyers acting for her and has not represented herself at any time (the father indicated that the mother had given him notice some time ago that she had expended $200,000). The mother has found a number of the father’s behaviours difficult to deal with including “incessant texting” and the volume of legal paperwork from his lawyers when he was represented as being overwhelming.
The existing interim parenting orders have been in place since June 2018 and, prior to the father leaving Australia in November 2020, involved Z spending five nights a fortnight with his father. There has been no face to face time between Z and his father since his father returned to New Zealand. Z regularly speaks to his father on FaceTime.
As a result of orders made by Rees J on 28 March 2018, the parenting and financial disputes of the parties have been bifurcated with the financial issues being left to the New Zealand court to decide. That dispute has been protracted, bitter and is yet unresolved.
At the centre of the final parenting applications is an international relocation dispute. The father has returned to live in New Zealand. The mother wishes to continue to live in Australia with Z, finish her medical training here and make Australia Z’s permanent home. The mother also seeks sole parental responsibility for Z subject to prior consultation with the father.
The father seeks orders for equal shared parental responsibility and that Z return to City M, New Zealand, where the father is commencing a new position with a government agency. If that order is made, the mother makes it clear that she will return with Z to New Zealand. In that scenario, the mother proposes that Z spend four nights each fortnight with the father. The father’s primary proposal is that Z spend week about with both parents during school term or alternatively, an eight/six night split of time in the mother’s favour.
Because of the high conflict between the parents, the applications that they each seek about holiday time, special days, extra-curricular activities and a panoply of other issues which have caused difficulties between them in the past are extensive and prescriptive.
Of concern, as discussed in detailed below, are statements made by the father in emails written on 8 October 2020, 25 November 2020 and 29 January 2021 in which the father speaks of his distress and of suicide.
Overlaying the difficulties in this case, at least in the short term, are the uncertainties about travel between Australia and New Zealand due to COVID-19, although neither party highlighted those potential difficulties in final submissions. As of 19 April 2021 quarantine-free travel is permitted between Australia and New Zealand.
PROPOSALS AND APPLICATIONS
Mother
The mother set out different proposals based upon three different scenarios in her Further Amended Initiating Application filed 19 February 2021. The first scenario dealt with what the mother wished if Z lived in Australia with the mother; the second, if Z lived in New Zealand with the mother and the third, if Z lived in New Zealand with the father and spent time with his mother in New Zealand.
The mother made it plain that scenario 1 was her primary case. She did not contemplate returning to live in New Zealand as her own choice, but would do so, if the court ordered Z to live in New Zealand. She also made it clear that she wholly resisted the third scenario but provided orders in the event that the Court found that it was in Z’s best interests for him to primarily live with his father. The full text of the mother’s Further Amended Initiating Application filed 19 February 2021 is set out in Schedule 1.
Father
The father filed a Response on 2 April 2020 which is set out in Schedule 2. At the commencement of the hearing there was an extensive discussion with the father as to what parts of the mother’s application he agreed to, what was contentious and what hadn’t been covered in the orders that the father had otherwise sought in his April 2020 Response.
Whilst many of the consequential orders were agreed, the father opposed an order for sole parental responsibility to the mother and sought an order for equal shared parental responsibility. The father opposed the mother’s application that an order be made that Z live with her in Australia, maintaining his primary application that Z be ordered to live in City M and live with him half the time.
Independent Children’s Lawyer
Prior to the commencement of final submissions, the Independent Children’s Lawyer (“ICL”) provided a Minute of Orders Proposed by the ICL (Schedule 3). The ICL supported the mother’s application for sole parental responsibility and for Z to live with her in Australia. As was discussed and developed during the hearing, the ICL proposed that Z spend significant periods with his father during school holidays in New Zealand and during school term in Australia if the father’s employment allowed him to come to Australia. Again, consistent with discussions during the hearing, the ICL proposed specific orders in relation to the father’s relatives in New Zealand monitoring Z’s time with him for 12 months; a provision for the father’s psychologist and therapist to provide information to the mother and a restraint on the father having firearms (which require a firearms licence) in his residence.
DOCUMENTS RELIED UPON
Mother
The mother was the only witness in her case. She relied upon two affidavits, the first filed 28 April 2020 and the second filed on 1 February 2021. There were extensive exhibits to each of those affidavits (the mother’s evidence comprises approximately 636 pages).
Father
On 5 March 2020, Wilson J made orders for the appointment with Dr L, an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) and for trial preparation including the filing of affidavits by 24 April 2020. The father had not complied with that order. On 17 December 2020 I extended the time for the father to file his affidavit until 5 February 2021. At the mention before me on 10 February 2021, the father indicated he was unable to tell the court if and when he would be filing any material in support of his application.
The father sought to rely upon evidence from ten witnesses:
(a)Affidavit Ms H James filed 10 February 2021;
(b)Affidavit Ms K James filed 10 February 2021;
(c)Affidavit Mr R filed 10 February 2021;
(d)Affidavit Mr S filed 10 February 2021;
(e)Affidavit Ms T filed 10 February 2021;
(f)Affidavit Ms U filed 10 February 2021;
(g)Affidavit Mr V filed 10 February 2021;
(h)Affidavit Ms J James filed 10 February 2021;
(i)Affidavit Ms W filed 2 March 2021; and
(j)Affidavit Ms X filed 2 March 2021.
Leave was required to rely upon the last six of those affidavits. Neither the mother nor the ICL opposed leave and leave was granted. Only Ms H James (the paternal grandmother), Ms K James (a paternal aunty) and Ms J James (another paternal aunty) were required to give oral evidence.
On the morning of the commencement of the hearing, the Court saw for the first time a draft unsigned affidavit the father had attempted to email during the weekend before the hearing of 56 pages together with annexures that took the document to 143 pages. The mother and the ICL on the second day, having had an opportunity to familiarise themselves with the contents of that material, did not object to the father relying upon that document.
The father also relied upon a report by his treating family therapist, Ms G who also gave oral evidence.
Overall, the father’s evidence comprises 185 pages.
In addition, the father had subpoenaed the principal of Z’s school, Ms Y, and Dr AA from D Town, New Zealand, to give oral evidence at the hearing. Ms Y did give evidence. The father during the hearing abandoned his intention to call Dr AA. The father had initially indicated that the evidence he would give would be about the ability of the mother to be able to train as a general practitioner in D Town and to eventually practice in the south island in New Zealand. At no time did the father obtain a proof from his general practitioner as to what the evidence was he expected his GP to give. The father’s decision not to call Dr AA was occasioned by the father moving from rural D Town in the south island to the city of City M in the north island.
Expert reports
The Court had the advantage of having a Child Inclusive Conference Memorandum dated 28 November 2017 (prepared by, family consultant, Ms BB) and a single expert report from Dr L dated 23 November 2020. Dr L gave oral evidence.
The parties and the ICL tendered various document which are set out in the list of exhibits.
SHORT HISTORY
The father was born in 1969 in New Zealand.
The mother was born in 1974 in New Zealand.
The parties commenced cohabitation in City N, New Zealand in April 2008.
The child, Z James-Bligh was born in New Zealand in 2012.
The parties moved to Sydney in November 2014.
The parties separated on 11 September 2016.
The father returned to reside in New Zealand on 17 November 2020.
CREDIT
Mother
The mother gave her evidence in a straight forward and thoughtful manner, generally without hesitation. I gained the clear impression that she was answering questions according to her memory of events.
The father in his written material asserts the mother made false statements about financial matters in the New Zealand property proceedings and in dealings with the Australian Child Support Agency but the father did not test the mother in respect of those alleged infidelities and I am not able to make a finding about the mother’s credit in respect of those matters on the information that the father has presented.
In attachment E to the father’s draft affidavit, he sets out matters that he says are non-exhaustive list of issues that go to the mother’s “integrity”. One example he cites is something which the mother wrote on her out-of-catchment enrolment form for Z at Q Public School on 20 July 2017. In that document she writes in response to a question about Z’s parents living apart, “an application for court orders relating to parenting is currently before the Family Court”.
It is agreed that the mother’s application was not filed until 30 August 2017. I accept that the mother as at 20 July 2017, had instructed her lawyers to file an application in the Family Court and documents were being prepared for that purpose. It was appropriate in response to the question asked on the enrolment form to alert the school to that fact, notwithstanding the words “is currently” should have been “will shortly be”. I do not accept that the mother’s statement on the enrolment forms strikes at the heart of her integrity as the father would submit.
The father highlighted to the mother the inconsistency in her statement in a preschool application in December 2016 that Z’s time was shared between his parents on a 50/50 basis and a statement that she made in a document relating to child support in January 2017 to the effect that Z’s time was being shared 65/35 with his mother/father. The mother’s explanation was that the first document was written in December 2016 when the parties were residing under the one roof but the second was written in January 2017 at which time the mother had resolved to leave the matrimonial home. I accept the mother’s explanation that the application to the Child Support Agency was made in that context.
Father
With certain exceptions, I do not believe the father deliberately set out to mislead the court. I do not accept the suggestion made by the father to Dr L, that his statement about suicide were possibly just for the forensic propose of gaining attention. I do not accept the father’s suggestion to Dr L that he had a teacher delete a photo of Z for security purposes. It is possible that the real reason was the father as at that date had resolved in his mind that he did not want Z to go to his current school but it is more probable that the father’s behaviour on that day was motivated by the father feeling that events were out of his control and he coped with the situation poorly.
For a similar reason, telling the mother on two occasion on 29 October 2017 that he had Z’s induction into Q Public School “in hand” was disingenuous.
Overall I find that the father was providing a version of events as he remembered them. The impact of the father’s evidence however was lessened by his obsession about the minutiae of particular events where, in his view, he had been wronged. Particular examples of the father’s alleged grievances are analysed below, where I have concluded that the basis for the father’s complaint either does not exist or where he must bear some of the blame for what had occurred.
Conclusion about credit
I do not make any general credit finding in favour of either parent.
DETAILED CHRONOLOGY
Both parties have provided extensive evidence about the history of the parenting relationship between the two of them. Dr L described it as a “complex narrative” and I accept that that is true. The examples that have been highlighted in oral evidence are not necessarily representative of the overall way that the parents have functioned with one another. By and large, the parents have been compliant with court orders. That said, the parties have been and are still in a high conflict parenting relationship.
The father was born in 1969 in New Zealand.
The mother was born in 1974 in New Zealand.
The parties commenced cohabitation in City N, New Zealand in April 2008.
The child, Z James-Bligh was born in New Zealand in 2012.
The parties moved to Sydney in November 2014. At that time, Z was two and a half years old. Z has lived in Australia since that time. The move was primarily motivated by an employment opportunity the father wished to accept.
The parties separated on 11 September 2016.
In October and November 2016 the parties attended five sessions at the CC Service to try and settle a parenting arrangement.
On 11 December 2016 the mother and Z went to New Zealand for a holiday. The mother had to cancel part of that holiday which involved a road trip because the father objected to Z partaking in them.

The mother asserts that on 18 February 2017 the father interrogated the mother about Z’s passport. She says he thrust his finger to her chest and raised his voice, the father denies that he aggressively thrust his finger at the mother. This is the only allegation of inappropriate physical contact between the parents.
The mother asserts that on 1 April 2017 the father unexpectedly arrived at the mother’s apartment to collect Z, despite agreeing to let him spend the night. A fortnight later, on Easter Sunday in April 2017 the father persistently called the mother while she was spending Easter with Z and left an angry voicemail. The father said he called repeatedly because he had not spoken to the child since the day prior.
On 16 June 2017 at the mother’s apartment, the father said, “Go and find Z’s passport and give it to me now.” She says the father refused to leave the apartment. The father agrees he asked for the passport but only after he was told by the mother to renew the passport earlier that week.
On 18 June 2017 the mother requested for changeover to occur at Z’s preschool instead of the apartment to avoid confrontation. She asserts the father ignored the requests and attended upon the apartment, phoned, texted and rang the doorbell. The mother says the father emailed her comments that he could see the lights on, leaving the mother to feel intimidated. The mother says she waited with Z inside the bedroom for 30 minutes before the father left. Changeover did not occur.
From June 2017 until November 2017 the parties were involved in conflict over Z’s school enrolment for the following year which is discussed in detail below.
The mother planned a holiday for two weeks at the end of November. The mother notified the father of this trip in August 2017. On 16 November 2017 the father withdrew his consent to the trip and alleged that the mother deliberately scheduled her holiday so she would have Z prior to the Child Inclusive Conference (“CIC”). This conflict is discussed below.
Both parties intended to travel with Z in December 2017. The mother asserts that on 2 December 2017 she messaged the father reminding him to bring Z’s passport. She also asked whether the father wished to spend time with Z on the weekend of 9–10 December 2017. She says the father declined to bring it until the mother provided him with adequate details of the trip, even though the mother had already done so. The mother asserts the father did not respond to her proposal. She says the father did not bring the passport. The mother sought orders for travel, however the father revoked his consent after the court’s cut-off for Christmas orders. The mother says she was forced to agree to the father’s travel schedule. The mother also asserts the father removed the furniture from the parties’ rental property in D Town, NZ, the property in which she intended on residing in with Z during their trip. The mother says had to reside with her family for the holiday.
The mother asserts that on 6 January 2018 the father undertook surveillance her house based on information he provided to the child support agency in August 2018 that accurately depicted what the maternal grandmother had done that day with Z.
The mother and Z were attending a camping trip on 26 January 2018. It was agreed that the mother would take Z on this trip and handover would occur on Sunday evening at 5.00 pm. The father tried contacting the mother on numerous occasions to find out where she and Z were camping.
On 27 January 2018, the night before the agreed handover, the father messaged the mother twice and phoned her requesting that she handover Z immediately. Z returned from the camping trip and was attending a sleepover with his friends. The mother says she developed a migraine and remained at the campsite. The father reached one of the mother’s friends by phone and upon discovering that Z was at her house having a sleepover, the father went to the house and removed Z. The mother says the father interrogated the mother’s friend as to what campground the mother was at and what her health concerns were. The mother’s friend felt intimidated and her two daughters hid in their bedroom for duration the confrontation. The father phoned multiple people at the NSW Parks Service in an attempt to contact the mother. The mother was awoken by the Park Ranger who said that she must call the father urgently. The mother says she returned the call and told the father that she did not appreciate his interference.
On 28 January 2018 she requested to pick up Z and enjoy the remainder of their weekend. The father refused.
On 3 February 2018 the father wanted a handover at 5pm that afternoon, which was not agreed to by the mother. The father attended the mother’s home at 5pm and tried to contact her for several hours after. The mother was out with Z and some friends. The father then called the police for a welfare check. This unfortunate incident is discussed in more detail below.
On 5 February 2018 the father caused his solicitor to send a letter to the mother regarding her camping trip at the end of January in 2018. The letter stated the camping trip, “was contrary to the interests of Z, was not child focussed and is jeopardising the prospects of the parties reaching an amicable agreement….Each party must endeavour to make Z’s interest their top priority when he is in their care, particularly in relation to his health, safety and wellbeing”. The letter also stated that the father should be the only person to care for Z if the mother was unable and that the father must be notified immediately if Z sustains any injury or illness.
On 19 February 2018, the father emailed the mother to tell her that he had sent Q Public School a parenting plan that set out which parent would collect Z from school on certain days. The father led the school to believe that this plan was agreed however the mother did not agree to it. The following day the mother contacted Q Public School and advised them she did not agree to the father’s parenting plan and that she was to collect Z. When the mother arrived at the school she learned that Z was removed from school early by the father.
On 27 February 2018, there was another dispute about which parent would collect Z from school. The mother texted the father stating she will pick up Z from school. Both parties attended pick up. The mother says she waited outside Z’s classroom. Z was in a sports class, however, was removed early to go to the office as per the father’s instructions. The principal Ms Y gave oral evidence (on an unsolicited basis) that there was a conflict between the parents at the school which sufficiently heated to have a number of teachers report it to her.
On 7 June 2018 interim orders were made that provided for equal shared parental responsibility and for Z to be with his father five nights a fortnight during school term and half of school holidays.
On 8 June 2018 the father wanted to amend the orders made only one day prior. The father continued to propose alternative arrangements until the mother agreed.
On 5 July 2018 the father attended the Sydney Court Registry office in order to collect Z’s passport. The Registry refused to release it as the orders did not include specific arrangements for its release. The father refused to leave the Registry. The mother’s lawyer was contacted approximately 10 times by both the father and his lawyer. The mother says she encountered considerable legal fees due to the father’s demands on this occasion. The mother says the father demanded that the passport no longer be held at the Registry, however, the mother declined as the father had previously withheld the passport from her.
Between 28 August 2018 and 30 August 2018 the father sent the mother two lengthy emails requesting alterations to the Father’s Day orders.
Between 31 August to 19 September 2018 the father sent the mother five lengthy emails seeking to rearrange the spend time weeks in September school holidays and to have additional time.
Between 14 September 2018 and 5 October 2018 the father sent five lengthy emails to renegotiate the Christmas holiday care arrangements. The mother says the father insisted that he have Z in the first half for the holidays as only 10 days of the 46-day holiday occur in 2018. The mother says Z was supposed to spend the first half with the mother as it was an ‘even’ year.
The mother asserts that on 5 November 2018 the father threatened to commence proceedings to remove Z to New Zealand if the mother did not agree to the father borrowing money against the D Town property. Ten days later on 15 November 2018, the father again threatened to commence proceedings to remove Z to New Zealand if the mother did not agree to the father borrowing money against the D Town property.
The mother asserts that on 30 November 2018, despite the mother meeting all obligations under the orders, the Sydney Court Registry refused to release Z’s passport due to the father’s strong objections. The matter was referred to the docket registrar and heard on 3 December 2018. Orders were made allowing the mother to travel with Z.
The mother asserts that on 11 December 2018 the father sought to rearrange the changeover venue from City M to City DD, insisting that Z fly to City DD unaccompanied at the mother’s own expense.
On 22 December 2018 the father attempted to renegotiate the orders via email.
On 27 December 2018 the father did not attend the agreed changeover with the child. When the mother contacted the father he said that if she insisted on collecting Z, she had to collect Z from him. The mother says she travelled 40 kilometres to collect him and bring him back to her accommodation. Due to the father’s actions, the mother asserts Z missed his sleepover with his friend, something the father was aware of.
The mother agreed to allow the father to stay at the D Town property in January 2019. During this time the father sold a large number of the mother’s personal belongings (holding sentimental value), such as the baby bassinet, without her knowledge or consent, and involved Z in the selling of the personal items, allowing him to select items to be sold, set the price and bank the money raised.
The mother asserts that on 11 April 2019, one day prior to the commencement of the school holidays, the father emailed her to retract his agreement of 22 March 2019, to her conditions regarding the holiday changeover. The mother says the father refused to comply with her request for handover on the Saturday, and insisted it occurred 18 April, two days earlier. The mother says she agreed to an earlier handover on 19 April 2019. On 19 April 2019 the mother texted the father to reschedule the changeover to the next morning as she did not feel well. The mother says instead of waiting for the mother to safely return Z, the father chose to make an 8-hour return trip to ensure Z was in his care.
The father breached Court orders by failing to return Z’s passport to the court registry on 28 July 2019. On 3 August 2019 the father returned the passport by giving it to the child at sports practice.
While the mother and child were in New Zealand during August 2019, the mother learned that the father changed the locks on the D Town property, knowing that the mother intended on residing there on her trip to New Zealand with Z. The mother says upon arriving at the D Town property, she discovered that the father had changed all the locks on the home without her consent. The mother says she and Z were locked out of the family home after dark in the middle of winter. The mother called and paid for a locksmith.
On or about 16 December 2019, the father attended the Court Registry to collect Z’s passport and the passport was not released to him. The father also sent a number of hostile communications to the mother’s lawyer and began challenging the date on which the school holidays were to start. The father filed an urgent application in a case which was heard and dismissed on 19 December 2019. An order was made for the father to pay the mother’s costs for that application but he has not done so.
On 11 July 2020 the mother’s lawyer informed the father that she would not respond to further correspondence as he was running up costs. This was following disagreements over time Z was to spend with the father over the July 2020 school holidays. The father did not want time in accordance with the 2018 interim orders.
In October 2020 the father emails the mother, communicating his intention to move to New Zealand. Around the same time the mother notices a decline in the father’s mental health.
On 8 October 2020 the father emails the Prime Minister of New Zealand, the Chief Justice of New Zealand and the President of the New Zealand Law Society seeking that each of them raise the content of his email to the appropriate person to ensure urgent help is provided for his separation dispute.
The parties attend interviews with Dr L on 2 and 3 November 2020.
By the time of his interview with Dr L, the father had taken the decision to return to what he referred to as his “permanent domicile” in D Town, New Zealand and even though the father had been in Australia for six years, he asserted to Dr L that he had never really permanently left New Zealand. As at the beginning of the hearing, the father had resolved to re-establish himself in City M, on the north island of New Zealand.
The father returned to New Zealand on or about 17 November 2020. The father told Dr L that he needed to return to New Zealand “and heal himself”.
The mother asserts that on 25 November 2020 in the father’s email to the case coordinator in Sydney Registry of Family Court and various emails that follow, where the father states he is leaving Australia to live in New Zealand permanently. On the same day the father also emails the ICL “Does this whole tangled mess have to be on the news, or escalated to the prime minister’s office, or have someone die or do something stupid and/ or drastic before common sense and basic decent humanity happen?”
On 29 January 2021 the father emails the ICL noting his frustration with the proceedings and says “No wonder [so] many dad[s] just walk [away] and commit suicide”.
There is still ongoing high conflict litigation in New Zealand around financial matters. In that jurisdiction, consent orders were made requiring the former matrimonial home in D Town to be sold. The mother thereafter took enforcement proceedings when the sale did not happen and a trustee was appointed for the sale. The mother tried to have the father removed from the house so the sale could happen. The father has subsequently taken proceedings to try and overturn the original consent order and he is waiting for a decision as to whether or not a stay will be granted in relation to the sale of the property pending his application to set aside the original orders.
DR L’S EVIDENCE
Dr L opined both parents were identified to have much to offer their much-loved son. He said the mother had maintained the role of primary caregiver and had effectively attended to his developmental needs in a loving and committed fashion. On the other hand he observed it was evident that the father had much to offer his son and the father was frustrated at the limitations to his active engagement in his son’s life. During Dr L’s assessment, the father shared his strong desire to maintain the numerous activities that he and Z had shared to date. Dr L commented it was evident that Z delighted in such interactions and would benefit from continued engagement with his father.
In Dr L’s view Z had been exposed to parental conflict and the unresolvable nature of the parents' divergent approach to the current family circumstances. He was well aware of the parents' attitude to the current circumstances. His father had shared his hopes and dreams with his son, together with his distress regarding the nature of the family circumstances. The mother correctly identified this as a significant emotional burden for Z given his tender age.
Dr L recorded in his report that he had not identified that Z had been exposed to abuse, neglect or family violence when in the care of either parent. Importantly, there was no indication of significant risk that Z would be a victim of murder/suicide at the hands of the father as alleged by the mother. As will be discussed, there was a further exploration of this topic during Dr L’s oral evidence.
Dr L indicated Z as having a close and loving connection with each of his parents. Z spoke of the importance of family in his life. This was reflective of his conversations with his parents. Z spoke of his desire to return to New Zealand given that the majority of his family resided there. This was identified to be both a reflection of his life experience and his communication with his father. When interviewed, Z's expressed wishes and expression of his life experience reflected his strong connection with his father. In his report, Dr L expressed the view that it was evident that he had been exposed to repeated discussions regarding his father's views as alleged by the mother. In this context, Z identified with his much-loved father. This was identified to be a function of the close bond which Z shared with his father. This extended to shared interests and experiences on the sports field, playing music together and numerous activities and adventures. This was supported by the father's comprehensive photo album shared via his laptop. Z’s expressed views are discussed in more detail below.
Dr L concluded Z will experience a profound sense of loss should he experience the sustained separation from either parent. He currently was anticipating this due to his father's plan to return to New Zealand. He was evidently distressed by such circumstances.
Dr L said the mother's assertion that she held serious concerns regarding Z's welfare in the care of his father was profoundly concerning. She asserted that she regarded Z to be at risk of murder/suicide given the father's emotional vulnerability. The father was identified by Dr L to have an Adjustment Disorder with Depressed Mood and Anxiety with associated feelings of helplessness and hopelessness, given the obstructions to a collaborative approach to Z's care. He had become obsessively preoccupied with legal issues and lacked the flexibility to respond in a more balanced manner. That said, he was not identified to be acutely suicidal. He was not identified to have a significant psychiatric history. At the time of the interview, he was not identified to have other risk factors such as substance use, impulse control problems or family violence.
Dr L opined Z will benefit from the co-location of his parents. Dr L correctly understood that the mother was committed to remain in Australia to pursue her career as a newly graduated health professional. Although she proposed providing stability for Z in his current educational and social setting, she also planned to relocate to rural New South Wales to pursue a career. Dr L opined the mother’s proposal necessarily limits the significant role of the father in Z's life. The mother, during oral evidence, made it clear that she did not intend to move for at least three and a half years. Dr L says that the mother’s proposal to ensure that Z had regular psychological assistance was most appropriate. Dr L was of the view that to enable the mother to initiate and maintain such an intervention it will be necessary for her to be provided with sole parental responsibility. Similarly, given the couple's inability to establish a common agenda regarding Z's education, sole parental responsibility will enable his education needs to be appropriately met. Given her training and experience as a health professional, she is also well-placed to ensure that his medical needs are appropriately met. That said, Dr L concluded the father should be informed of any such decisions and be invited to participate in relevant interventions.

The father's proposal for shared parental responsibility and shared care was not identified by Dr L as viable given the family's circumstances and the status of the parents' relationship. Although he supported the father's view that the family's relocation to New Zealand could offer significant benefits for Z, he observed this remains strongly opposed by the mother. As indicated, Dr L viewed that as most unfortunate but he went on to say “That said, the report writer could not identify justification to force the mother to return to New Zealand” (Dr L’s report dated 13 November 2020, paragraph 177). Dr L shared the mother’s views that the father's then proposed contact arrangements whereby Z spent extensive periods of time in New Zealand during school term as unlikely to be sustainable. In particular, it would be inappropriate for him to be removed from school on a regular basis to enable Z to spend time with his father.
Dr L made the following recommendations in his report at paragraph 179:
1.Sole parental responsibility for the mother.
2.For Z to remain in the mother's primary care.
3.For significant and substantive contact with the father to be re-introduced should the parents reside in the same region, either in Australia or New Zealand. The report writer did not identify the need for the father's contact with Z to be supervised.
4.Should the mother not return to New Zealand, Z will benefit from regular holiday contact with the father both in Australia and New Zealand. This is in accordance with Z's wishes. Twice-weekly FaceTime sessions to be maintained between Z and his father at an agreed time.
5.For the parents to utilise the 2Homes co-parenting app to enable more effective and respectful communication regarding Z's care.
6.Both parents should make an undertaking to not denigrate the other parent or members of their extended family. Both parents should make an undertaking not to discuss parenting matters with Z given the evident distress caused to him by being triangulated between his parents in this manner.
7.In the report writer's view, it is inappropriate for the mother to change Z's surname. Every effort should be made to always use the surname James-Bligh [I note there is no hyphen in Z’s surname].
8.For the father to be provided with all school reports and regular correspondence.
9.Z to commence psychological intervention as arranged by the mother. The father should be advised of such arrangements.
By the end of Dr L’s oral evidence, those recommendations remain substantially unchanged apart from issues around supervision and the frequency of Facetime sessions. I will discuss other aspects of Dr L’s evidence at various points later in these reasons.
MS G’S EVIDENCE
Ms G is an experienced child and family consultant holding a Bachelor of Social Work (Honours) degree and a Master of Laws degree. She was originally engaged to provide therapeutic services to the family. As indicated, that arrangement broke down after a short period of time when the mother stopped seeing her. The mother asserted that it was initially due to financial reasons and then because the father had formed a therapeutic relationship with Ms G. Ms G did not see Z. Ms G saw the father on 17 occasions between August 2018 and January 2020.
Pursuant to an order that I made, Ms G was provided a copy of Dr L’s report.
Ms G records that the father disputes Dr L’s diagnosis of him having “adjustment disorder with depressed mood and anxiety” and that the father is of the view that he has simply been subjected to intense amounts of stress, hurt and pain caused by the mother’s actions in relation to the sale of the former matrimonial home in New Zealand and what he alleges are her obstructive behaviours in relation to his time with Z. Ms G recorded that the father was distressed, confused and frustrated about why the parenting matter had not resolved.
In Ms G’s view, the father “copes poorly with feeling that events are out of his control and he will react to this in maladaptive ways, such as pursuing complex and protracted legal battles for property matters and engaging with the ICL in a perseverative and (legally) inappropriate manner, lacking a nuanced understanding of the so-called rules of engagement and what is possible and appropriate for the ICL to become involved in and what is not” (Ms G’s therapy report dated 9 February 2020, pages 1 and 2). Ms G expressed the view that many of these behaviours of the father are borne out of his frustration, despair and his fear of being marginalised from Z’s life. Ms G comments upon Dr L reporting that Z told him that his father is often “sad” and that his father often tells him that he wants to see Z more but his mother will not allow it. She reports that the father denies having these types of conversations with Z but he said it was rather Z who consistently asked for more time and it was Z who was sad and confused about why this was not possible.
Ms G observed that Dr L recorded Z as expressing a desire to spend more time with his father and also to spend more time with his extended family members in New Zealand.
Notwithstanding the fact that Ms G has not met Z, based on what the father has told her about Z’s emotional state, in August 2019 she wrote to Ms Bligh’s lawyers and suggested that she see Z. That offer was declined on the basis of Ms G’s therapeutic relationship with the father.
Ms G also gave evidence relevant to the father’s talk of suicide which I shall now discuss.
THE MOTHER’S CONCERN THAT THE FATHER MIGHT PERPETRATE A MURDER/SUICIDE WHEN Z WAS WITH HIM AND THE FATHER’S THREAT OF SUICIDE
In his report of 23 November 2020, when discussing his reinterview with the mother, Dr L says the following:
123.Finally, [the mother] raised concerns regarding [the father’s] mental health. She questioned whether he might be a risk to himself and to Z. She stated that she was not trying to be alarmist but had a concern that there was a risk that he would kill himself and Z.
124.That said, when the risk factors were explored with the report writer, she identified that [the father] needed to be in control. Nonetheless, he had never been suicidal or physically violent. He had never made threats to herself or to Z. There was no history of substance abuse. He was thus deemed by the report writer to be low risk.
125.[The mother] identified two instances of heightened concern. She identified [the father’s] extreme response following the release of the Interim Judgment. Nonetheless, Z had not been placed in harm at the time. She further focussed on-his illogical 52-page document related to the New Zealand High Court decision.
By the time of the interviews with Dr L, the father had on 8 October 2020, written an email to the Prime Minister of New Zealand, the Chief Justice of New Zealand and other persons in the New Zealand Justice Department about his belief that he had been the subject of psychological abuse and coercive controlling behaviour by the mother and the lawyers who represented the mother. That email contains a statement by the father in the following terms:
Whilst family violence against men is in the minority, it is still very much real. The mental impact of feeling powerless, the anxiety of not knowing when the next bomb will go off, or what the topic or matter that triggers it will be. The sense of hopelessness, and when coupled for actions that deny you access to you legal finical entitlements and legal access to your children, make it all seem all too hard, and that nothing you can do to stop it. And the knowledge that there are laws, and agreements reached, and other matters that mean this should not be happening make it easy to lose faith the systems and the world in general. I have never experienced stress and hopelessness like this before.
(Errors in original)
Dr L did not have a copy of the father’s email of 8 October 2020 at the time he wrote his report.
Two days after the date of Dr L’s report (and before it was released), the father wrote an email to the ICL and copied it to the mother’s lawyer and Ms G (the father’s family therapist) in which the following paragraph appears:
Does this whole tangled mess have to be on the news, or escalated to the prime ministers office, or have someone die or do something stupid and/or drastic before common sense and basic decent humanity happen.
As Dr L pointed out in oral evidence, the father had already escalated the matter to the level of the Prime Minister’s Office.
On 8 March 2020 I asked the father to comment upon that paragraph in his email. He said that the stresses that get created in litigation in family law were well-known and “in the literature”. He commented it was why there has been a call for a “royal commission” and that the suicide rate amongst men in his situation was really high. The father referred to “a guy that went up on the Sydney Harbour Bridge”. He said he was getting frustrated, that the mother had made promises to the Court to go to mediation but it had not happened and that there is a point that people can get so stressed. He claimed he was pointing out that he did not want to go down that path. He said it had happened to others, that he had been under severe stress and that that was clear to everybody. He also said it was his belief that the mother had deliberately behaved in a way that had increased his stress.
As already discussed, Ms G worked with the father over 17 sessions. She was asked about this and the third email that the father wrote that I will shortly discuss. She indicated that from her point of view there were no red flags having regard to her reading of the literature on murder/suicide. She opined the father’s ability to reflect upon his actions in respect of how he would improve Z’s life and reflect upon his behaviour that might reduce the impact of conflict on Z was a contra indicator to a risk that the father would harm Z. She said on her understanding of the literature, perpetrators of infanticide typically see their child as almost invisible.
On the issue of the father’s suicide, Ms G said she thought that was a separate issue. She commented that the father had a tendency to catastrophize and made it clear that towards the end of 2020, in her view, the father probably felt quite helpless and despairing and possibly suicidal at many points during the litigation process. She said the father at times lacks the filter to know how to present himself and to understand the nuances of how he should communicate. She pointed to the fact that the father had throughout the period that she had been seeing him, maintained contact with his psychologist. The father did not call her as a witness in his case. Ms G said that she got to the point of encouraging the father (and she believed his psychologist also encouraged the father) to return to New Zealand for his mental health. She thought that the father would acknowledge that his mental health has been precarious because of these proceedings. She referred to Dr L’s diagnosis (Adjustment Disorder with Depressed Mood and Anxiety which the father does not accept).
I don’t have any evidence from the father’s treating psychologist as to what her views are about the father’s mental status.
The father indeed made a decision to return to New Zealand at a time when I find that his mental health was precarious and that that was the primary reason for him taking that decision.
The email of 25 November 2020 was sent by the father at a time when the father did not have any clear indication from the Court as to when the Court might be able to accommodate a final hearing in this matter. My first involvement with the parties in this case was on 17 December 2020. At that time the matter was set down for the commencement of the hearing on 8 March 2021. The father was residing in New Zealand at that time.
Concerningly, the father sent a third email on 29 January 2021 addressed to the ICL. That email recorded that he was without legal help and that he believed the court process to be unfair and bias and that it rewarded the use of family violence and punishes children by taking a good parent away. The family violence that the father was referring to, is his view that the mother’s behaviour in failing to fully facilitate Z’s time with him and otherwise involve herself in mediation with him to reach a resolution of the parenting disputes, constitutes coercive and controlling behaviour by her that would fall within the definition of family violence in the Family Law Act. As I shall discuss below, in this case, that is not a proposition with which I agree.
The father’s email of 29 January 2021 goes on to say this:
I guess I will have to (if I turn up) cross exam [the mother] myself. I do not think her lawyers will like that !. (I do not like that either).
It is looking less and less likely by the day that I will be able to participate in this is in any meaningful way. I guess [the mother’s] comment to Dr L that I have been put under so much pressure, and find the situation so hopeless that i might be a suicide risk has some merit. I guess use of family violence (withholding financial entitlements, concision [I assume that was meant to be ‘coercion’], and control does work). No wonder some many dad just walk way and commit suicide.
I am sad for myself, and am also very sad and sorry for my son. He is missing me deeply (as I him).
(As per original)
These ideations by the father about him being a suicide risk were made in circumstances where the father had resettled in New Zealand with the familial support structure he has there, at a time when he was continuing contact with both his therapists in Australia, and in relation to the January 2021 email, was at a time when the father was aware that there would be a forum for him to present his proposals and prosecute his parenting case on a final basis.
Prior to Dr L commencing his oral evidence, he was provided with copies of the emails the father had written on 8 October 2020 to the New Zealand Prime Minister, the New Zealand Chief Justice and others; the email of 25 November 2020; and the email of 29 January 2021. Dr L gave the following evidence:
… firstly, whenever someone makes a threat of suicide or a reference to suicide that needs to be taken seriously. That was an issue that was addressed, particularly in the context of the mother’s express concerns about the risk of murder-suicide and concerns with regard to her interactions with the father and, indeed, and at the time of my assessment I identified that risk to be low. Now, the first thing to say about this is that one can never say there is no risk and, indeed, the assessment of risk has been called into question by Chris Ryan and Matthew Large, who in 2013 published a seminal paper in the Medical Journal of Australia identifying the problems associated with risk assessment for suicide and basically identifying that it’s very difficult to do accurately and certainly my experience in the Family Court is that these are highly stressful circumstances. People’s stress levels will change at various times and issues about the assessment of risk will also change at various times. Now, I note Ms G’s expressed views and also the views that she expressed in her report for the court. I’m respectful of those views. They are consistent with my own views.
(Transcript 10 March 2021, p.8 lines 4 - 18)
Dr L observed that the second email dated 25 November 2020 was sent by the father at 12.54pm in the afternoon and the first email was sent at 8.32am in the morning and commented that:
…so we’re not talking about a situation where … the father is in an abnormal mental state in the middle of the night, but rather … in the context of his day to day experience and dealings with the court.
(Transcript 10 March 2021, p.9 lines 29 - 31)
Dr L opined that the father was prone to intense emotion, intense expression of that emotion in a catastrophic manner and said that the father’s presentation and the content of his draft affidavit highlighted the father’s strong commitment and concern for Z which Dr L saw as a core driving force for him throughout the extended proceedings in different jurisdictions. Dr L opined that there was nothing in the father’s demeanour before the court (noting that this was a hearing conducted on a Microsoft Teams platform) that would indicate that he had a significant psychiatric disorder. Dr L confirmed his diagnosis of the father having an adjustment disorder which diminished his functioning due to a depressed and anxious mood. He predicted that a resolution of “unresolvable extended court proceedings” would improve the father’s mental health.
Dr L also opined:
…there is a significant difference between having a suicidal thought, which is my – or, you know, so thoughts of and feelings of helpless and hopelessness, which I think is what Ms G was referring to, there’s a significant discrepancy between that and plans of suicide, suicidal behaviour and each step up – up the ladder raises risk, and so even though Ms G did identify that there had been suicidality, it is not my understanding that there have been actual plans of suicide, actual suicidal behaviour, you know, admissions to hospital, a whole lot of things that would raise risk. Use of drugs and alcohol that have increased the risk of suicidality due to the lack of impulse control associated with this comorbid drug and alcohol problem.
(Transcript 10 March 2021, p.21 line 42 to p.22 line 4)
Dr L said that most people who have suicidal ideation and are possibly suicidal do not act on that and so even in high risk situations, most people do not commit suicide. He noted that, “suicide is a low prevalence disorder” and that in this case the most likely outcome is that the father would not commit suicide. Having said that, Dr L added that it was not possible to totally to exclude risk and it was not possible to totally exclude risk whether there is supervision or not supervision. Dr L opined that if there was a perfect storm where the father was under a huge amount of stress and things weren’t going his way, in that acute situation, particularly if he did have access to firearms, there would be an increased risk but he said the highest risk of suicide would be in the context of a suspension of contact where the father would develop a sense of hopelessness about the capacity of moving forward, feeling that the position in respect to Z was hopeless and unresolvable.
At the end of his cross examination of Dr L, the father put the following proposition to him:
[The Father:] Do you acknowledge that it was the mother who has raised the question of suicide first in your reports or the other references to it have been after the fact and perhaps I have been reactive and played the Devil’s advocate and using it as part of my method to speak up and get attention, please?
Dr L: Yes, I agree.
(Transcript 10 March 2021, p.31 lines 6 - 9)
The difficulty with the father floating that as an explanation is that it was not his explanation when I first raised with him the relevant content of the email of 25 November 2020.
Having assessed the father’s risk of suicide as low, Dr L did observe:
… the fact that the father has made threats and has put this on record to many people, and where it’s before the court, it’s difficult to argue that there should not be some response, because, clearly, if – in retrospect, if one was conducting a root cause analysis, after a critical incident and this was – had already been tabled, everyone would look at this and say, “Well, why wasn’t something done about it?”
(Transcript 10 March 2021, p.21 lines 23 - 28)
Dr L opined that it would be appropriate, as part of risk management, for the father to be ordered to provide an authority and direction to his treating psychologist and therapist to inform the mother from time to time if they had any concerns arising from the father’s mental status.

or
o to City M, both parents original home town where we have both previously owned homes, and where many friends , and most of both parties direct family currently live (3 child cousins, 8 aunties and uncles and 2 grandparents). Z has spent significant time in City M with family and friends over the years including most Xmas's since separation. [My proposed final orders are based on City M for the many advantages it has for Z in regards to access to both families and his familiarity to those homes.]
-If Z’s mother does not wish to come home to NZ, then Z should still have the an opportunity to spend significant and meaningful time with his mum.

PROPOSED ORDERS THE COURT NOTES
1.The following definitions for the purpose of these orders:
a."father" means the respondent, Mr James
b."'in writing" shall include by text message, email or any equivalent as agreed form time to time in writing by the parents
c."mother" means the applicant, Ms Bligh
d."father" means the respondent, Mr James
e."parties" or ·'parents" means the Applicant and the Respondent
f.“party” or “parent” means the Applicant or Respondent
g.“school holidays” means the public school holidays period as periods on official state education website for the state in which students are required to attends school.
h.'"Z" means the parties child (the "child") Z born … 2012, City O, New Zealand.

THE COURT ORDERS THAT:
2.That unless mutually agreed in writing (including any subsequent parenting plan agreed in writing and signed between the parties), or in the failure to reach agreement, the parties shall care for Z as set out in these orders.
Location
3.Z live in City M, New Zealand, being the town where most of both is his parents extended family live (cousins, aunts, uncles, grandparents).
Parental Responsibility
4.The parties have equal shared parental responsibility for Z. This order requires decisions about major long-term issues in relation to the children to be made jointly, and requires the parents to consult each other, and to make a genuine effort to come to a joint decision about such issues. Such major long-term issues include Z's:
•name
•health
•education (current and future)
•religious and cultural upbringing, and
•living arrangements, including when, and where

5.Each parent shall have responsibility for daily decisions about the care, welfare and development of Z while they are in that parent's care.
6.Without limiting each parent to make their own decisions, the parties agree to consult and then notify the following matters, before the occurrence, for the purposes of proactively managing, co-ordinating, and if possible mitigating any adverse impacts on Z:
a.Moving to a new house
b.Changing jobs
c.Change in co-habitation
d.Change in Z's medical providers
e.Change in extracurricular activities

7.The parents are to take al] reasonable measures to ensure that Z continues to be known by his legal surname of James Bligh.
8.That both parties shall be entitled to attend:
a.Any public or school social, sporting extracurricular or educational event or function involving Z, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasion. Both parties inform the other party of such events in a timely manner, and communicate to the other if arrangements need to be made, or are being made for Z; and
b.Any of Z’s serious health check-ups, immunisation visits, parent teacher interviews, and any event requiring parent participation and to receive copies of all reports, bulletins and information concerning Z.

Live with
9.That unless otherwise agreed between the parents in writing and regardless of whether the parents live in Australia or New Zealand, Z shall live with each party as agreed in writing and failing agreement as follows:
a.During school term
i. With the mother except for the following times periods with the father
l. In week one: From conclusion of school Wednesday until commencement of school the following Monday.
2.In week two: From conclusion of school on Wednesday until commencement of school on Friday.
3.[alternative: Alternating week about with Father from conclusion of school on [Wednesday] until commencement of school of following [Wednesday], and with Mother from conclusion of school Wednesday to commence of school the next [Wednesday]]

b.School Term 1, 2, 3 holidays
That subject to Easter, Special Occasions, Birthdays, and Summer and Christmas holiday period noted below, Z shall live with:
i.The Mother for the first half and the father for the second half in even numbered years, and
ii.The Father for the first half and the mother in the second half in odd numbered years.

c.The Summer and Christmas holiday period
That Z shall live:
i. Holiday period commencing even years:
1.With the father for the first week from the end of school until 1Oam Boxing Day, and from 5pm from half way of holiday period until 5pm 1 week before school commences; and
2. The Mother from I 0am Boxing Day until 5pm of the halfway point, and from 5pm I week before school commences

ii.     alternating for holiday periods commencing odd years.
d.Easter
That the Z lives with:
i.      The mother from 3pm or after school on the Thursday before Good Friday until 9am or commencement of school on Tuesday on even years.
ii.     The father from 3pm or after school on the Thursday before Good Friday until 9am or commencement of school on Tuesday on odd years.
e.Special Occasions
That Z lives with each parent as follows on parents' birthdays or mothers or Father's Day:
i.       With the parent related to the special day from 5pm the night before (or from conclusion of school) to 12 noon (or commencement of school) the day after the special day; and
f.Z's birthday
That on Z's birthday:
i.      From 12 noon the night before (or from conclusion of school if on a school day) to 12 noon (or the commencement of school) for the mother, and from 12 noon (or from conclusion of school) to 12 noon (or commencement of school) the next day for the father in even years, and
ii.      alternate years thereafter.

10.That in the event that the other patty who is caring for Z is unable to personally care for Z for a period that includes overnight, the other party is given the opportunity to personally care for Z during that period. In the event that the other parent is also not able to personally care for Z, that party will be advised of the identity of the person or persons who are caring for Z and will be provided with the contact details, including landline and mobile phone where Z can be contacted.
Handover
11.That for the purpose of handovers, unless otherwise agreed:
a.Father and or nominee shall be responsible for collecting Z from his school or the mother's residence at the beginning of his time and the Mother and or nominee will be responsible for collecting Z from school or the Father's residence at the commencement of her time.
b.For the purpose of clarity, if Z is ill and unable to attend school, the parent with whom Z awoke shall care for him, and handover shall still be at a time consistent to the end of the school day, being the other parent commencement time.

c.The care period for holidays shall commence at the conclusion of the last day of school (3pm), the changeover at halfway through the school holidays shall occur at 5pm on the day in the middle of the first and last days (or in the event that there are 2 middle days, changeover to occur at 5pm on the first of those nights), and conclude at the commencement of the first day back at school (9am).
Extracurricular activities
12.In the absence of agreement being reached between the parents as to which extracurricular activities Z is to be enrolled, each parent shall be at liberty to enrol him in one activity each per school term and the parent who enrols Z in such activity shall:
a.Inform the other parent in writing within 7 days of the enrolment of the details of the activity, including the name of the activity, address, website (if applicable) and details as to Z’s required attendance;
b.Supply the activity provider contact detail for both parents in the case of an emergency;
c.Meet the costs of that activity; and
d.Each parent will facilitate Z's attendance at any extracurricular activity in which he is enrolled during times Z is living with each parent to ensure his attendance at such activity.

Communication
13.That for the purpose of communication the parties agree they shall:
a.Promptly keep the other party informed as to his/her residential address, email address, telephone numbers and mobile telephone numbers.
b.Use a digital online app for separated parents (such as 2Houses, or Our Family Wizard) to share information and create a common shared calendar of care schedules, messages, school events, photos, and other items for Z;
c.Communicate by telephone or text for matters of an urgent nature;
d.Communicate by app, about day-to-day matters including arrangements for Z.
e.Not use Z to pass messages between them.
f.Let Z be involved with and make decisions regarding his toys and possessions.
g.Do all acts and things necessary to authorise Z's school to provide notices, information, newsletters, and reports directly to each parent;
h.Encourage and facilitate Z to have reasonable telephone and FaceTime (or equivalent) communication with the other parent whilst Z is in their care daily if requested by Z, but no less frequently than once every 2-3 days;
i.Ensure that any non-parental carers used are provided the contact details of both parents should an emergency arise, and one parent not be contactable.

14.That each party agree, that for the purposes of managing conflict and for resolution of disputes:
a.Both parents will attend and complete a certified course in post separation parenting with an accredited provider within 6 months of executing these orders, and attend to joint family counselling once a month for a period of 12 months following the making of these orders, as both parents recognise and agree that it is in Z’s best interest to approach their communication and care of Z in a collaborative co-parenting manner as promoted by these courses and family counselling.
b.That each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the Z and that each parent do all things necessary to ensure no third parties make critical comments about the other parent in the presence or hearing of Z.
c.That in the event of an issue becoming unresolved, the parents agree the dispute between the parents as to the welfare, care or development, and/or wishes of Z, will first be addressed by attendance at a family dispute resolution service with a view to attempting to resolve any such dispute.

Medical
15.Each party will, whilst Z is in their care:
a.Notify the other parent of any general practitioner, paediatrician and/or other specialist who treat Z, and provide to that person any authority necessary so that the parent can contact the person to obtain all information regarding the treatment and care of Z;
b.Use their best endeavours to use the same general practitioner, paediatrician and/or other specialist to treat Z regardless of whose care he is in;
c.Inform the other parent of any medication prescribed for Z from time to time and provide the medication and appropriate instructions for its administration at the time of any handover; and
d.Notify the other parent immediately and within 24 hours, in the event of a medical emergency involving Z, including but not limited to serious illness, accident or if he is admitted into hospital; and as soon as practical provide the other parent with all document and information in their possession in regards to the incident, including details of medical treatment and medications.

Travel
16.That unless mutually agreed in writing, each parent is permitted, during the time Z is living with that parent, to take Z outside New Zealand provided;
a.The travelling parent will give the other parent as much written notice as possible of their intention to take Z out of New Zealand for a short term, and in any event will give that parent not less than 14 day written notice of such intention.
b.The travelling parent will provide to the other parent an accurate itinerary to include the departure date and return date, the country or countries, or states, Z and the travelling parent will be travelling to, the approximate dates they will arrive and depart each country and a telephone number and address at which they can be contacted in each country.
c.The parent with whom Z is not living during that period will not seek an order for the immediate return of Z in the event that the return of the travelling parent is being held up for a reasonable period due to unforeseen circumstances as airline strikes or adverse weather conditions beyond the travelling parents' control.
d.Passport: The party that last travels with Z retain the passport and provides the same on request.
e.The parties' do all things and sign all necessary documents to keep Z's passport current at all times.

17.The parties agree that they will do all things necessary to give legal enforceability to these orders in any other country they mutually agree for Z to live in.
COSTS
18.That the mother pay the fathers costs of and incidental to these proceedings.
19.That the court refer the matter of overall legal practitioners conduct the NSW Office of the Legal Services Commissioner to review, and if appropriate determine consequences of the mother lawyers potential breach of their legal obligations as officers of the court, and its impact on the costs of duration of this separation dispute.

SCHEDULE 3
Orders proposed by the ICL
Parental Responsibility
1.The mother shall have sole parental responsibility for the long-term care, welfare, and development of the child Z James-Bligh born … 2012 (“Z”).
2.The mother and the father shall each have responsibility for Z’s day to day care, welfare, and development whenever he is in their care.
3.That Z shall live with the mother.
4.The mother shall keep the father informed about Z’s consultations with any medical specialist, including:
a.The date of any appointment for Z with the medical specialist;
b.Any diagnosis in respect of Z’s health;
c.Any treatment program for Z;
d.Any medication prescribed for Z.

5.The mother and the father are each hereby authorised to speak to any health professional, including any specialist, or allied health professional or mental health clinician or therapist who is treating Z and to obtain a copy of any report which may be prepared.
6.The mother shall notify the father in writing if she intends to change the school in which Z is enrolled from time to time and:
a.Such notification to be given to the father not less than 28 days prior to the mother lodging an enrolment application with the new school;
b.The notification to include the name and address of the new school and a brief outline of the reasons for changing the school;
c.The mother shall provide the father’s contact details in any enrolment at a new school.

7.The mother shall sign the appropriate authority at Z’s school, and at any school which Z may attend in the future, to authorise the school to provide the father with copies of all material provided to parents.
8.The mother and the father are each hereby authorised to:
a.Speak to the principal, year co-ordinator, teacher, and any other relevant staff from the school which Z attends, and to receive copies of school reports, newsletters and other information, documents and correspondence usually sent to or made available to parents and
b.To register for any on-line or web program hosted by the school for parents of students at the school.

Spend time arrangements
9.If the mother is living in Australia and the father is living in New Zealand:
Z shall spend time with the father as follows:
a.During mid-year school holidays:
For the whole of the term 1 and term 3 school holidays commencing on the first day of the school holidays until the Saturday before school resumes;
b.During the term 4 school holidays:
i.In 2021 and each alternate year thereafter, from the first day of the school holidays for a period of 3 weeks;
ii.In 2022 and each alternate year thereafter, commencing on the 3^rd January for a period of 3 weeks;
iii.For the purpose of this order, the term 4 school holidays shall be deemed to commence on the day following the last day when Z is required to attend school.

c.Other time
In the event that the father is in Australia, for a further two periods of up to one week per school term, provided that:
i.The father provides the mother with 2 weeks’ notice; and
ii.The father ensures that Z attends school and any other extracurricular activity he would ordinarily attend.

d.at such other times as may be agreed.

Changeover
10.If Z has travelled to New Zealand to spend time with the father, the mother shall facilitate Z’s travel to New Zealand for the commencement of time and the father is to collect Z from City M International Airport or such other airport as may be agreed in writing by the mother and the father communicating as set out in these orders.
11.If Z has travelled to New Zealand to spend time with the father, the father shall facilitate Z’s return travel from New Zealand to Sydney International Airport at the end of the time.
12.If the father has travelled to Australia to spend additional time with Z, changes over shall take place as follows:
a.If time is to start or end when Z will be attending school, change of care take place at the school;
b.If Z will not be attending school at the commencement of the time, changeover take place by the father collecting Z from the street outside the mother’s home;
c.If Z will not be attending school when the time ends, changeover take place by the mother collecting Z from the street outside the father’s home.

Z’s flights between Australia and New Zealand
13.When Z is to spend time with the father in New Zealand pursuant to these orders, the father shall arrange and pay for all flights for Z to travel from Sydney International Airport to New Zealand and for Z to travel from New Zealand to Sydney International Airport.
14.The father shall provide a copy of Z’s flight details to the mother not less than 28 days prior to the date of intended travel.
15.The mother shall not be required to put Z on the flight from Sydney International Airport to New Zealand at the commencement of Z’s time with the father unless the mother has received from the father a copy of Z’s flight details for the return flight from New Zealand to Sydney International Airport which confirms that the cost of the flight has been paid in full.
16.In the event that Z will be travelling as an unaccompanied minor, the father shall be responsible for payment of any fees for this service.

COMMUNICATION BETWEEN Z AND THE FATHER
17.The mother shall facilitate Z speaking to the father by telephone, skype or facetime each Thursday and Sunday with the communication to take place between 6:30 pm and 7:00 pm Sydney time.
18.The father shall initiate and pay for the communication with Z referred to in these orders.

Exchange of information
19.In the event of a medical or other emergency concerning Z, the parent who has care of Z shall notify the other parent by text message of the nature of the emergency and in the event that the emergency requires hospitalisation, the name of the hospital where Z will be treated, as soon as practicable and in any event, within one hour of the emergency having occurred, and that parent shall authorise the hospital and medical staff treating Z to provide information about Z’s condition by telephone or email to the other parent.
20.The mother and the father shall keep each other informed at all times of their residential address and contact details, including email address and telephone number for text messages.
21.The mother and the father shall each notify of any change to their residential address not less than 14 days prior to the change occurring, and within 24 hours notify any change to their email address or telephone number for text messages.

Restraints
22.That each parent be and is hereby restrained from denigrating any member of the other parent’s family or household or speaking in a derogatory, critical, or insulting way about any member of the other parent’s family or household in the presence or hearing of Z.
23.Each parent shall use their best endeavours to ensure that no third party denigrates the other parent or speaks in a derogatory, critical or insulting way about the other parent or any member of the other parent’s family or household in the presence or hearing of Z and in the event that such conduct continues to occur, the parent shall immediately remove Z to a place where he cannot hear the conversation.
24.Each parent be and is hereby restrained from discussing these or any other legal proceedings with Z or showing him any document relating to any of these proceedings.
25.That the father be and is hereby restrained:
a.From keeping a gun at any premises where he spends time with Z, or
b.From applying for a gun licence in New Zealand or Australia without first providing the mother with notice in writing of his intention to apply for such licence, written notice to be given to the mother not less than 28 days before lodging the application with the relevant authority.

26.Within 7 days of these orders, the father shall sign an irrevocable authority to his treating therapist, authorising the therapist to advise the mother forthwith in the event of any deterioration in the father’s mental health or in the event that the father becomes suicidal.
27.Within 14 days of these orders the mother shall arrange an appointment for Z to attend upon Ms E for the purposes of therapeutic counselling; such counselling shall continue for a period of 12 months from the date of these orders.
28.Within 3 months from the date of these orders, the parties shall make the following payments to Legal Aid NSW on account of the costs of the Independent Children’s Lawyer herein:
a.As to the mother, the sum of $6,823.00;
b.As to the father, the sum of $7,712.90.

29.By 5:00pm on Monday 15 March 2021, each party pay to Legal Aid NSW the sum of $2,145.00 being one-half of the fee for Dr L to attend Court for the hearing in this matter, noting that the mother has already paid the sum of $2,860.00 to Legal Aid NSW on account of these fees.

The ICL does not oppose an arrangement where the father’s family accompany him to changeovers that take place pursuant to these orders for a period of up to 12 months nor is she opposed to any requirement that a member of the father’s family be present during any time that Z spends with his father.

[2021] FamCA 211

20 April 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Procedural Fairness

Appeal

File number(s):	SYC 5661 of 2017
Judgment of:	WATTS J
Date of judgment:	20 April 2021
Catchwords:	FAMILY LAW – PARENTING – Final Orders – Whether a child be relocated to New Zealand – High conflict between the parties – Where the father has spoken of his distress and suicide – Consideration of the parent’s different proposals and s 60CC considerations – Orders for the mother to have sole parental responsibility (with consultation); the child to live with the mother in Australia; the child to have time with the father to be monitored for 12 months together with a suite of other prescriptive orders – Orders made relating to the costs of the single expert and the Independent Children’s Lawyer.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA
Cases cited:	Bolitho and Cohen (2005) FLC 93-224 Godfrey & Sanders [2007] FamCA 102 Rochford & Fitzhugh [2019] FamCAFC 218 U v U (2002) 211 CLR 238
Number of paragraphs:	308
Date of hearing:	8 - 12 March 2021
Place:	Sydney via Microsoft Teams
Counsel for the Applicant:	Mr Ford
Solicitor for the Applicant:	Diamond Conway
For the Respondent:	Litigant in person
Solicitor Advocate for the Independent Children's Lawyer:	Ms Karagiannis
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 5661 of 2017
BETWEEN:	MS BLIGH Applicant
AND:	MR JAMES Respondent
INDEPENDENT CHILDREN'S LAWYER Other

ORDER MADE BY:	WATTS J
DATE OF ORDER:	20 APRIL 2021