Hannigan and Sorraw

FAMILY COURT OF AUSTRALIA

HANNIGAN & SORRAW

[2010] FamCA 807

FAMILY LAW – CHILDREN – With whom a child lives – Best interests – International relocation

APPLICANT:

Mr Hannigan

RESPONDENT:

Ms Sorraw

FILE NUMBER:

SYC

2143

2007

DATE DELIVERED:

13 September 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Cohen

HEARING DATE:

23, 24, 25, 26 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms A Rees SC

SOLICITOR FOR THE APPLICANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr R Schonell

SOLICITOR FOR THE RESPONDENT:

Moira Ryan Lawyers Pty Ltd

Orders

That S born … December 2005 (“the child”) shall live with the mother.
That the mother is hereby permitted to remove the child from the Commonwealth of Australia and relocate her to and reside with her in New York State, United States of America.
That the child shall have Skype contact with the father for not more than 10 minutes at a time on 7 occasions in each fortnight at times agreed to by the parents in writing or if not so agreed between 6.00pm and 6.30pm New York time on 4 days each fortnight which the mother nominates in writing and on 3 days each fortnight which the father nominates in writing.
That at the father’s election or when Skype contact is not available, in place of Skype contact the child shall have telephone contact with the father at the time she would otherwise have Skype contact.
For the purpose of implementing order (3) each parent shall at his or her cost obtain and maintain the equipment and services necessary at their respective homes to enable Skype contact and shall forthwith notify the other by e-mail of their e-mail address and of any change in e-mail address by which contact is to be undertaken and notice is to be provided forthwith by a parent to the other parent on that parent learning in any particular instance of ordered contact that the child or the father will not be able to have access to Skype.
That for the purpose of implementing order (4) each parent shall at his or her own cost obtain and maintain a mobile telephone and mobile telephone service by which telephone contact between the child and the father is to be undertaken if landline telephone contact is not available and each parent shall forthwith notify the other of that mobile number and if he or she has a landline, the landline number and any change in any of these numbers.
That all contact provided for in orders (3) and (4) is to be instigated by the father who is to meet his own individual call costs for the purpose of contact.
(a) That the child is to spend time with the father in any 2 of the following periods in each year:
(i)from 9am in the first day to 5pm on the last Friday of her spring school break;
(ii)from 9am on the first day to 5pm on the last Friday of her mid-winter school break;
(iii)from 5pm on 23 December to 5pm on the day before the first school day of the following year;
(iv)from 9am on the first Monday to 5pm on the 4^th Monday of her summer school break;
(b)provided that the father gives the mother an itinerary for that time which so far as is practical nominates the names, addresses and telephone numbers of the places where the child will be staying, the telephone numbers by which he and the child can be contacted and the flight details and details of any other form of transport being used.
That for the purpose of implementing order (8) the mother shall at her cost deliver the child to Y Airport or such other place the father shall nominate which is not further from A than is Y Airport or the parties shall agree to in writing and;
(a)until the child reaches twelve (12) years of age the father shall at his cost collect her from the mother at the Airport or other place; and,
(b)after the child reaches twelve (12) years of age the father shall be at his cost responsible for colleting her or arranging for her collection from the mother; and
(c)The child shall at the father’s cost be returned to the mother by the father or pursuant to arrangements he has made at the place she was collected unless the parties otherwise agree in writing.
That for the purpose of implementing order (8), when the child spends time with the father during the spring, mid-winter or Christmas school breaks the father shall be entitled to spend time with the child in the United States or in another country which is a signatory to the Convention on the Civil Aspects of International Child Abduction known as the Hague Convention but not elsewhere provided that;
(a) the travel time for the child from Y Airport or such other place as the father has nominated or the parties have agreed to pursuant to Order (9) for the child’s collection by or on behalf of the father to her ultimate destination is not more than 8 hours; and,
(b)before the child attains the age of 12 years, unless the parents otherwise agree in writing, she is to be accompanied by the father on all flights or other forms of long distance travel after she leaves the mother’s care and before she is returned to her care.
That for the purpose of implementing order (8) in instances where the child spends time with the father during her summer break the father shall be entitled to spend time with the child in the United States or in another country which is a signatory to the said Hague Convention provided that before she attains the age of 12 years, unless the parents otherwise agree in writing, she is to be accompanied by the father on all forms of long distance travel after she leaves the mother’s care and before she is returned to her care.
That during periods when the child spends time with the father that she shall have telephone contact with the mother at the mother’s cost on not less than 3 occasions each week for not less than 10 minutes on each occasion at times agreed by the parents or if not agreed between 6pm and 7pm at the place where the child is located on each Monday, Wednesday and Sunday.
That for the purpose of implementing order (12) the father shall at all times keep the mother advised of the telephone number at which the child can next be contacted.
That if the father spends time with the child in any of her school breaks in any of the years 2011, 2012 and 2013 the mother shall cause to be paid to the father the cost of his and the child’s fares and accommodation incurred in spending time together in that year up to a maximum of $A6000.00 for any such year within 7 days of the father sending to the mother documented proof of the said cost but otherwise the father shall be responsible for all costs of travel and accommodation for the child and himself after the child has been delivered by the mother to Y Airport or such other place the father nominates or the parties have agreed to pursuant to order (9).
That for the purpose of order (14) the child’s 2010-11 Christmas school break shall be regarded as part of the year 2011, her 2011-2012 Christmas school break shall be regarded as part of the year 2012 and her 2012-2013 Christmas school break shall be regarded as part of the year 2013.
That for the purpose of the father spending time with the child outside the United States the mother shall provide a valid passport for the child to travel with the father in accordance with her itinerary and the father shall return the passport to the mother on delivery of the child to the mother at the end of each time he spends with the child.
That the child shall spend time with and have Skype and telephone contact with the paternal grandmother at such times as the paternal grandmother and the father agree during times where the child is to spend time with or have Skype or telephone contact with the father pursuant to these orders.
That the father shall within one week deliver to the mother or her Australian solicitor any current passport for the child whether Australian or United States that he presently holds.
That the mother is hereby authorised to act on behalf of both the father and herself to do all things necessary to remove and to obtain the removal from the watch list kept by the Australian Federal Police at airports and other points of egress from Australia of S born … December 2005.
That the mother shall do all things necessary to provide the father in a timely manner with copies of all written information she receives or is entitled to receive from any school the child is attending pertaining to her progress or behaviour at school.
That each parent is to keep the other fully and promptly informed of any significant injury, medical condition, disability or significant emotional condition affecting the child when she is in the immediate care of that parent and shall forthwith notify the other parent of hospital, dental, medical or other treatment by a health professional the child has had or is to receive while in his or her immediate care and shall authorise the persons or organisations which are to provide or have provided that treatment to give the other parent any information the other parent seeks from that person or organisation.
That the mother shall at all times keep the father informed of her residential address and the child’s residential address.
That on the child becoming able to utilise e-mail contact, she shall have unlimited contact with the father by this mode and for this purpose the mother shall obtain and maintain a computer and e-mail contact address by which the child can be contacted by the father and contact the father.
That costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC2143 of 2007

MR HANNIGAN

Applicant

And

MS SORRAW

Respondent

REASONS FOR JUDGMENT

These proceedings are essentially over the wish of the mother to live with the parties’ child in the United States of America. The father, who is the applicant, the mother and the child, S born in December 2005, all currently live on the South Coast of New South Wales; the father in U, the mother in P. The child currently lives with the father from Monday morning until about midday on Thursday and with the mother at all other times. Thus, she spends what is effectively equal time with each parent.
U is a beachside town about 450 km from Sydney. P is a smaller town than U and is about 4km inland of it. …. The latter town is virtually a satellite of the former town. ….
The father seeks orders that much the same arrangements as presently exist for the child be continued, although he wishes to extend his time with the child on Thursdays to 5:00pm. By way of compromise, he asks, if the Court is not willing to make the orders he primarily seeks, that the child be allowed to live in Sydney with the mother while maintaining the same division of caring time between the parents as currently exists. He would move to Sydney to permit this to be a practical compromise.
The mother wishes to be permitted to take the child to live with her in A, which is in New York State, about 2 hours by train from the centre of New York City and about the same distance from Montreal. Train is the usual mode of travel to New York City rather than car. A has a population of about 36,000 people. The father and his mother both claim that if the mother is permitted to do this they will not go to the United States to visit the child. It is part of the father’s case that this will increase the emotional distancing the child will suffer if the mother succeeds in her application.
The mother and father are both aged about 32 years. The father was born in Australia and appears to be of Irish or English background. He is an Australian citizen. The mother was born in the United States. … Her mother is Jewish and her biological father is a Native American. She is, by training and occupation, a school teacher. She was raised in New York from the age of two years by her mother. Her father and mother separated when she was about that age. She never saw or heard from her father until recently and believed that he must have died. Recently she discovered he is alive and lives in the United States. She is now in email contact with him.
Her mother has homes in two States but regards her home as California. The mother has a stepfather, Mr Sorraw, who lives in A and has a holiday home near a national park. Mr Sorraw’s parents and brothers live in A. The mother’s brother lives in New York City. He is an attorney. His mother visits him monthly. The mother’s maternal grandmother lives in Florida. The mother’s best friend, Ms B, lives in Oregon.
Briefly put, the father’s case is that the child is close to both parties and is doing well, so any change to the current arrangements for her care will most likely not advance her welfare because it will involve a distancing from one of the parties and a downgrading of the child’s relationship with that party to the child’s likely detriment. He says this as he does not intend to visit the United States if the child is permitted to be taken to live there by her mother. If the child remains in Australia, the mother will be able to spend as much time with the child as the Court will permit. Thus, he submits, it is in the child’s best interests that there be an order preventing the child being taken from Australia by the mother.
He further says that he, the child and the mother all have a settled life in the south coast area. He has a business which is about to become successful in U. He also gains an income from sports during the sporting season. The mother has employment as a school teacher. He submits that the current arrangements for the child’s care fit in with the situation created by both parties’ jobs, so the orders he seeks should be made. He further supports his stance by claiming that the mother’s personal characteristics are unsuited to permitting her to have more time with the child.
By way of a second best alternative he would be prepared to shift to Sydney if the mother prefers to live there rather than in the south coast area.
He says, if the mother is permitted to take the child to live in the United States, she might disappear with the child and, if he were to visit, he would be put at risk of arrest and imprisonment and psychological harm because the mother may make false allegations to the police or arrange a contract with a criminal to harm him. One thing should be made clear about the father’s case. It was said on his behalf that, as he genuinely believes he should not go to the United States, it does not matter that the Court might find such a belief to lack a valid basis.
The mother’s case is that she is, despite the orders which have imposed the current regime of care, the child’s closest attachment because she has largely been her principal carer. She asserts that she has never settled where the parties now live and wishes to return to her native United States and the family support she receives while there. Her case is otherwise adequately put in her counsel’s written outline of her case which can be conveniently repeated here. It is:
“8.At the time of birth of the child, the parties had been residing (albeit in different homes) for not more than 12 months on the far south coast of NSW.
9.In April 2006, the parties travelled to the United States of America. It is clear that the relationship between the parties had at times had its unhappy moments and the parties separated following a violent incident in the residence of the mother’s family.
10.The father returned to Australia in July 2006 and commenced proceedings pursuant to The Hague Convention for the return of [the child] to Australia. Orders were made on 11 December 2006 compelling the return of [the child] to Australia, and the parties have resided in the far south coast of NSW since that time.
11.The mother’s case is that it is unfair and onerous that by virtue of a place of residence chosen less than 12 months before the birth of the child that she should be compelled thereafter to live in a town and location that is imposed and unrealistic for her to reside in. The mother is of the view that the father’s attitude in compelling her to reside there is controlling and has no regard for her own happiness and rights to live where she wishes to live.
12. It is a mere accident that the mother finds herself compelled to live in a location chosen by the father. It is clear that the parties contemplated residing in locations other than [P] on the south coast and indeed the father at times contemplated moving to the United States of America. It is thus ironic and hypocritical that he now compels the mother to remain closely living to him and will not countenance the possibility of moving to a location of her choosing.
13.Each of the parties makes allegations against the other. Each asserts that the other has been violent, abusive and manipulative. The parties’ level of communication is poor and is punctuated by ill-will, lack of trust, threats, abusive emails and poor oral communications.
14.There is hardly any ability of the parties to cooperatively parent and the father’s application for equal time is inconsistent with any published research that would assert that an arrangement of care as identified even of the father’s case as one inconsistent with the welfare of a child long-term.
15.The mother wishes to relocate to the Untied States of America to be with her family. It is a natural desire, one which the father seeks for himself but seeks to deny the mother. It does not meet the mother’s needs to merely say that she can return at significant cost to the United States for holidays or that her family be expected to travel to Australia.
16.The father’s chosen profession should not be such as to compel the mother to live where she does not wish to do so.
17.The mother is an American citizen, has connections with America and has been, up until the parties’ separations, the primary carer of their child.
18.Any relocation application brings with it significant disruption and disharmony to the life of a child. The father can, if he wanted to, live in the United States and/or spend significant periods of time there. The mother is significantly unhappy in Australia and her most recent affidavit describes a violent sexual assault perpetrated upon her by someone whom she had held, to that point in time, in high regard. The viability of her continuing to live in a small community and work there has been thwarted and it is inconceivable that she could continue to remain living on the south coast even if she could.
19.In all the circumstances, it is the mother’s case that notwithstanding the dislocation that would come as a consequence of relocation to the United States, it is one that is nevertheless in the best interests of the child.”
I should add one minor element of the mother’s case which is not mentioned. She says she wishes to study at an American university to obtain her Master’s degree and advance her career as a teacher.
Before canvassing the facts which I regard as material or possibly material, I should say something about the credit of the parties and other witnesses. I find the mother to be a mostly credible witness. Largely, she seemed to me to be committed to telling the truth without exaggeration or bias in her perceived favour. Her mother, the maternal grandmother, impressed me in much the same way. The mother’s friends, Ms B and Mr K, gave me the strong impression that they were telling the truth with one understandable exception in Ms B’s case. None of the mother’s other witnesses were cross-examined, so their evidence should be accepted. Mr Sorraw, the mother’s stepfather, was not a witness in these proceedings.

The father impressed me with his lack of credit, as did his mother who was, additionally, one of the most hostile witnesses I have seen in some time. Her hostility, with her defensiveness and undue hesitancy in answering simple questions where she seemed to believe truthful and candid answers would harm her son’s case, as well as the lack of logic and reasonableness of some of her claimed attitudes, completely discredit her. The father’s other two witnesses were not cross-examined, so should be accepted as credible.
Where relating disputed facts involves any finding on them, I have borne in mind my assessment of the relative credit of the parties and their witnesses.
The parties met overseas in 2003. They commenced living together there then moved to Australia in 2004. The father had lived with his parents in regional New South Wales where they still live and own a farm. He attended boarding school in Sydney, then University in Victoria, where he obtained a BA. His father is now an advanced Alzheimer’s Disease sufferer. After finishing university the father went to live in Canada for a year then went to New Zealand where he continued to live until returning to Australia in 2004. He had never lived at or near U until he came back to Australia. He had lived for 4 or 5 months on the South Coast of New South Wales in R which is approximately 320 km from U, and in Western Australia, before commencing to live at W at first then, at the end of 2004, in U, both of which are on the far South Coast of New South Wales.
The purpose of the move to the South Coast was to commence an outdoor activities business there. There was no actual commitment to U, it was simply the place in the area where the parties could find suitable accommodation and establish an outdoor activities business.
Although the mother had no contact with her biological father, her mother made her aware of her native American heritage and introduced her, to a limited degree, to the culture of the mother’s father. When the mother was three years old her mother married Mr Sorraw who is also Jewish. She and her half- brother were raised as Jews in a household which upheld much of the Jewish tradition, although probably without being observant of the strictures of the more conservative or orthodox forms of Judaism. The level of their observance is very common in families, both Jewish and Christian, who are believers and identify very strongly with their religion while not being fervently religious. This may not be in great contrast to the father and his family. The only evidence before me about the father himself is that he does not appear to have a significant level of religious belief or commitment to a religion. No doubt his background is Christian. His family usually gets together to celebrate Christmas.
It is likely, on the evidence, that the mother has been actively involved in the traditions of her religion throughout her life and has a strong Jewish identity. She lived during her youth in Y where there is a large Jewish community. She does not seem to have neglected her Indian ancestry either. By the time she commenced university she was living with her mother in Arizona. There, she was active in Native American affairs and culture. She also studied Traditions and Cultures of Native People for her degree. At the same time, she maintained her Jewish identity and engaged in Jewish religious and cultural activities. On graduating, she became a teacher and for the first six months taught in a small town before returning to New York where she taught there. While living in New York, she firstly stayed in an apartment leased to her stepfather’s sister, then in an apartment owned by a family friend. No doubt the mother saw the availability to her of these two homes as a manifestation of the family support which it was.
The significance of her residency in New York is that while she was living there, close to the site, the attack on the World Trade Centre occurred. She said, and this was not challenged, she was deeply disturbed and troubled by it. As a result, she became more involved in Jewish religious and family activities. She has a large extended family in New York State. …. Most of these relatives are through her stepfather, but she has always been close to him and them.
Her half-brother and his fiancée live in New York and divide their time between there and G which is a very small village. Mr Sorraw owns a holiday home there, as does his mother. He works in Y but lives in A which is about 30 minutes drive to Y and a little less to G. The mother’s stepgrandparents live in G and New York and her two maternal uncles live in A and Y respectively.
When the mother visits New York, meaning New York State which includes all the above-mentioned places, she always stays with family members. She expects to continue family relationships in New York State if she goes to live in A and assumes she will continue to have the family support she has previously enjoyed from her relatives there as well as from her mother and maternal grandmother.
Senior counsel for the father made a point of the fact that Mr Sorraw is not on affidavit, the inference being that he and his family may not be as inclined to provide the support the mother expects from them. She relied on Jones v Dunkel (1959) 101 CLR 298 and submits that the failure to call Mr Sorraw which has not been explained infers that his evidence would not have assisted her on the issue of family support. I do not agree.
Her evidence that she would receive it was not really challenged except by pointing to the fact that the family members living in New York State were mainly not blood relatives and that her mother, maternal grandmother and best friend were spread throughout the United States and at various distances, some great, from A. The mother’s mother, maternal grandmother, Mr Sorraw and the mother’s brother have visited the mother and the child in Australia. When the parties visited the United States in mid-2006, her-half brother and maternal grandmother arranged her accommodation.
While they were there, the parties and the child were invited to numerous family events at Mr Sorraw’s home and his parents’ home. When the parties separated, the mother went with the child to live with her stepfather. These matters, with the fact that it was not suggested on behalf of the father that the mother had fallen out with her stepfather or his family and the support given to the mother by her half-brother in giving evidence in support of her case in these proceedings, satisfies me that there was no need to obtain evidence from Mr Sorraw to prove the likelihood of his support and his family’s support. After all, the mother had 9 witnesses other than herself and there has to be a limit on the cost of and time taken in proceedings like these. The number of her witnesses and the cost, difficulty and inconvenience to Mr Sorraw in giving evidence infers a valid excuse for the mother to omit to call him to give evidence. It seems to me that it is highly likely that Mr Sorraw and his family in New York State will be a source of significant emotional and practical support for the mother if she is allowed to live in A with the child. The mother’s mother lives in Arizona and Los Angeles and has been in the habit of visiting the mother and otherwise providing support for her, both material and emotional.
The school in New York where the mother had been teaching 6 days per week for two years was in an extremely disadvantaged area. At the end of the 2002/2003 school year, as a result of the difficult and stressful work she had been doing and her reaction to the September 11 terrorist attack on New York, she felt she needed a long holiday. She went to New Zealand where she met the father. The father says that the parties came to Australia in 2004 with the intention of settling here. This is an exaggeration and distortion of what really happened, as is clear from the mother’s unchallenged version of events. They left New Zealand in its late autumn, spent only two weeks in Australia then went to the United States where they stayed for about two months at Mr Sorraw’s holiday home and with other family and friends then after about 3 or 4 months returned to Australia for a short time.
While here, the father proposed marriage to the mother who accepted. It must have been at this time that the mother first formed an intention of staying for anything but a continuation of the holiday in Australia. To enable her to do so, the parties went to New Zealand for a short time to permit the mother to apply for and receive a visitor’s visa. On their return to Australia she applied for residency as the de facto spouse of the father.
She says, in effect, that she was not planning to stay permanently when she did this but was merely enabling a stay for an uncertain time. This, in my assessment, is probably true, but within a reasonably short time after this she must have decided to put down roots here.
After travelling for a while, the parties came upon the village of W where they decided to establish an outdoor activities business. The father borrowed $50,000 from his father to purchase equipment, and set themselves up. The parties purchased some vacant land there for $270,000. The mother contributed $105,000 and the father $3,000. The balance was borrowed from a bank on a 30 year mortgage. The mother says that this was purchased as an investment. The father says the parties bought it with the intention of building a home and settling in W.
In this instance, I think it is much more likely that the parties did intend to settle at W. It is likely that the mother discovered she was pregnant in about March 2005. By about mid to late March she would have, at least, suspected she was pregnant. From 3 March to 15 December is 41 weeks. The loan from the bank was a 30 year loan, so it is highly unlikely that it was a business loan which is what would have been appropriate if the land was no more than an investment. It is much more probable that the loan was a home loan. The above considerations point strongly to a commitment of the mother to settling in W with the father despite problems she realised she was having with him.
Nevertheless, I accept that the mother was, prior to the pregnancy, seriously considering a return to the United States. The mother had commenced to realise that the father had some character traits which indicated a troubled future for the parties’ relationship. On learning she was pregnant, the mother contacted Relationships Australia because of her concern about this. She asked the father to attend relationship counselling with her. His reply is a remarkable manifestation of the essence of the problem. He refused to undertake counselling, saying:
“I don’t have a problem. You are the one with the problems”
“You need to learn to understand men and women’s roles. In a relationship only one person wears the pants and I am that person, not you. If you would just do as I say, there wouldn’t be a problem.”
As well, the mother was concerned that the father had no steady work, was drinking alcohol to excess and using marijuana. He was also inclined to be highly critical of her, and to say very hurtful things about her. The fact that the father’s situation had changed due to the mother’s pregnancy should, in the mother’s mind, have moved the father to be more responsible and considerate of her and their expected baby’s needs, but it did not change the father’s attitudes or behaviour.
In my opinion, the evidence of Ms E is important. Ms Rees SC, the father’s counsel, suggested that it should be discounted because she never interviewed the father. She saw the mother in the course of her employment as a counsellor of expectant mothers who had been identified by the staff of a state health service as being potentially under stress or at risk. It was submitted that so many people in her position who come before the Court are biased in favour of women. That has been my experience, so I have been especially vigilant about this problem here and the fact that only one side of the story was told to her. At the same, time I am highly conscious that one cannot judge a witness by what others have done. The plain fact is that Ms E was not required by the father to be cross-examined. Her report is an expert report which has not been challenged. Her expertise is at a very high level because of her training, lengthy relevant experience and the confidence in her ability demonstrated by the appointments she has had. She is a psychologist with 25 years practical experience who has been an honorary lecturer to Masters Degree students in the counselling program at a Victorian University and has served for two years on the Psychologists Registration Board of Victoria.
She saw the mother for the first time in November 2005 in her capacity as a counsellor at P Community Health Centre. Between November 2005 and January 2008 she saw the mother 25 times. Her opinion is clearly stated. It is that the mother “was a victim in an abusive relationship with her former partner, Mr [Hannigan]”. Ms E has summarised her impressions and the history given to her from November 2005 to April 2006 which caused her to form them. I regard her impressions as highly likely to be accurate and also think it is equally likely that the history given to her by the mother, and on one occasion her mother, is accurate and given without any motive other than the hope and expectation that this would facilitate effective counselling. It is not necessary to reproduce more than that on which I rely. I accept it as accurate. It speaks for itself. It is:
“[The mother] reported that her pregnancy was not planned, however was within their long term plan to marry and have a family. Initially she described concerns that her partner was “naïve” about the realities of having a baby. He was reluctant to buy a washing machine, and other preparatory nursery purchases she wanted prior to having the baby.
She also reported feeling that he would not offer an adequate level of emotional and physical support after the baby’s arrival.
At the time of [the child’s] birth, [the mother’s] mother came to Australia from the U.S.A. I saw both [the mother] and her mother on January 20^th 2006 when [the mother] attended for her first counselling session following the birth of her daughter. Both women cited numerous examples of [the father’s] verbally aggressive behaviour toward them; [the mother’s] mother described having been drawn into having to defend herself against his hostility, and verbal attacks.
[The mother] divulged that she had been suffering such abuse and constant criticism for some time prior to attending for counselling support. When [the mother’s] elderly maternal grandmother visited the couple in February she too was the target of verbally abusive behaviour. [The mother] reported that she felt that this was particularly difficult, given her grandmother’s advanced years.
In March 2006 the couple moved from their rented property at [W] when water ran out at the property. Around this time, they placed the land which they bought on the market.
[The mother] continued to struggle within the relationship. She described developing a pattern of trying to ensure that “everything is alright” to avoid constant criticism.
My observation was that she constantly tried to appease her partner. Reference to file notes from April 6, 2006, show that at the time she was considering [the father’s] request that she assign her portion of the joint property at [W] over to him. At that time she was hoping that they could visit the U.S.A., she also wanted his agreement to have [the child] registered as a dual citizen of U.S.A. and Australia, something he had not been agreeable to previously.”
The similarities between the story related by the mother to Ms E and Ms E’s assessment of the situation and the facts which I accept as a result of the more direct evidence before me and my initial impression of the implications of that evidence are the result of more than coincidence. As I do not regard what the mother told Ms E, from her first consultation to that of 6 April 2006, as likely to be part of a concerted attempt by her to deceive this or any other Court about the true situation and do regard it as highly likely to be accurate, her story to Ms E and Ms E’s assessment of the situation do a great deal to confirm my initial impressions.
The most significant things that Ms E relates are, in the order which they appear in the above extract from her report, the lack of responsibility of the father in his selfish unwillingness to make proper provision for the arrival of the baby, the lack of emotional support he provided the mother, the use of the word “hostility” in relation to the verbal attacks and aggression, a word which, on my own impression of the father’s and his mother’s evidence, was, to me, clearly the most apposite description of their attitude to the mother and her mother.
The father’s mother was the most openly and gratuitously hostile witness I have experienced in some years. The hostility of the father and his mother in Court seemed to me to be characterised by the fact that they did not seem able to identify the cause of their anger. It must not be overlooked that the complaint of hostility by Ms E was about behaviour which occurred before 20 January 2006, well before any incidents which, on one view, might be said to have warranted some anger and, as against the mother’s mother, hostility.
The description of the mother as “trying to ensure everything is alright to avoid constant criticism” and that she “constantly tried to appease her partner” is significant. It really is a claim that the father was domineering, controlling, selfish and self-indulgent while being quite insensitive to the needs and feelings of the mother. This is quite consistent with what the mother said was his reply to her when she asked him to join her in undertaking counselling. The reference to “constant criticism” is quite germane to the case the father has conducted. Apart from relying on a claim that the child is doing well and that the mother’s plan will undermine her relationship with him, the father’s case consists virtually wholly of widespread and unjustified criticism of the mother as a person rather than as a mother.
It is quite striking that the mother told Ms E on 6 April 2006 that she was hoping that “they” could “visit the USA”. There is nothing to suggest that she was planning to go there and stay permanently with the child and that she was endeavouring to trick the father into thinking that she was planning on a visit as the father alleges. Moreover, if by this time the mother was planning to end the relationship with the father once she arrived in the United States, one must ask why she would be persisting with counselling which was primarily undertaken by the mother for the purpose of improving her relationship with the father.
I shall return to the part of Ms E’s report which deals with counselling which recommenced in January 2007.
Although the business was barely active in the non-summer months the father refused to look for alternate work. Although pregnant, the mother obtained work as a casual school teacher at a local School. The school is about 20km from W. Consistently with her complaints to Ms E, the mother says that during her pregnancy the parties’ relationship deteriorated because the father was very controlling, overbearing and highly critical of her. He was suspicious of actions which did not warrant it and consistently refused to purchase things the mother regarded as necessary to prepare for the baby’s arrival. The father displayed aggression towards the mother if she did buy anything for the baby. On the day of the mother’s return home from hospital after the child’s birth, the father was unsupportive and quite insensitive to her needs.

The mother’s mother was sufficiently supportive to come from the United States for the birth and to remain to support the mother. When she arrived she noticed that the parties did not have the things they needed for a baby so she went with the father to a baby’s store in a regional town, about 75 km away, and purchased a crib, clothing, nappies and blankets. While there, she noticed that the father was resentful of these purchases. He told her why. He said “this is too much baggage for my lifestyle”. The attitude this statement conveyed was consistent with his lifestyle until he had commenced the business and purchased the land; one of few ties. Yet, after the parties separated later, it was the father who kept the things the mother’s mother had purchased even though the child’s time with the parties was shared about equally.
The mother expected her mother and the father to be present at the child’s birth. The mother’s mother remained for the long labour. The father was frequently absent for lengthy periods. The mother’s mother noticed that he seemed to be resentful and angry when he was there and shouted at her. On one occasion, in a fit of pique because the mother’s mother asked him to stop shouting, he deliberately swept things off a table and left. To me, this incident was symptomatic of the father’s self-absorption, self-indulgence and lack of self-restraint.
When the mother gave birth she was advised to remain in hospital for a few days. The father kept asking her to return home before she should, yet when she did return he absented himself for most of the day. He returned home late in the evening and appeared to be adversely affected by alcohol and marijuana. His attitudes were consistent, however. It was a cool evening and when the father took the child outside and the mother asked him to dress her more warmly before doing so, he replied “I am her father, it’s my right to take her outside whenever I want”. The maternal grandmother noticed the father tossing the child in the air and told him he should not do that to a newborn. He responded with “It’s my right, I’m the father”.
The maternal grandmother had intended to stay for three months but left early because of the father’s behaviour toward her. While she was there she did the majority of cooking, cleaning and laundry, bought most of the family’s groceries and the supplies for the trips which were part of the outdoor activities business, cooked the father’s breakfast and made packed lunches for his clients, yet the father invariably behaved offensively towards her. He complained about her cooking in these terms: “You’re a bad cook. Don’t you know how to cook anything besides fucking chicken”.This did not inhibit him from asking her to buy him a boat. When she said she could not afford to, his retort was to this effect: “You’re a Jew aren’t you, I thought all of you Jews were rich”. This cliché is usually associated with anti-Semitism. The context and his turn of phrase confirm that he is inclined to such an attitude.
The mother’s mother was concerned about other matters she had observed while visiting on this occasion. One was that the father was absent from home much of the time although he was working little. He was drinking a lot and often smoked marijuana. He would smoke it outside the house but when the mother complained that he was smoking under the baby’s window his response was more proprietorial than fatherly. It was “It’s fine. It won’t kill her. It’s my right as her father to do as I please”. A focus on his proprietary rights rather than his fatherly duties characterise much of his behaviour involving the child.
An aspect of the father’s behaviour which concerned the maternal grandmother was that the father, who had been taught at the same time as the mother how to change nappies and clean the child, was in the grandmother’s opinion wiping and drying her pudendum too harshly. The mother’s mother informed the mother of her opinion. This may have influenced the mother’s attitude when, in July 2007, a GP, Dr O, made a mandatory sexual abuse report to the Department of Community Services (DoCS).
A more significant aspect of the father’s behaviour which the mother’s mother noticed was that, when the mother was breastfeeding the child, the father would stare angrily at the mother. This is consistent with resentment of the mother which is evidenced by other aspects of his odd behaviour towards her. In addition to what has already been described, at times he did things which seemed to be designed to upset the mother such as holding the child inappropriately or throwing her as much as 30cm in the air and catching her. The father would ignore the mother’s pleas for him to stop although she was at times moved to tears.
The mother’s mother’s commitment to the mother is illustrated by this visit as well as an earlier one in January 2005 when she came to visit the mother for 3 weeks and brought her mother with her. The mother’s grandmother visited again in February 2006.
In April 2006 the parties moved from W to P because of the lack of water at their W home. The business was not doing well and the father was grossly underemployed at the time. In discussions, the parties considered their options. The father told the mother he had been seeking jobs in the Australian ski fields and suggested the alternative of going to the USA in the northern summer; specifically California, which he felt gave him access to the surf and the snow as well as giving the mother access to universities. She had told him she wanted to return to the USA and study for a Masters Degree in Education. She envisaged that, if a decision was made to go to America so she could undertake further studies, they would be staying there for some years; at least as long as it would take to obtain her degree. Both parties must have realised that the minimum time to gain a higher degree would be two years.
The father alleges the mother tricked him into going to the United States on the pretext that it would be a short holiday, one of 10 weeks, after which they would return to Australia on 1 September 2006 so they could attend the wedding of one of the father’s relatives. He says she, at all relevant times, intended to remain in the USA permanently and to keep the child there against his will because he had always intended to return to Australia, not only because of the impending wedding but also because he had a burgeoning business and, in any event, was committed to living in Australia.
It is quite enlightening that the father’s affidavit, as is typical of it, contains a very superficial review of the facts. It seems to support his version of their effect, whereas the more detailed version supplied by the mother tells a different story.
The mother says that because the parties planned to live in the United States for some time, they decided to sell the W land. The father claims that the planned sale of the land was part of the mother’s deceitful attempt to get him to go with her and the child to the United States and there abandon him and force him to return to Australia without the child. He said he did not know the mother was planning to sell the land until he arrived home in January 2006 to find the mother and her mother speaking to an estate agent.
In fact, the land had been listed for sale with an estate agent at least by 17 January 2006 and was on that agent’s website. It could not have been part of a clever trick because, as its co-owner, the father needed to cooperate in any sale. It is not coincidental that, during the conversation in which the father asked the wife’s mother to buy him a boat he said, and I accept on balance what she claims he said when she refused this request, “We will be selling the property, that’s how I’ll make my money”. As the mother’s mother arrived in Australia in early December 2005 intending to stay for 3 months but left early because of the father’s behaviour towards her, it was probably in January 2006 that he had formulated the intention to sell the land. I cannot accept, even if the mother conceived the idea to sell the land before the father did, that this provides any support to the father’s claim that the mother had already planned to take the child to the United States and keep her there irrespective of the father’s consent.
What is also clear is that, by 13 May 2006, the father had decided to sell the business. He advertised it for sale on that date and continued to advertise it until 18 July 2006. The land was sold but the business was not. The father agreed that the child could have a United States passport. It seems to me that some of the evidence supports the mother’s claims that the parties agreed that they would remain in the United States for some time. Nevertheless, the tickets which were purchased were for departure from Sydney on 13 June 2006 and return to Australia on 1 September 2006. The father claims that this return was to permit the father to attend the wedding. The mother says that the tickets were of the type to which the return journey could be altered at little cost.
There is relatively unambiguous evidence which supports what the father says about returning to Australia by 1 September. In February 2006, according to the mother, the father actually agreed during a discussion about her future that they could go to New York during the Northern Summer. That no particular plan was arrived at as a result of this suggestion is clear from a late conversation between the parties when the mother’s wish to engage in further study and the possibility of living in California was discussed.
In April 2006 the father took out a lease on a home in P which was furnished. It provided storage for the business equipment. It was probably for 6 months. However, on 8 June 2006 the father renewed it to 6 April 2007. The tenancy was useful in that it provided for a place to store the business equipment at a cost which was about the same as it would be for that storage on its own. Also on 8 June 2006, the mother wrote to the Department of Immigration advising it, because she was on a Temporary Partner Visa, that she would be leaving Australia in June 2006 but returning on 30 August 2006 (“2005” is a typographical error) and that she would be in the United States to “visit” friends and relatives. The next day she wrote a reference for the father for the specific purpose of supporting an application he made for the position of part time casual teacher of Outdoor Recreation at a TAFE (Tertiary and Further Education College). This demonstrates how little the parties’ attachment to the P area was at the time.
The father, on 5 June 2006, applied to suspend his health insurance fund membership from 13 June to 1 September. Yet, before leaving for the United States, the parties sold much of the contents of their home and in later proceedings in the United States the mother’s mother swore, on 6 December 2006, that the mother also sent numerous personal items from Australia to the USA before coming to the United States. In this affidavit she infers the mother’s intention to move there permanently without saying anything was said by the mother to indicate more specifically that she had formed an intention to return to the United States permanently and notwithstanding the father’s attitudes and wishes.
Overall, I think that what really occurred is reasonably clear. The mother, as she said in her affidavit was, from the child’s birth to mid-2007, becoming “increasingly unhappy with [the father’s] behaviour including his continued abuse of alcohol, marijuana and his ambivalence towards me” as well as his increasingly obvious lack of responsibility and unwillingness to find and undertake work which would offer the family promise of a satisfactory lifestyle; one which would be suitable for meeting the need of a child to have an appropriate start in life.
I have little doubt the mother’s and her mother’s claims about the father’s excessive use of alcohol and misuse of marijuana are true and their complaints to him at the time about him spending too much of their meagre funds on alcohol and marijuana were justified. The mother’s mother had picked up the father’s real attitude when he said to her while he was angry about her buying baby’s needs in preparation for the child’s birth that “This is too much baggage for my lifestyle.”
Thus, by the time the parties left for the United States, the mother had considered leaving the father and remaining in the United States. Yet I am quite convinced that she did not intend to do so before arriving there. I think she was still committed to her relationship with the father, in love with him and hoping that his attitudes to her and to work would change. While not intending to do other than remain with him, at the same time she hoped that he would find life in the United States to his liking and decide to remain and/or that she could convince him that they should live there. She believed to remain would allow her to obtain better support from her family, live in a community more in line with her needs than were the surfing and skiing communities in Australia where the father might otherwise wish to live and allow her to work full time as a teacher and better her educational qualifications. She probably also felt that living in the United States would enable the father to earn a better income.
I find that the mother did not plan or intend to trick the father into allowing her to take the child to the United States so she could abandon the father and keep the child there permanently. I also find that the mother, on her arrival in the United States, although hoping to remain in the United States with the child and her father beyond 1 September 2006, intended to return to Australia with the child on that date if the father maintained his intention to return to Australia.
There is little doubt that the father did not intend to return to the business in P or U. It is noteworthy that the father lied about his intentions on this aspect when being cross-examined. He originally said, at transcript page 20 on 23 November 2009, that before leaving for America there was no uncertainty about where they would live permanently, they intended to live in P. Six questions later he admitted that there had been no long term decision to that effect.
The mother’s grandmother rented a suitable house for the parties in G, New York State. It is on a lake. The mother no doubt felt this might attract the father to stay and obtain employment or start a business involving watersports. The father obtained employment with a sporting organisation but was, in the mother’s eyes, drinking to excess. The mother obtained work as a house cleaner.
On 5 July 2006, when the mother arrived home, she found the father to be drinking, drunk and aggressive. They argued over damage to her bicycle. The mother complained that he had damaged it. The father threatened her with serious violence, saying “I will knock you out like I did to my brother if you don’t get out of my face”. When she asked him to apologise for this threat he repeated it. When she asked him to apologise again he pushed her with both hands making her stagger backward and become fearful of him.
The next morning he turned the blame on her for his threatening behaviour and told her she was lucky he had not hit her. Later that day the mother’s grandmother came to stay with the parties. The father, in her presence and referring to the mother’s maternal family, commented “They are filthy Jews and they only care about money”. It is not difficult to appreciate that comments like this, with his drinking and aggression, would force the mother to reconsider her attitude to the future of the parties’ relationship and move her to think more seriously about separation from the father and remaining in the USA.
These incidents made the mother become increasingly concerned and upset about the immediate situation created by the father’s behaviour. On 10 July she spoke to a Sergeant of the G Police Department. Her complaint to him is quite consistent with her evidence. She also told the police officer she did not want the father arrested.
On 11 July, the mother left the home where the parties had been living in G. She went to stay at her stepfather’s house in the same street. She left a note saying where she was, giving her telephone number and asking the father to call her. She cleaned the house and prepared the father’s evening meal before she left. She also telephoned the father’s parents, no doubt to inform them of her actions and reasons.
The father did not try to contact the mother by telephone but, at about 10:45pm that night, she heard a noise on the second storey balcony. About 15 minutes later the father called by telephone and threatened to start breaking things at her father’s home and to damage the balcony if he was not allowed inside. The mother tried to placate him. About half to one hour later he returned and started banging on the door, then telephoned her again. She and her father tried to placate him. She formed the impression, which was probably accurate, that the father was drunk. He was shouting. The mother threatened to call the police if he did not go away and told him he could continue to live in the house which had been rented for the rest of the summer. He obviously wanted to see the child, but the mother refused to allow him to because he was too drunk. She promised to discuss things with him in the morning.
On 12 July the mother met the father and went to a café with him by car. Her friend, Ms B, and the child went there in Ms B’s car. By this time the mother had decided to separate from the father. I am far from convinced she wished to have a permanent separation from him. Her probable preference was to live with him permanently in the USA provided he modified his drinking, got a job and became more considerate about her needs and the child’s needs and less controlling. She probably believed or hoped that a short time away from him would serve to jolt him towards such changes. I have little doubt that rather than remain permanently separated from him she would have preferred to return to Australia with him.
When the mother and the father arrived at the parking lot of the café the father was aggressive towards the mother and pushed her. She then told the father she needed to have time away from him and indicated that she was going to take the child and leave immediately with Ms B. She was able to get into the back of Ms B’s car. The child was, presumably, already in it. The father said: “I am going wherever you are going” and tried to get into the car. When he failed, because the doors had been locked, he jumped onto the bonnet of the car. Then he jumped onto its boot and ran to the front of the car, put his haversack on the road and lay on the road intending to block it. Ms B was forced to drive around the father but ran over his rucksack in her effort to get away.
The mother was driven straight to the New York County Court where she commenced proceedings which are the equivalent of apprehended domestic violence proceedings. The proceedings were heard on 13 July and a protection order was made against the father in favour of the mother on that day for 2 years.
The father made much of the fact that the petition warned him as the respondent that failure to obey the order could make him subject to arrest and criminal prosecution and that if he committed criminal contempt of the order he could be imprisoned for up to 7 years or committed contempt of court for up to 6 months. The father, too, commenced the same type of proceedings against the mother on 12 July. The terms of his sworn petition put his version of what had occurred on 12 July and also on 5 July.
What was alleged on oath by the father in his petition about 5^th July is that the mother “started yelling at the petitioner and refused to let him leave. She wouldn’t allow him to go out. She followed him out to his car and kept harassing him.” I have already related the mother’s version of this incident. I accept it in preference to the slant the father put on it for the purpose of the proceedings. It is noteworthy that the incident is not mentioned in the father’s affidavit in the Family Court.

Apparently the allegations of the father were enough to obtain an order based on “aggravated harassment in the second degree”. One could not imagine that the allegation about the July 12 could have been relied on to get an order against the mother. It alleges that Ms B “hit the respondent with her car nudging him out of the way” and “ran over the respondent’s backpack”. It does not allege the mother did anything. This incident is not mentioned in the father’s affidavit. I accept the mother’s version of it. The father, too, obtained a 2 year protection order against the mother. It seems that, in New York State as in Australia, such orders are made on flimsy grounds and so commonly that their purpose is undermined.
The mother and father had had breakfast together at a café in G before court. The father had borrowed the mother’s brother’s car for the trip to court, but the parties went there separately. In the evening, on 13 July, the father visited the mother and the child at Mr Sorraw’s home and had a meal with her. On 14 July the father visited the child both in the morning and evening. This pattern continued each day until 19 July when the father returned to Australia. The mother drove the father to the railway station in Y, which is about 100km from G, when he left America.
The father’s evidence during cross-examination was to the effect that the mother “disappeared” with the child on 13 July. He said this despite the fact that the mother had gone to live at her father’s home nearby on 11 July and that, since 11 July, he had seen the mother every day until he left the United States on 19 July and had seen the child on every day. He distorted and exaggerated what really happened, which was that after court on 13 July, the mother did not return to the rented home where the father was staying but, with the child, returned to her father’s holiday home as must have been expected by the father.
Some evidence which the father gave while being cross-examined about the separation is quite significant. It throws light on the father’s allegation that the mother had tricked him into going to the United States with her and the child so she could keep the child there. The evidence the father gave on this issue warrants careful examination because, not only is the determination of the mother’s true intentions highly relevant to determining her level of parental responsibility, the determination of the extent to which the father has been accurate in his portrayal of the situation is highly relevant to his level of parental responsibility. The trickery claim is at the heart of his case that the mother is an irresponsible parent.
The evidence I am referring to is on p.32 of the transcript for 23 November 2009. It is to the effect that after 13 July 2006, but before 17 July that year, the mother said to the father that she had planned to stay in the USA before leaving Australia and had intended to tell the father this after their arrival in America. In the context that this evidence was given by the father, the statement of the mother to him to the effect alleged was the first and only time that the mother had informed him of this intention. This is critical to his case that the mother tricked him into allowing the child to go with the mother to the United States by leading him to believe the trip was to be a holiday which was to end with the child’s return to Australia on or before 1 September 2006. In fact, his case was that when he left the United States on 19 July he expected the wife to return to Australia with the child “as planned on 1 September 2006”. This is clearly stated by the father in paragraph 12 of his affidavit of 4 May 2009. He infers that he left the United States on 19^th July with this assurance in mind. This is quite inconsistent with his cross-examination evidence that a very short time before the 19^th the mother confirmed to him that she had planned to remain in the United States prior to leaving Australia.
By 17 July the father had already planned to leave the United States. He wrote a letter to the Family Court, County of … at G on that day after apparently being unsuccessful in an attempt to file a petition for custody or joint custody on 12 July; that is, prior to the hearing of the protection orders applications. In this letter he claims that his reason for leaving the United States without his daughter is his fear of arrest because of an anticipated false allegation by the mother of breach of the protection order against the father. The tenor of the letter leaves no room for thinking that the father expected the mother to return with the child on 1 September. He made it clear that he intended, when he wrote the letter, to institute Hague Convention proceedings for the child’s return, yet it was a considerable time later that such proceedings were commenced. It is enlightening that he relied on this fear as early as 17 July 2006. It was then even more baseless then than it was in mid December that year when another incident which he claims has caused such fear occurred.
It is possible that the mother disclosed that she had planned from the start to stay in America with the child after the letter was written, but it is not likely. In paragraph 6 of the father’s affidavit of 12 February 2007 he said of the trip to the United States:
“We planned to stay here for 10 weeks… We had round trip tickets and intended to return on 1 September 2006. Our relationship deteriorated whilst we were in the United States of America and by agreement I returned to Australia on 11 July. At that time, [the mother] assured me that she would be returning to Australia with [the child] as planned on 1 September 2006. She did not return with [the child] and I instituted proceedings under the Hague Convention”
Thus, it is likely that, at the time of his return to Australia, which was on 19 July, not 11 July, the father had not been told by the mother that she planned not to return before leaving Australia.
Nothing in this affidavit or any other affidavit filed by the father in these proceedings mentions anything about the alleged admission by the mother of any pre-trip plan not to return. However, it does seem clear that by 18 July 2006 the mother had decided not to return to Australia. By that date the mother had not received a copy of the father’s letter of the 17^th. He posted it to her on the 17^th or 18^th July (see the post marks on the envelope it was in which is annexure N2 to the mother’s affidavit sworn 30 March 2009). It is also clear from the letter that the father already knew that he had a right under the Hague Convention to attempt to repatriate the child and intended to pursue it.
On 18 July 2006 the mother wrote a note (Exhibit ‘M’) to the father in an attempt to obtain his signature to confirm what appears to be alleged in the note to be their agreement about the child’s future. It could be inferred by the note that the parents had, when it was written, agreed that the child would remain with the mother in America although the father was intending to return to Australia. The mother does not specifically allege any such agreement in her written or oral evidence. She does not allege anything which is inconsistent with such an inference. The note should not necessarily be interpreted as having this inference. It could be that the mother merely intended the note to amount to such an agreement if it was returned to her by the father with his signature in the space which is reserved for it. This is much more likely than not to be the situation.
By the time she wrote it she must have decided not to return or return the child to Australia. She had not received a copy of the father’s letter by the time she wrote it or sent it to the father. Although, on 19 July, she drove the father to a railway station in Y, which is some distance from G, so he could leave the USA that day and return to Australia, she did not give him the note. She posted it to him; presumably to Australia.
When he received it, which must have been soon after his return to Australia, he could have been in little doubt that the mother was not intending to return to Australia with the child by 1 September 2006 or at all. However, as is stated in his letter of 17 July, he had decided to institute a Hague Convention action before then. This decision must have been made soon after he consulted the Australian Attorney-General’s Department on 13 July.
The Hague Convention proceedings for the child’s return to Australia were commenced on about 16 November 2006. The father’s excuse for commencing so long after he left the United States is that, because he had virtually agreed that the child did not have to be returned before 1 September, he was advised before he left for Australia that he should not commence proceedings until after that date.
This stance is contrary to his claim that the mother told him on 13 July she had always planned to do so, even before she left Australia. Surely no such advice would have been given if he had conveyed this to his advisors. If, as the mother claims, she did not tell the father this, he knew from the note of 18 July 2006 that the mother did not intend to return the child. Nevertheless, he consulted the Attorney-General’s Department on 13 July and was given advice before the mother made any written admission. It is likely that he did this because the AVO proceedings were commenced the day before. It is also possible that he was told by the Attorney-General’s Department that he could not start proceedings under the Hague Convention until after 1 September because the mother had not, by the time he consulted it, said anything about remaining in America. One would expect him to have contacted the Attorney-General’s Department promptly if he was told by the mother after receiving this advice that she has planned in advance not to return the child to Australia. It is more probable than not that she did not make this admission and that the reason the father did not tell his then advisers of the note of 18 July is because it suited him not to at the time as he intended to travel the East Coast of Australia on a surfing holiday.
In August 2006, the mother moved from New York State to Arizona with the child and got a job at a local school. In August she sent a postcard to the father’s parents in which she provided the address of what she described as “our new home”, obviously referring to herself and the child, and asked the father’s parents to convey this information to the father when he contacts them or “returns from his surf trip”. One can deduce from this comment that the mother could not tell him directly where she had moved to because, like his parents, she could not contact him directly.
In the light of these facts, one must seriously question why the Hague Convention proceedings did not commence much earlier than they were. There could have been no doubt that if there was an agreement to return the child by 1 September 2006, and I find there was, there was by late July overwhelming evidence that the mother had changed her mind and did not intend to abide by it.
The decision for the child to be returned to Australia on the Hague Convention Application was made by the United States District Court for the District of Arizona on 15 December 2006. The relevant judgment does not mention any evidence to suggest the mother had tricked the father into allowing her to take the child to America with the intention of not returning her to Australia. The judgment strongly suggests something quite different. It is that the mother “assured the father that she would return with [the child] on 1 September before [the father] left” for Australia on 19 July. Surely the learned judge would not have said this without qualification if the evidence had indicated the mother always planned not to return, especially if it was disclosed she had admitted this less than one week before the father left America.
His Honour did not to refer to the mother’s letter of July 18. Although it was received by the father after he left, it is quite inconsistent with any such assurance to the father before he left. It was really a failed attempt to get the father to accept that the mother would not be returning and agree to that situation. It seems clear his Honour was not shown a copy of this letter. One could understand why neither party tendered it; it may have harmed the father’s Hague Convention application by indicating undue delay on his part and may have harmed the mother’s case by indicating the father’s lack of consent to the child’s retention in the United States by the mother who, by this time, was claiming, in the Hague Convention proceedings, that the parties had agreed to the possibility of remaining in the United States before they left Australia.
During cross-examination in the current proceedings, the father admitted that he had not informed the Arizona District Court judge that the mother had made the statement allegedly made between 13 and 17 July to the effect that she had tricked him and always intended to keep the child in America.
It is in the context of the above that what I regard as an important indication of his credit is to be examined. It is what he said in cross examination on 23 November 2009 which is recorded at p.32.10 to .45 of the transcript. The most critical evidence starts at .30 and is:
“Father:…..at one stage she said she planned to stay…..over there.
Mr Schonell: And that was said some time after 13 July?
Father: Yes.
Mr Schonell: And some time before 17 July?
Father: Yes.”
This and the fact that the father contacted the Attorney-General’s Department on 13^th and got advice about the Hague Convention and was told to wait and see whether the mother would return the child when she was due to do so on the return ticket for 1 September leaves little doubt that the father decided to leave the United States before he could have been told by the mother that she had tricked him from the start of the trip.
There is nothing in the husband’s letter to the Family Court in New York about any such trick. The judgment of 15 December also suggests there was nothing before the District Court judge to that effect. The father admitted in cross-examination at T33.29 on 23 November 2009 that this is not in any of his affidavits filed in the Family Court of Australia. More significantly, he gave this evidence which is recorded on the same page of the transcript:
“Did you mention it in the Hague Conventions proceeding”
Yes I did.
You did. Right. And who did you tell it to?
I’m pretty sure I said it when I was in the witness box.
You said it in the witness box? Right. Okay?
Possibly.
Is that because you see me looking at a document?
No.
….and then you want to qualify the proposition?
No, it’s not.
No. Well, did you say it or not?
I can’t remember.”
I conclude that the father knowingly fabricated the claimed admission of the mother that she had planned not to return the child to Australia before she left for America. He is a deliberate liar who is prepared to exaggerate and embellish the facts for the purpose of gaining a forensic advantage in these proceedings rather than allow my decision to be based on the unadorned truth. His credit is severely undermined. His parental responsibility is too. A responsible parent would be keen to ensure that the proceedings are decided on their actual merits.
Much of the main thrust of his case is that the mother is an untrustworthy and manipulative liar who, if she is permitted to take the child to live in America, will then thwart his attempts to see the child by fabricating allegations which put him at risk of arrest and imprisonment there and excuse his claimed fear of visiting the child there.
The father relies on another incident to establish his fear. After the father left the United States the mother took the child to live in Arizona, where her mother was then living. The mother and the child were living there when the Hague Convention hearing took place in Arizona. The mother had obtained work there as a school teacher. She had also communicated with the father by mail and telephone. In the course of these communications the parents discussed the possibility of reconciliation. During these, the father is alleged by the mother to have conceded that he had behaved wrongfully and needed professional assistance to overcome his penchant to abuse the mother. The mother says she offered to return to Australia, presumably for a reconciliation, if the father could satisfy her that he had reformed. She even did some secretarial work for the outdoor activities business by email.
The prospects of reconciliation must have disappeared on 24 November 2006 when the mother was served with the initiating documents for the Hague Convention proceedings. The mother’s case at these proceedings was not made clear to me. The judgment details the Court’s conclusions of fact but not necessarily the mother’s actual case, if any, in opposing an order for the child’s return. The judgment seems to deal with theoretically possible defences. In the judgment, on the issue of the mother’s intentions in travelling to the United States, she was held to have intended to return to Australia on 1 September 2006. His Honour held that, due to the “domestic troubles” the parties had while in the United States leading to a need in the mother to ask for “some space in the relationship”, the father returned to Australia early.
This finding, which is consistent with my findings, was made despite the affidavit from the maternal grandmother which is to the effect that before the mother left for the United States she shipped personal things to the maternal grandmother which indicated to her that the mother intended moving back to America permanently. In the maternal grandmother’s brief affidavit made for the Hague Convention hearing, there is no relevant detail, not even in any suggestion from the maternal grandmother that the mother had told her what her intention was. The inference is that the maternal grandmother’s affidavit in the Hague Convention proceedings is no more than speculation about the mother’s attitude to staying in America with the child and the father which, it was thought, would strengthen the mother’s case. Her case was that the parties, before leaving Australia, had agreed to the possibility that they would remain in the United States. It is likely that this had been discussed and the mother hoped to stay in America. She probably pointed to the advantages for the father. He may well have contemplated the possibility if things went in his favour and interest. This does not mean there was any agreement other than to return by 1 September.
On 8 December 2006 the Arizona District Court made an order that the child be returned to Australia pending the decision of the Family Court of Australia on the issue of her residence. The order provides that, for the purpose of her return, the child be temporarily placed in the father’s custody. On 13 December 2006 the same court granted an application by the mother to clarify the order made on 8 December. The context in which it was made and decided lead to the conclusion that the application was equivalent to a slip rule application in the Family Court of Australia. In the same application, the mother made an application to re-open her evidence of the issue of return. It was refused. The evidence she wished to adduce was to the effect that the parents had come to the United States with the intention to settle there. I do not know whether it was entirely based on inference or whether more concrete plans were alleged. The effect of the grant was an order made on 15 December that the mother hand the child to the father within 15 days of 15 December.
When the clarifying order was made, the mother correctly believed that the Court intended her to have 14 days with the child before she was required to hand her to the father for return to Australia. The father still had a copy of the original order. In reliance on that order, which could only be read as requiring the handover to be forthwith, he probably believed that the mother was obliged to comply with the order of 8 December to the letter despite comments by the Judge at the hearing which disclosed an intention to give the mother time; possibly time to take the child to Australia herself, before having to hand the child over. He had not been served with the amended or clarifying order because it had not yet been taken out. Nevertheless, he had been present and represented when the matter was heard on 8 December and should have known what the Court really intended.

S60CC(3)(e) requires specific consideration of the practical difficulty and expense involved in face-to-face and the other forms of contact which are implicitly involved in ensuring the child maintains a level of relationship with each parent which, overall, will advance her welfare. I have already mentioned a variety of practical problems which might arise in the child having contact with each parent if they both live in Sydney or on the south coast. If they live in Sydney, difficulties will probably arise during the non-ski season at changeovers because the parties’ homes and work are not likely to be close enough to one another to overcome problems created by their differing work hours and lifestyles. The possibility that the father will not be able to afford a car should not be excluded. If the parties live on the south coast, these problems will not be so acute during the non-ski season, although during the ski season there will need to be a lot of road travel for the parties and the child; too much to be regarded as practical.
If the father continues to work in the Snowy Mountains during the ski season, whether he lives in Sydney or on the south coast at other times, the practical problems are not merely limited to changeovers. The child’s schooling will be a very real problem, although the father does not seem to appreciate this. To permit the father to take the child to stay with him and go to school in the Snowy Mountains, as he proposes, because he will be working there on Thursday, Friday and Saturday of each week, would be an unacceptable disruption to the child’s ability to have settled schooling and a lifestyle free of disruption and inconvenience. If orders were made for the child to go to school in the Snowy Mountains for the whole of each week during the ski season, as the father seems to be seeking, the regime would still be too disruptive for her school because she would then need to spend the balance of the year at school in Sydney or on the south coast. She would, during the ski season, see little of the mother yet be burdened with an unacceptable level of weekend travel if she was to have any worthwhile contact with the mother during school term.
Attending school in the Snowy Mountains would require her to travel to the mother’s home on Saturday then back to the father on Sunday. As the father proposes to work on Saturdays and the mother is a school teacher working normal school hours, the mother would have to travel to the Snowy Mountains to collect the child, a round trip of about 400km from the south coast and 1000km from Sydney. The father would have to make the reverse trip on each Sunday to obtain her return. In each instance the mother would be able to spend less than one day with the child each week and then much time while driving in the car. The child would spend too much time travelling. I cannot understand how the father could conceive of this being in any way practical or satisfactory for the child and the mother. The expense involved would make it even more impractical, especially at the father’s income level. The only practical alternative would be for the child to live with the mother for the whole time the father works on the snowfields, thereby limiting the father’s contact with the child to part of each Sunday after he has come to Sydney or the south coast from the Alps.
The impracticality of the child living in the United States and seeing the father is made worse by her age. It will be some years before she will be able to fly unaccompanied. Because of the distance and time involved, as well as the need to change flights on the West Coast of the United States, I expect that it will be impractical and daunting for her to fly alone, even accepting the exceptional care that some airlines provide for unaccompanied children, until she is 12 years old unless the parties agree otherwise. If she lives in America, the practical solution for contact with the father before she is able to fly on her own would be for the father to visit her there. It is not rendered impractical because the father refuses to accept it. As I do not regard his claimed reason for not visiting America as valid, I cannot find any reasons why the Court should not expect him to visit her in America and regard him and deal with the matter, if it is otherwise appropriate to so do, as it would in any circumstances where a parent who is able to, but does not wish to, visit a child; by making orders which permit visits despite an expectation that the opportunity may not be used but seek an alternative solution which the parent might be willing to accept. Orders which would allow the father to fly from Australia to Y Airport, collect the child, then fly to Canada, say Montreal or Toronto or even a Caribbean Island which is a signatory to the Hague Convention to have block contact with the child are quite practical. This way he would not need to go beyond any airport in the United States. When the child’s vacations are long enough to permit it, the child could fly to Australia and return accompanied by a familiar person. I am not satisfied that any members of the father’s family would be sufficiently familiar with the child to do this, so if the father wishes to bring the child to Australia before she can fly on her own he will have to accompany her.
It would be practical in the American summer school break for the father to fly to an airport, collect the child and return with her to Australia and do the reverse to return her. It is the longest break but is during the skiing season in Australia. It is from late June to early September. The Christmas winter and spring school breaks are each only one week long, so travel to and from Australia for contact would be too tiring and not provide sufficient or worthwhile time with the father. There has been no indication from the father that he intends to alter his lifestyle by giving up his job on the snowfields in the Australian winter. The father’s outdoor activities business is more concentrated during the Australian Christmas holidays and the American Christmas break from Christmas day to New Year’s Day. The New York State mid-winter break is for about 1 week. This too creates practical difficulties for the father because it is in the high season for his business. The New York State spring break is for about a week in early April. This would be the most practical time for the father to spend time with the child if she is to live in the United States.
Although the capacity of the parents and other significant persons to provide for the child’s needs, including her intellectual and emotional needs is, by s60CC(3)(f), an additional rather than primary consideration in determining her best interest, I regard it as a consideration of substantial weight. Because of the limitations placed on the child’s education implicit in the orders the father seeks in the light of his intention to continue working in the Alps during the skiing season, I conclude that the father has little appreciation of the needs of a small child in relation to education despite his own university education. The mother not only demonstrates no similar deficiency in her understanding, she is a school teacher, is less self-absorbed than the father and is more child focussed, so is likely to have a considerably higher capacity to meet the child’s intellectual needs. I have already referred to matters which lead to a conclusion that the mother and her family are likely to be much more able to meet the child’s emotional needs than the father and his family, especially his mother. I regard the mother’s mother and grandmother as likely to be able to promote the child’s emotional needs to a high degree.
I am also satisfied that the mother is much better able to meet the child’s material needs than the father. He has been content to work for and live at virtual subsistence level so he can maintain the lifestyle he is committed to. The mother has a history of obtaining and maintaining work as a school teacher both in Australia and the United States and is likely to continue to be able to do so. She appears to be highly qualified for such employment and to be able to obtain work despite practical difficulties. At times she has had significant savings and seems to be able to rely on her family for financial support if necessary. The responsibility of parenting the child is unlikely to be an impediment to her employment. She is likely to continue to be more able to continue to provide the child with material needs than the father. The evidence satisfies me that she will be much more willing to meet the child’s material needs than the father is likely to be.
Specific mention should be made of the father and the father’s mother’s lack of capacity to meet the child’s emotional needs because of their animosity toward the mother and her family and tendency to disparage them. The father’s anti-Semitism or, if it is not that, his adherence to negative stereotyping of Jews is bound to become apparent to the child. When it does, it is likely to undermine her emotional health, especially if she lives with or sees a lot of him.
The child’s maturity, sex, lifestyle and her background as well as that of both parents and any other characteristics she has which the Court regards as relevant must be contemplated in deciding where her best interests lie. So far as the evidence permits me to find, she seems to be of unexceptional maturity for her age. That she is a girl rather than a boy does not appear to raise any issue which would not otherwise be raised despite the problems of the past which resulted in allegations that the father had sexually abused her. Because of her age, she could not be said to have developed a lifestyle which could not be changed without undue consequences, with the exception of the fact that she lives in two households each week for about equal time. She attends preschool so, because she will be five in December, will be ready for school next year.
Her background is significant because it has already raised risks to her emotional welfare, due to the mother being partly of Jewish heritage, of Jewish religion and American Jewish culture and the father being an Australian who appears to have an Anglo-Irish Christian background but has also manifested the propensity to express attitudes which, at face value are typical of anti-Semitism in general in a context of a higher than usual level of resentment toward the mother and her Jewish family. The animosity has been expressed in a way which strongly suggests it has been partly caused by the father’s attitude to Jews. The level of his mother’s animosity toward the mother is relevant because it is such that it is likely to confirm the father’s attitudes to the child. One cannot but be apprehensive about the likelihood that the child will, in the not too distant future, realise that the father and his mother dislike and hold the mother and her family in low esteem and that part of his dislike, for the father’s part, is based on their Jewishness; something which the child may well come to believe she, too, is afflicted with if she has substantial and significant or more contact with the father.
I have already said much about the parties’ respective attitudes to the child and to the responsibilities of parenthood. The mother’s attitude to the child is less selfish than the father’s attitude to her. She also demonstrates a much higher level of appreciation of the responsibilities of parenthood than the father. The father’s behaviour in returning to Australia, in selfishly and quite unduly limiting the mother’s access to the child from late December 2006 to mid March 2007, in persisting with his wish to work in the Alps during the snow season while seeking parenting orders for the child which would mean she would not have proper schooling or proper contact with the mother and with his falsely based unwillingness to visit the child in America, if she lives there, amply demonstrate this, although one should not fail to include in the category of matters which demonstrate the father’s inferior attitudes, the fact that he has shown that he regards the child more as a possession than a person and is inclined to assert control over her for the sake of it and his perceived “rights” rather than in order to raise her more advantageously.
There has been some family violence. It has been perpetrated by the father upon the mother. I do not accept that the only instance which occurred was that which the father admitted to when he pushed the mother. I think it has been more prevalent than that and usually associated with the father’s drinking to excess. There is now not much likelihood of further incidents. I do not regard family violence as a significant matter in the weighing of the factors which will determine the orders the Court should make in this case.
Although there were personal protection orders made while the parties were in the United States, these are not within the meaning of “family violence order” in s60CC(3)(k). I have said all that need be said about the American orders because of my view that the prospect of future family violence is slight.
It is usually preferable, and it is here, to make orders which are the least likely to lead to the institution of further proceedings in relations to a child. I shall endeavour to make such orders.
I have already referred to most of the facts and circumstances which I regard as relevant. One which I have only mentioned in passing seems to me to warrant further exploration. It is the life the mother is likely to lead if the child lives in U or P. She has lived there since April 2006 with the exception of the periods spent in the United States, but has lived in the broader South Coast area since late 2004. In that time she does not appear to have developed many friendships and has no close ties there. There are two female friends, one of whom recognises her unhappiness at having to live in the area and supports the mother’s wish to live in America. There is no evidence to suggest these friends could adequately compensate the mother for the loss she is likely to feel from what is, in her mind, the forced distancing from her family and close friends in America and the resultant attenuation in the emotional support she feels she gets from them. I accept that in America she will have better access to support from her family and many friends there.
For a while the mother had a close male friend, Mr K, in P. She remains friendly with him, but is not as involved with him or close to him as she has been. He intends to move from the area in the not too distant future and expresses an intention to have no more than occasional contact with the mother once he does. I do not regard him as being likely to provide much future emotional support for the mother.
The mother’s case includes the assertion that her own emotional wellbeing ought to be promoted by the orders to be made because it has the potential to have a significant effect on her ability to parent the child and, therefore, on the child’s own wellbeing. She says that because the father is so bereft of ability to provide emotional support for the child, the support she can provide is more important to her than it otherwise would be. I accept her case that, if she is isolated from her family and friends in America by feeling constrained from living in America because the child cannot live there, she will suffer emotionally because of her feelings of isolation and loss.
I am not an expert, but as a layman, based on the evidence and my own observation of the mother, I think that it is likely that the stress and unhappiness the mother will suffer as a result of being and feeling isolated in Sydney or the south coast will be considerable enough; especially with the additional stress she is likely to suffer as a result of feeling unable to pursue her life, her studies and working career in the way she wishes in America and the likelihood that the father will, if she lives in Australia, be better able to exert “undue influence in her day to day life”, to adversely affect her parenting of the child to the child’s great detriment. This reduction in her ability to parent the child will, nevertheless, not in my estimation reduce her to being less able as a parent than the father.
The phrase I have quoted immediately above is taken from the opinion of Ms E, whose opinion on this aspect is stated in the penultimate paragraph of her report of 30 October 2008. I accept it as likely to be accurate. Ms E’s opinion is that the father is likely to continue to overbear the mother if he has regular involvement in her life because of frequent need to be in contact with one another for shared parenting and frequent parenting changeovers. I regard that as likely to be very adverse to the mother’s ability to parent the child optimally and therefore to the child’s optimal welfare. I do not regard the father as being capable of providing the parenting the child needs for her best interests to be promoted if he has equal or more time parenting her or even spends substantial time with her. The child’s welfare demands that she be parented principally by the mother and for the father’s involvement with her to be kept to a level where he will not be able to impose his wishes and will on the mother. I find that he will, if put in a situation where he is able to do so, with the intention of meeting his own convenience in preference to the child’s welfare. I accept the mother’s submission that because of the father’s poor parental ability, it is particularly important to the child’s welfare that the mother’s parenting capacity is at its optimal level. It will not be unless the child and the mother live in the United States.
A matter of significance which has not so far been canvassed is the legal ability of the father to live in the United States and of the mother to live in Australia. There is little doubt that the mother will be able to live permanently in Australia if she applies to do so. There is no evidence about the father’s ability to spend anything more than relatively short holidays in the United States. In view of his stated and actual unwillingness to visit America, the parties do not seem to have found any purpose in obtaining evidence which assumes a willingness to stay there for more than a very short visit. There seems to be little doubt that he would be able to pass though America to collect the child on the way to another country or visit her there regularly for up to a month or two at a time.
After considering and weighing all facts and matters referred to above; there being no other facts and matters which, in any combination with those I have already discussed, have enough weight to alter the outcome of these proceedings, I am quite satisfied that it is in the child’s best interests that she live principally with the mother in the United States. It is also in the child’s best interests that the mother not continue to feel that the father has any significant control over her day-to-day life. A strong reason why the child should live with the mother in the United States is to avoid the prospect of the mother being overborne by the father in his quest to be in control and therefore suffering the stress and frustration engendered by the fact that the father is able to assert control over her.
If the child lives in the United States the father will probably not visit the child there at all. If he does, it is unlikely to be for any significant period. The mother should have the sole parental responsibility for the child. The father will not know enough about her and American living conditions to make informed decisions. Any decisions he would make are likely to be with the intention of meeting his wishes rather than the child’s needs. He is also likely to attempt to impose his will for reasons not connected to the child’s welfare if he has the power to do so. The parents are not likely to agree on important matters related to raising the child. Their ability to communicate civilly is likely to be lowered by a decision that permits the child to live in the United States.

If the child moves with the mother to the United States and gains domicile there, United States law, specifically the law of New York State, will determine responsibility for making the decisions implicit in raising the child if there is no Australian order for parental responsibility or if an Australian order is not registered there. Although I believe the mother should have sole parental responsibility if the child lives in the United States, there is no pressing need to make such an order. The issue of a specific order giving sole responsibility to the mother was not argued, so I should not make such an order. The only specific responsibility order which is sought and argued was sought by the father. It is for equal shared responsibility; an order which is contrary to the child’s best interests and one I should not make. The only practical approach to a parental responsibility order that I can consequentially take would be solely be to meet the situation while the child remains in Australia. As she is highly unlikely to be here for long if the mother is permitted to take her to live in America, there is no need to make any order for responsibility while she remains here. If there is no order, the mother can then take any steps needed to obtain a sole responsibility order once she arrives in America if she is permitted to take the child to live there.
It is neither practical nor in the child’s best interests that she spend equal time with each parent or substantial and significant time with the father. These possibilities are impractical if she lives in the United States. Although substantial and significant time is more practical if she lives in Sydney and even more practical if he lives on the south coast, although not very practical in either instance, neither should be ordered because this is a matter in which it is overwhelmingly not in the child’s best interest to live in Australia nor is it what the mother, who should have principal care of her, wants. The strength of her need and wish to live in America rather than in Sydney or on the south coast, in the circumstances which have been considered, is another substantial reason to make the orders about the child’s place of residence which the mother seeks. I shall allow the mother to take the child to live in America despite the fact that this will prevent the father from having equal or substantial and significant time with her. The mother has succeeded in rebutting the presumption that it is in the best interests of the child for the parents to have equal and shared parental responsibility. I shall, for the reasons stated, make no parental responsibility order.
In considering the conclusion I have reached about the child’s best interests, I have placed the most weight on the father’s self-indulgence, his controlling and overbearing nature, his lack of insight into the child’s needs, the attitude to the child’s care which emphasises his rights rather than her needs, especially his possessory approach to her, and his belief in his right of sole control over parental decisions, his and his mother’s animosity towards the mother and her family and their propensity to undermine the mother and her family in the child’s mind.
If the mother feels forced to live in Australia isolated from her family, friends, usual culture and way of life and feels forced to have a way of life which is not as she wishes and is prevented from advancing her own career, her ability to parent will suffer and she will suffer. The fact that the mother is selflessly devoted to the child’s welfare and highly capable of providing for her has been a characteristic of the mother which has been of great significance.
I have also assessed the practical difficulties involved with the child spending time with the father, especially those due to her age and the father’s willingness to visit her in the United States. I do not consider that the father’s attitude in this respect is reasonable. I regard it as a manifestation of his self-indulgent resistance to do anything which inconveniences him and, consequently, it is part of my reasoning for allowing the mother to take the child to live in America and thereby distance the father from her.
He must know that he should visit the child in the United States if her welfare is to be optimally safeguarded. I certainly think he should visit her there despite my belief that he should not have the type and extent of contact with her, which would make it more appropriate that she live in Australia. I am of the opinion that his mother should have no more than the occasional contact which once yearly visits to Australia by the child and once yearly visits by the paternal grandmother to America would bring until the child is much older if the father and the paternal grandmother are willing to arrange such contact. If they are not, I hold the clear view that the child will be better off not seeing whoever is not so willing. I shall permit the paternal grandmother to spend time with the child when the father is spending time with the child. I shall also permit the paternal grandmother to speak to the child via Skype or telephone at the times when the father has such contact with the child; part of the contact which I regard as appropriate to be frequently and regularly made by the father.
Although I am satisfied the father and his mother will probably not visit the child in the United States, I shall make orders in the hope that they will; orders which would allow for visits by the father and paternal grandmother in America as well as for the possibility, which is not very likely, that the father might be prepared to fly into the airport nearest the child’s home; Y Airport, collect the child there and fly to somewhere close such as Canada or a Caribbean island which is a signatory to the Hague convention on International Child Abduction. Y is a major airport. There are many flights from Los Angeles to Y and from Y to Toronto and Montreal. Collection and delivery may be somewhere other than Y Airport, but should not be further from the mother’s home than this Airport.
There is no evidence before me about the age when the child would be permitted by an airline to fly alone. As she is not yet 5 years old, it will be some years. Because an airline or other form of long distance transport might be willing to take her alone, it does not mean that she will be able to travel alone. I shall make orders for her immediate future, being while she cannot travel alone, as well as for when she can travel alone, which I assess as likely to be when she turns 12 years, or earlier if the parents agree.
As the father’s business is mainly during our summer holidays and he goes to the Alps during the Australian winter and has not suggested he would forgo his business or work during these periods, I regard him as probably unprepared to have face-to-face contact at these times. This leaves two periods when such contact will be more likely if, as I expect, the child commences school in 2011; April 2-9, which is the American spring break and February 15-19, which is the American mid-winter break. The only other substantial school breaks in New York State are December 24 to January 1 inclusive and late June to early September when the long summer break occurs. The April, Christmas and February breaks are only for 7 days. I think it would be in the child’s best interests to have two holidays with the father each year; either a part of her long holiday and the whole of another short holiday or for the whole of two short holidays. This regime will allow the mother to utilise the balance of the child’s school breaks to spend holiday time with the child. She will be able to do this because she is likely to work as a school teacher. A practical course would be to permit her to be collected at Y Airport, it being the closest to A, on the first day of any of the two holiday periods, so that she can be taken by the father on holiday in or out of the United States, including Australia in the long summer break. The other 3 holiday periods are too short for travel to and from Australia. They should be limited to relatively local travel, say that which involves travel from A or Y Airport of not more than 8 hours. Long periods of travel in one week breaks will be too tiring and take too much time out of the time the child will otherwise be able to spend with her father and or his mother. The child knows her father well. If she is taken to live in America, she will not need to be reintroduced to him in order to have two pleasant and stress free holidays of from about a week to up to 3 weeks with him each year. Three weeks with the father is sufficient during the summer break. The child should be able to travel to Australia and return and spend appropriate time with the father yet allow the mother and her family to spend some of the long holiday with her. There is no reason why the father’s family, including his mother, should not spend time with the child while she is in Australia.
I cannot force the father or his mother to visit the child by these methods, but they shall provide the child with the opportunity to maintain her relationship with the father and his family.
The father is unlikely to change his lifestyle and earn a better living. I expect the mother to have to support the child with little financial assistance from the father. Although he should be able to raise sufficient funds for his and the child’s travel and accommodation costs for the purpose of contact, I shall require the mother to meet such of these costs as she has agreed to in her memorandum of orders sought, although she should also bear the cost and responsibility of delivering the child to the father and of collecting her when she returns. She has agreed to pay up to $A6000 a year for the next three years toward the father’s and the child’s travel and accommodation costs. She should not have to pay more than this because she will be responsible for bearing most if not all of the child’s living costs for many years.
The child should, in the circumstances, have frequent electronic contact with the father. The mother agrees that he should be able to telephone her at his cost on each alternate day or at a similar frequency for not more than 10 minutes at a time. Young children are not able to maintain interest for long, so 10 minutes should be the limit. Preferably, he should be able to have Skype contact with the child in place of telephone contact. The times for either type of contact should be convenient to the mother. I note that if the father contacts the child on mornings when he does not work, as New York is 10 hours behind the NSW east coast, it will be early the previous evening in New York. The father should bear the cost of obtaining the equipment which is necessary at his end to permit Skype and telephone contact and the mother should bear the cost of obtaining the equipment needed at her end, but the father should initiate the calls and be responsible for any call costs at his end. The mother should be responsible for any individual call costs incurred at her end as a result of the father’s calls. Both the father and the child should be free to email one another once the child is old enough to operate a computer and read her emails.
I shall make orders which provide for face-to-face and electronic contact which accord with the above, as well as orders which permit the mother to telephone the child three times each week at her cost when the child is with the father and for the mother to ensure the father is properly informed of the child’s school progress and health and the like when the child is with the mother and that the mother is properly informed of any health or similar problems the child has while she is with the father.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 13 September 2010

Associate:

Date: 13 September 2010

[2010] FamCA 807

13 September 2010

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