Patrick and Whitmore
[2008] FamCA 241
•4 April 2008
FAMILY COURT OF AUSTRALIA
| PATRICK & WHITMORE | [2008] FamCA 241 |
| FAMILY LAW – CHILDREN – Parenting orders – father resident in the United States and mother resident in New South Wales - application by father included proposal for 7 year old son to live with him in the United States for a ‘substantial and significant period’ of 12 months or lesser period. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Patrick |
| RESPONDENT: | Ms Whitmore |
| FILE NUMBER: | SYF | 4075 | of | 2005 |
| DATE DELIVERED: | 4 April 2008 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 31 August, 29 September 2006, 15 March, 28 March, 8 August, 24, 25 September & 12 October 2007 |
WRITTEN SUBMISSIONS RECEIVED: 2 November 2007, 30 November 2007 and 17 December 2007
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Turner |
| SOLICITOR FOR THE APPLICANT: | Patrick Lim & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Hamilton |
| SOLICITOR FOR THE RESPONDENT: | Rice More & Gibson |
Orders
1.The child … (“the child”) born … April 2001 is to live with his mother.
2.The mother and father are to have equal shared parental responsibility.
3.While the father lives in the United States the child is to spend time and communicate with him as follows:
(a)at all times agreed between the parents;
(b)upon giving written notice as per order 4, in any calendar year for:
(i)two weeks in the June/July school holiday period each year; and
(ii)three weeks in the December/January school holiday period in 2008/09 and four weeks in 2009/10;
(c)by telephone, internet webcam and email at all reasonable times;
4.For the purposes of order 3 hereof the father:
(a)may elect for the child to spend either one of the periods referred to in order 3(b) in the United States each year;
(b)is to give to the mother notice in writing no less than one (1) month before the start of each school holiday period in order 3(b)(i) and (ii) of -
(i)his intention to spend time with the child according to order 3(b)(i) and (ii);
(ii)whether that time will be spent in Australia or the United States;
and if the time is to be spent in the United States the father is to consult with the mother and they are to agree who will accompany the child on the travel to and from the United States and failing agreement the mother is to accompany the child.
5.If the father is to spend time with the child in Australia the child is to be collected by the father at an agreed venue proximate to the mother’s residence, currently in northern New South Wales, and returned to the mother’s care at an agreed venue proximate to the father’s residence, currently to the south of Sydney, unless otherwise agreed.
6.If the father elects to spend time with the child in the United States
(a)the father is to pay -
(i)the costs of and incidental to the return airfares for the child;
(ii)the costs of and incidental to return airfares for the accompanying adult, being either one return trip with the accompanying adult remaining in the United States for the duration of the child’s visit and the father paying the reasonable costs of accommodation or two return airfares to see the child accompanied on both legs of his journey, the option to be at the election of the father;
(b)the care of the child is to changed over at the commencement and end of the visit at the main airport of arrival proximate to the father’s residence, unless agreed elsewhere.
7.The mother may communicate with the child in accordance with 3(c) when the child is in the care of the father.
8.To the extent it may be necessary, the mother is to authorise
(a)the Principal of any school the child attends from time to time to provide to the father such information or reports or written publications as are requested by the father and provided to parents by the school in the normal course;
(b)any medical practitioner or allied health professional treating the child to provide any report or information as is requested by the father related to the consultations and/or treatment.
9.Each parent is to keep the other advised of their residential address, telephone number and electronic contact details.
IT IS NOTED that publication of this judgment under the pseudonym Patrick & Whitmore is approved pursuant to s 121 (9)(g) of the Family Law Act 1975
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4075 of 2005
| Mr Patrick |
Applicant
And
| Ms Whitmore |
Respondent
REASONS FOR JUDGMENT
Proceedings
This is the determination of parenting arrangements for the parties’ son, who is their only child. He will turn 7 years of age in April having been born in 2001 while his parents were temporarily resident in the United States. He is a citizen of both Australia and the United States.
Background
The parents’ relationship began during 1999 and they established a common household around December of that year when the mother moved into the father’s residence, south of Sydney. At the time he held a position with an education facility. She was employed in an administrative capacity in human resources at the same facility. They separated in December 2004.
The mother has two daughters from a previous relationship: E (24) born in October 1983 and A (22) born in March 1986. E lives with her partner in Sydney and A, who is married, lives in Darwin.
The father has a daughter, M (14) born in January 1994. Some months after her birth the family was involved in a serious car accident. The father, who was driving, suffered serious injuries and M’s mother was killed. There has been raised here in the mother’s case the suggestion that he continues to suffer from the psychological and emotional consequences of that trauma.
As for their current circumstances, the father lives with M in the United States in a home he purchased last year. He holds a senior position at an American research institute. His professional circumstances are reflected in annexure J to the mother’s affidavit which gives some detail of his qualifications and background as well as the projects in which he is involved.
The mother lives with the child in northern New South Wales in rented premises. She is employed in administration.
The child attends school in northern New South Wales. Under the care of Dr P, paediatrician, he has been diagnosed as suffering from ADHD, for which he has been prescribed Ritalin, and Asperger’s Syndrome. His school has provided additional supports to cater to his special needs.
Orders sought
The particular form of orders proposed by each parent has changed over time. Those sought by the father at the hearing are to be found in exhibits 3 and 12, but his ultimate proposal is set out in the closing written submissions made on his behalf. Those sought by the mother are to be found in an annexure to her affidavit of 14 September 2007. For convenience, their respective proposals are set out in Schedules to these Reasons.
At the core of the dispute is the father’s proposal that the child spend a substantial period of time living with him and with M in the United States [with provision for assessment of his adjustment and return to his mother earlier if so advised] and the mother’s opposition to any lengthy stay along the lines he suggests. On her proposal, while ever the father is living out of Australia the child would spend time with him during school holidays which may include time in the United States. Each presents consequential orders to support their primary positions about time and place, but otherwise they agree to share parental responsibility and that communications with the child, for either parent, should occur on a liberal and spontaneous basis by telephone, webcam, and email.
Approach
In making a parenting order, the best interests of the child are the paramount consideration [s 60CA], informed by certain stated objects and underlying principles. The objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests; by protecting children from exposure to physical or psychological harm; by ensuring they receive adequate and proper parenting to help them achieve their potential; and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. The underlying principles, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; a right to spend time on a regular basis and communicate regularly with both parents and significant others; a right to enjoy their culture; and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
There is a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)], which is about decision making and not time, though it does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)].
If the parenting order provides, or is to provide, for equal shared parental responsibility there is an obligation to consider whether it would be in the best interests of the child to spend equal time with each parent and whether that would be reasonably practicable and if it is to make that order [s 65DAA(1)]. If not, there is an obligation to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether that would be reasonably practicable [s 65DAA(2)].
The factors which determine best interests are ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3) – see also (4)] and the factors to be taken into account in determining what is ‘reasonably practicable’ are the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)]. ‘Substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)].
Where the presumption of equal shared parental responsibility does not apply, the outcome is determined by reference to the primary and additional considerations having regard to the stated objects and underlying principles.
Those assessments will be made in light of the further background to be canvassed and the making of such findings as are necessary to the decision required.
Evidence
In presenting his case the father called evidence from three witnesses who live in the United States: Dr A (senior scientist and long term friend), Dr M (work colleague), and Dr D (psychologist whom he consulted on two occasions). In her case the mother called evidence from Dr P as well as those involved in one way or another with the child’s schooling: Ms F, Ms S, and Ms E.
There is also in evidence a Family Report prepared by Family Consultant, Ms B, whom I shall identify on occasions as ‘the reporter’, and she gave further evidence in response to questions asked of her both prior to the hearing and at the hearing.
Credit/reliability
There is a brief submission for the father to the effect that there is nothing arising from his evidence or his demeanour to suggest he is not a credible witness whereas the mother’s anxiety about her own relationship with the child affects her reliability as a witness. There is no elaboration on either proposition. There is also a submission for the mother to the effect that the father’s propensity in cross-examination to make lengthy speeches about matters he felt suited him, rather than respond to the question, demonstrates his controlling nature which is reflected in his attitudes generally.
For my part I do not see the need to make findings about their reliability as an historical reporter of past events nor even about the veracity of their evidence. They do give different versions of some past events - not unnaturally, coming as it does from a subjective standpoint. But when they are examined the differences are more reflective of perception or belief than an attempt to mislead or manipulate the outcome by offering a false or distorted account of what had actually occurred. I approach the factual background from that footing.
But inevitably the evidence has ranged wider than fact and each has conveyed their own attitudes and opinions or has offered an interpretation of the actions and attitudes of the other. In those areas, it strikes me that objectivity has been blunted to one degree or another by strong feelings and a commitment to securing what each regards as an outcome aligned with their son’s best interests and, it has to be said, the more detached approach to the evidence will not in all instances lead to a shared outlook or result in the same analysis of a particular occurrence or development as that being propounded. If it is necessary to express a view about these matters – and the closing submissions by both counsel make it so in many areas – that will be done as the background and relevant statutory considerations are discussed.
Family Report
Before coming to those matters, this is a convenient point at which to deal with those parts of the submissions for the father which are critical of the evidence of Ms B and related to the weight that can be attached to it. It is said, for instance, that the positive observations of Dr A, Dr M and Ms F, who each saw the child with his father in a variety of situations, should be preferred to the ‘speculation’ of Ms B who saw the child briefly when he was highly likely to be anxious, where he had to see his father in the presence of his mother, and in circumstances where he had not seen his father for some months. This same classification of her evidence is repeated in propounding the argument that the importance of enhancing the child’s relationship with his father and his sister M outweighs any ‘short term anxiety issues’ which are the subject of ‘speculation’ by Ms B. There is also criticism of her qualifications to the effect that she has a Bachelor of Social Work and no qualifications in psychology, or any post graduate qualifications, and the point is made that she did not read material the father offered to provide to her before coming to her opinions.
In my assessment the criticisms are unfounded. Ms B’s expertise and her considerable experience, as she outlined it, do qualify her to express the opinions she has in this case and it is a misunderstanding to see those opinions as capable of stemming only from the branch of learning psychology occupies. Equipped with the necessary expertise and experience, she has approached her role in a professional and competent manner and, insofar as she has drawn conclusions or expressed opinions, she has identified sufficient foundation for them. The expression of opinion is not a science - obviously there is an element of ‘speculation’ to it - but when it is informed by expertise and experience, as it is here, and sufficient grounding is given for it, as it also is here, then she is entitled to advance the opinions she has and it is wrong to dismiss them in a wholesale way as merely speculative. As for declining to read material provided by one parent, she is not the arbiter of fact, nor is she responsible for the evaluation of the whole of the evidence, and it is legitimate for her to determine the information necessary for her to complete her professional task. If her decision to restrict the receipt of information is shown to reveal shortcomings then the weight her evidence attracts will be evaluated accordingly. In this instance, no shortcomings were demonstrated to flow from her decision and her evidence stands to be given its due weight. Some of the evaluations later recorded draw support from it and rely upon it.
In the meantime it can be noted that from her interviews and on what was available to her, Ms B was of the opinion that the child should continue to live with his mother and spend time with his father both in Australia and the United States during holidays in December/January and in July as well as other times agreed and that he be accompanied by one of his parents when he travels. Otherwise frequent telephone, email and webcam communications should be maintained with his other parent wherever he is.
In light of this opinion, she was later asked the age at which it would be appropriate for the child to spend between 12 and 18 months living with his father in the United States. But unsurprisingly she could not nominate any particular age because, as she pointed out, there are many variables. However, she noted some developmental and life events that might assist determining when the child might feel more secure being separated from his mother: how his relationship with his father develops; the child’s own confidence and sense of security in his father’s care; the level of empathy between the child and his father; his ability to maintain a sense of connection with his mother as the person he most associates as having met his needs; his views at the time; and the age at which he seems competent to make such choices and understand the nature and consequences of his choice; and how or to what extent his current behavioural difficulties develop and their impact on his capacity to adjust to change. She went on to comment that children of late primary school age are likely to have developed the cognitive capacity to sustain important relationships over an extended period of months when those connections are solid and nurtured and when their memories and shared experiences are kept alive and through indirect contact. She also said that if the child has an ongoing, good quality relationship with his mother, he may find a long absence from her – such as 12 months – difficult at any stage, but especially while he is still at school and dependent. All in all, these many unanswered variables make it too difficult to predict.
But if the question of his going to the United States for an extended time is to be revisited, it might be done at the beginning of the last year of primary school so any possible change could coincide with the change in his schooling and peer group brought about by his move to high school. However, she did also point to some pitfalls of monitoring his adjustment and deferring his choice until he is older – he may feel pressured to choose and the continuing uncertainty about where he lives may inhibit him from becoming attached to friends and pursuing activities and fully integrating into the home and community where he is living, leading him to feel he does not truly belong anywhere.
I shall return to other aspects of the reporter’s evidence later but turn now to the further background.
Background
When M was about 18 months of age, the father returned to full time work. As I apprehend his circumstances at the time, he had the house south of Sydney [around 50 kilometres or so south of his workplace] where M was cared for over time by different nannies while he stayed during the week in an apartment in the city, or she was cared for by students at the father’s workplace where he also stayed from time to time. That changed after December 1999 when the mother and her two daughters moved into his home. M was due to start her schooling in 2000 and the father made the decision she would be enrolled at the local School. In making the move, the mother gave up her rented premises and, while she continued to work at the same facility as the father, she scaled back her hours and wound up her private consulting business. Her daughters continued to attend their school in the city, near to the facility at which she worked. This meant she and her daughters commuted between their home south of Sydney and Sydney each day for work and/or school. As for the father, he continued his work at the educational facility but he did not commute with the same frequency; he stayed at the city apartment and returned to his home on Wednesday nights and weekends provided he was not travelling either overseas or within Australia.
It is accepted that in the months to follow the mother assumed significant responsibility for M’s day to day care in addition to her work and her responsibilities for her own children. The flexibility she put in place around her own work enabled her to attend interviews with M’s teacher and accommodate her sporting and other school events as well as provide a stable family environment. In his account of her role at this time the father notes she ‘participated in the care of [M] but this discounts what must have been a significant shift on to her of the day to day responsibility and availability brought about by the changes she made to her arrangements and those of her daughters. One strand to the mother’s case is that the father has never made any compromise in his career to accommodate his parental responsibilities and she points to what occurred at this time as an example.
Later in the year, in August 2000, the family went to the United States during the father’s leave although E remained in Australia to continue her schooling. She became a boarder at her school. After some initial travel they established themselves in the United States where the father took up a position which again involved regular travel. The mother worked part time as a nanny for a number of months and then the child was born in April the following year.
A few months after his birth the mother returned to Australia with the baby, A and M and resumed living at the home south of Sydney. A returned to school in the city and M to the local School. The father returned in September.
Again the mother and her children commuted between their home and Sydney and there can be no doubting the inconvenience for her of the travel between their home south of Sydney and Sydney. The father returned to work at the same facility and again he lived in the city apartment during the week and commuted to his home south of Sydney on Wednesday nights and weekends when he was not absent on work related travel either overseas or within Australia. The mother maintains he was preoccupied with his work, travel, and his research and that he demonstrated little interest in the child during this period.
During 2002 M was diagnosed with ADHD and prescribed Ritalin. From the mother’s point of view this confirmed some earlier concerns she had about M’s need for more attention than her own daughters had required when they were her age. From the father’s perspective, he now considers the diagnosis to have been incorrect; indeed, since he has lived in the United States he stopped her medication at a time when he saw her achieving consistently high academic results at school. Obviously this was some time after the end of 2004 since in his email to the mother of 29 November 2004 he refers to M’s behaviour after she had taken new medication and his request to the school to monitor any underperformance, adding ‘the downside is a little more activity in the evening, but overall it is better for me to handle.’
To return to earlier events, throughout 2003 the father was frequently absent - he took M to visit her maternal grandparents overseas and he was also away for varying periods during April, June, October, November and December – while the mother cared for the child the subject of this judgment and the other children at their home south of Sydney. That same year there was a family holiday to Western Australia and it was around this time that the father told the mother he was unhappy with the way she and her daughters were treating M - a sentiment not shared by the mother.
It was during that same year the father was offered a two year contract in the United States. Since it was accepted when discussing the prospect that the mother would remain in Australia to care for the child and M [A was due to complete her secondary schooling at the end of that year] taking up the offer would mean the father would be absent from the family for extended periods and so discussions revolved around plans for the father to return to Australia on occasions and for the mother and the children to travel at times to the United States. Budgets were prepared with this in mind [exhibit 7].
He did accept the offer and he left for the United States in July 2004. He took M with him. Having indicated earlier his intention to take M, the mother opposed his plan - on the basis it would be unsettling for M especially as the diagnosis of ADHD required she have a stable environment - but she considered the decision to be one for M’s father. On the way to the United States the father left M with members of his family in Ireland for a month and then with her mother’s relatives in Europe for another month before settling in the United States.
He then asked the mother to come to the United States to help establish M in school, but she declined. She explains she was angry that he had not told her of his plans to leave M in Ireland and Europe and that he would expect her to come on such short notice despite her work and other commitments. He arranged for his sister to come and assist with M’s schooling instead.
Over the following months communications continued but it seems the relationship was unravelling. The father and M returned from the United States for a visit in mid-December 2004 and it was during this visit that the relationship ended. On the mother’s version of it, she was given an ultimatum - either she come to live with him in the United States or the relationship would be over - and she chose the latter. The father returned with M to the United States at the end of December and they have lived there since, making visits back to Australia on occasions yet to be mentioned.
It is conceded in the submissions made for the father that his decision to accept a position in the United States has meant ‘significant logistical difficulty’ for his contact with the child. But it is argued that his decision to accept the offer had been discussed and agreed, it was not in ‘blind pursuit of his career’ as the mother’s case suggests, but was part of an arrangement between them to implement a lifestyle change for the family in the longer term; namely, he would earn sufficient funds for the family, retire and become a house-husband with a larger role in the children’s lives while she would pursue her ambition to be a writer. Their establishment of the company for eco-tourism purposes attests to the plan. The mother has a different perspective about it. Yet whatever might have been planned or agreed to earlier, it remains the case that the father did not return to Australia at the end of the initial period contemplated but stayed on in the United States despite the changed circumstances their separation brought about. He has since purchased a home there.
After the separation the mother remained living with the child at the home south of Sydney and the father did not return to Australia for another year. In that time there were communications about the child’s arrangements which went unresolved for reasons they see differently. The father says that over the first few months there were over 59 emails exchanged, in many of which he had requested the mother establish telephone and webcam communications via the facilities he had purchased in 2004, but without success. Correspondence annexed to affidavits gives some indication of the course events took:
(i)In a lengthy letter dated 21 April 2005 from his solicitors, dealing mostly with property settlement issues, the father raised the parenting arrangements. Complaint was made about lack of genuine effort to promote and encourage contact, the use of the webcam was specifically raised and it was suggested the child be allowed to participate in ‘spontaneous’ video conversations with his father and that be facilitated by leaving the link open at all times. As for other contact, the father proposed liberal overnight contact whenever he is in Sydney. The view was expressed that it would be in the child’s best interests to develop a relationship with his father before he starts school and that he should spend 3 – 6 months in the United States each year; after he commences school, he should travel, initially accompanied, to be with his father during school holidays. The parenting passages of the letter concluded by noting the father’s expectation that he would be consulted on all issues relating to the child’s long term care and welfare.
(ii)Absent a response, a further letter was sent on 8 June foreshadowing Court proceedings and on 23 June the mother’s solicitors replied with apology for the delay. The letter addressed the property matters but was silent about the parenting issues.
At the end of September 2005 the father commenced the current proceedings. The mother filed her response in November. In the meantime, on 27 October 2005 interim orders were made by consent providing for the child to have contact with his father:
‘(a)By web-cam every Saturday and Sunday at 8 am (Sydney time) and liberally and spontaneously at all other times;
(b)In the event that any party is unable to participate in the scheduled contact referred to in paragraph (a) above then such contact shall be re-scheduled to another mutually convenient time slot.
(c)Face to face contact whenever the father visits Sydney. The mother may remain within sight but at a distance in the initial such contact periods until the child is comfortable with the father. Provided the child is comfortable then for overnight contact.
(d)Such other contact for example, telephone, letters and cards as is convenient to the parties.’
In December 2005, almost 18 months after he had left Australia and a year after their separation, the father and M returned to Australia for the first time for a brief visit. They stayed at the home south of Sydney with the mother and the child.
Much later, in his discussion with the reporter in April 2007, the father said he had been depressed from around February 2005 for about two years, the separation had reactivated loss and grief he had experienced in the past, and he had been prescribed anti-depressants and tranquilisers. He said he had seen a number of professionals but he had found helpful the psychologist he consulted at the end of 2006 for an assessment of his overall cognitive functioning [paragraph 18]. The psychologist is Dr D whose evidence will be mentioned later. He offers these difficulties in explanation for his long absence at such a critical time in the child’s development.
After he returned to the United States from this first return visit the mother vacated the home south of Sydney. She did so at the father’s request. She went to live in northern New South Wales. She says her decision to settle there was motivated by a number of considerations: it offered more affordable accommodation than Sydney; she was offered full time employment in the area that gave her the flexibility she needed to care for the child; she would be closer to extended family [she has an uncle living nearby and other relatives some distance away]; and the environment would provide the child with opportunities for his future education and development.
Yet the father is critical of her for moving to northern New South Wales. The submissions on his behalf link her decision to the proposition that she is bent on undermining his relationship with the child; by taking the child away from the Sydney area she has made it more difficult for the father to have contact with the child when he is in Australia. But the criticism has no sufficient grounding. Being asked by the father to leave the home, she was forced to make a decision about where to go and it is apparent she gave it consideration with appropriate focus on her considerable responsibilities for the child’s care. The father had returned to Australia only once since their separation over a year before, there was nothing then to indicate the frequency he was proposing to return to Australia, and he had after all exerted his right to choose his residence much further from Australia than northern New South Wales is from Sydney.
During 2006 there were further discussions, including through solicitors letters, about the child’s arrangements. On 14 February 2006 the father had his solicitors write about matters relevant to their separation and the child’s future arrangements were also raised. Regular and frequent video contact was now occurring and in his father’s view the child was sufficiently comfortable with him to be in his care unsupervised for block periods of time. He proposed the child spend time with him whenever he returns to Sydney and that the child visit him overseas during school holidays if he remains away from Australia for the foreseeable future. There were other exchanges between solicitors but the mother responded herself to this by letter dated 6 March. Much was said of other matters but on this point she maintained the view she had expressed previously; namely, the child was not of the age or stage of maturity and nor did he have the degree of emotional attachment or comfort with his father to spend extended block periods with him during school holidays, either in the United States or in Sydney.
In March 2006 the father returned to Australia and it was arranged that the child would spend 5 March overnight with his father at the home south of Sydney. The mother brought the child from northern New South Wales to Sydney and drove him to the father’s home, the plan being that she would return later in the evening to spend the night at the home also. The mother gives a lengthy account of what occurred in notes attached to her affidavit and the father gives his version in paragraphs 35-42 of his affidavit. Their approach to what occurred exemplifies how differently they observe and interpret their son’s behaviour and reactions and how they each interpret their own and the other’s part in that. A summary will suffice:
(i)The mother describes the father being anxious beforehand about spending time with his father and she describes the change in his behaviour whenever the topic arose: tears, wanting her there with him and not wanting to go despite her reassurance. After he went into his father’s care she returned to Sydney. The child later telephoned sobbing and distressed; the father took the phone and told her he had hurt his foot during a visit to a neighbour. She received another call from the child some time later, he was again sobbing, and there was a third call later which was ended abruptly. She arrived at the father’s home later and went to bed. The child woke during the night and cried for about an hour before the father brought him to her – she did not want to interfere – but the child remained unsettled and she had a sleepless night trying to settle him.
(ii)On the father’s description of the events preceding the first of the child’s calls to his mother, he had hurt his foot while visiting a neighbour. He did not cry but turned to his father and ‘in his eyes was a look imploring me to give him comfort’. He did comfort him as the child began to sob. The father comments that the child reaching out for him was surprising ‘as most people had said he would only want his mother in such circumstances’ – ‘inexplicably at the time, I was emotionally very moved and became very weepy’. Later the father suggested to the child that he call his mother ‘for that little bit of added reassurance’. He made one long call and three other calls of short duration. The father says he spoke with a ‘qualified analytical psychologist’ and ‘we concluded that [the child] had used the event intuitively to seek out an emotional bond with me and that, in my own emotional response, I gave him what he wanted and needed, and this was something that has been missing for some time, and was a significant and important event.’ He says the child awoke during the night sobbing and while he tried to comfort him, it got worse. The child did not ask for his mother, although he knew she was nearby, but he took the child to her to avoid criticism. The crying continued - ‘that is, his waking was not caused by him being with me, and being with his mother did not of itself reassure him’ – and he later learned that the child was simply making a request for a drink and once he had received it he was quiet. He calls the event a ‘small learning step’ and there was no repeat of the problem. Breakfast was without episode.
In August 2006 the father visited Australia again, on this occasion with M, and during that time he collected the child from northern New South Wales. They spent the first day around the district and the child returned home that night. His father collected him the following morning and they made the 11 hour journey to the father’s home for the weekend. The father describes the visit in some detail, the upshot being that the child was relaxed and happy and he had no problems either with the travel or in being away from his mother.
This was followed by further interim orders made by consent on 29 September 2006. Amongst other things, the orders provided for the child to live with his mother and arrangements for communication and contact with his father were agreed in these terms:
‘4. For the purposes of these orders only, that the father may exercise communication and spend time in […] in the United States of America with the child as follows:
(a)For a block period of time commencing on 9 January 2007 until 29 January 2007 subject to 4(b) below.
(b)The mother shall spend time with the child in […] in the United States of America commencing at 9:00am and concluding at 5:00pm on
(i) Saturday 13 January 2007, and
(ii)Wednesday 24 January 2007.
(c)That the father shall pay for the costs of all return airfares for the child and the mother to effect spending time with the child pursuant to clause 4(a) above. The airfares shall be economy return flights by the most direct route between Sydney, Australia and […], United States of America
(d)The mother and father may exercise liberal and spontaneous telephone, internet web-cam and email communication at other times with the child.
5. For the purposes of these orders only, that arrangements to give effect to clause 4 above include:
(a)That collection and delivery of the child shall take place at […] (“the Library”) in […] in the United States of America.
(b)That the mother communicate with the father by telephone after arrival and collection of bus tickets at [the American] airport and confirm the estimated time of arrival at the Library where the mother shall deliver and the father shall collect the child at the commencement of the block period of time referred to in clause 4(a) above.
(c)That the father shall deliver and the mother shall collect the child from the Library at conclusion of the block period, at a time confirmed by the mother to enable the mother and child to commute by way of bus from [the father’s suburb of residence] to [the American] airport to allow appropriate time to effect the scheduled time of departure for the return flight of the mother and child to Sydney, Australia.
6. The child shall travel to and from the United States on an Australian and/or American passport each of which shall be applied for and held by the mother. The father shall approve and do all acts and execute all documents necessary to give effect to the mother’s applications for an Australian and an American passport for the child.
7. That on or before 9 January 2007, the mother provide to the father, photo identification for the child issued by either the Australian and/or American Governments.
8. That during visits to Australia, the father shall confirm his request to spend time with the child in writing to the mother and the mother shall confirm acceptance or otherwise by return within each preceding month in which such time is to be effected.9. That the mother communicate with the child in accordance with the provisions of clause 4(d) above while the child is in the care of the father.
10. That the mother and the father shall be restrained from passing information or messages through the child or any third party, other than their respective solicitors, to each other.
11. The mother and the father shall not make any disparaging remarks in the presence of the child in relation to each other or in relation to a relative of the other.
12. That the mother authorize the Principal of any school the child may attend from time to time to provide any oral or written information that the father may request at any time in relation to the child’s academic progress.
13. That the mother and the father authorize any medical practitioner, psychologist, counsellor or other health professional treating the child to provide any oral or written information that the father or mother may request from time to time in relation to the child’s health.
14. That the mother sign and date an authority provided to her by the father for the purposes referred to in paragraphs 12 and 13 above.
15. The mother and the father shall each advise the other of any changes in address, telephone, email or other contact details to give effect to these orders.
16. Either party, at their own expense, may make an application to file a copy of these orders within the jurisdiction of the United States of America.’
As the orders make plain, it was envisaged the mother would travel with the child to the United States, he would spend three weeks with his father and M, during that time there would be two separate days he would spend with his mother and there would also be regular telephone calls with her. Their later accounts of the visit, to the reporter and also in their evidence, again reflect quite different perspectives about their son’s behaviour, reactions and needs.
Despite her apprehension or uncertainty about the proposal, it is apparent the mother supported the visit by preparing the child for it and encouraging and reassuring him in positive terms. Even so, she describes the child as reluctant to return to his father after the second day visit with her and as confused about why she was not also present. She also describes him as being upset at times during the telephone calls when she had to reassure him.
On the other hand, the father describes the child as being at ease during the visit and that he enjoyed spending time with him and with M as well as participating in the various activities undertaken. He describes the time the child spent with his mother as distressing for him – in his view it constituted a reminder for the child of the tension between his parents – and while the child was upset by the telephone calls with his mother, this lasted only as long as the call. His perspective on these matters is supported by two of his witnesses:
(i)Dr M observed the child to be content and comfortable in his father’s home when she was present, he seemed to enjoy being with his father and his sister, he seemed happy when he was at the research facility where his father works, and he was able to play well and co-operate with other children while engaging in a range of activities. She saw the child speaking to his mother by telephone on two occasions. He initially seemed happy and in good spirits but as things progressed he became agitated and upset, telling his mother he missed her and wanted to see her; however, when the call ended he was smiling again.
(ii)Dr A observed the child during a visit to his home in the United States. He described him as happy and well behaved, respectful, highly active, eating and going to bed on time without complaint. He also observed the child speaking to his mother by telephone twice daily when his demeanour changed – he was more subdued – and when the call was over he returned to being as active as beforehand.
In his later discussions with the reporter, the father agreed that in the face of the child’s upset during telephone calls [often held via speaker phone] the mother was consistently calming and reassuring towards the child, but he expressed other views about the telephone scenario, as reported in this passage [paragraph 16]:
‘…[the child] consciously rehearsed these expressions of upset and he believed they were “games” aimed at [the child] pleasing his mother and that [the child] was “acting upset”. On the other hand, [the father] said that on one occasion [the child] “lost it” (i.e. was over-emotional) during one of these calls and he thought this was because “hormones flow in him”. He suggested that it would be better [the mother] and [the child] speak during the day when [the child] was “not as tired”.
As I assess it, having been appropriately prepared and encouraged as would be expected, it is entirely plausible that the child would enjoy his time with his father and M. But it is also entirely plausible that seeing his mother or hearing her voice would stir him emotionally - he was only 5 years old at the time - and yet he could return fairly quickly after the phone call had ended to the more immediate pleasures of whatever was happening around him. That he did so does not lead inexorably to the conclusion that his distress was ‘rehearsed’ or that he was ‘acting’ to please his mother or that she was undermining the situation in some way if that is what is being implied; it merely requires some empathy for how the situation might feel for a child so young and, in the child’s case, with a particular history of parental care. If the father’s case seeks a finding to the effect that the mother is ‘working against’ him and the child being together [see his affidavit about an earlier visit] or that she worked to undermine the visit to the United States, it is rejected.
There were two further visits, both in Australia, before the evidence concluded on 12 October, by which time the father had returned to the United States and participated in the conclusion of the hearing by telephone. The first of those visits was around the time when the report interviews were conducted in April. At the time, as noted earlier, the child had not seen his father in person since the January visit to the United States and he spent two days with his father then. The father describes him as happy and not distressed by his mother’s absence. The second visit occurred during 21 and 23 September 2007 when the father again went to the mother’s home in northern New South Wales and brought the child back to Sydney for the weekend. While in northern New South Wales he visited the child at his school. Ms F describes the child as being very excited to see his father at the school and he introduced his father to his friends.
In his evidence and in the closing submissions on his behalf, the father is critical of the mother, contending she was reluctant to encourage his communication with the child, she was resistant to contact and it was only after many written exchanges and court proceedings that her agreement to one proposal or another was able to be obtained. She denies it and the submissions in her case reject the criticisms as unwarranted:
(i)Acknowledging the complaints about the webcam early in the separation, it had been unreasonable for him to insist the facility be turned on permanently and once the technical difficulties had been fixed it was made available regularly.
(ii)He had only visited Australia five times since separation in December 2004, on each occasion she had seen to it that the child was available to spend time with his father, and she also supported the child’s visit to the United States in January 2007. What she had resisted were the lengthy periods of time he proposed because of the previous scant relationship the child had with his father and his young age. On the contrary, she had no objection to him seeing the child more regularly in Australia, but he had not taken advantage of that – his return to the United States when the hearing was stood over part heard for a time rather than take up her offer exemplified that – and it was his choice to live out of Australia rather than within reasonable proximity to the child.
(iii)Apart from those matters, the father describes himself during the first two years following separation as a ‘basket case’ being ‘cognitively dysfunctional’, ‘not in a fit state’, ‘crying every morning and evening’, ‘considering suicide’ and ‘I was not capable of thinking about it’ was his answer to the question whether he had thought about bringing M back to Australia to see the child. He had said nothing in his affidavits about any psychological or related problems likely to hinder his ability to care for the child in this period or that he had seen a number of therapists during this time.
Plainly there have been times when the mother has resisted proposals put by the father, whether for permanent access to the webcam facility or related to time, but in each instance her reasons were related to her view that the proposal being put was not consistent with the child’s interests at the time. In my assessment, the stance she took was not unreasonable in the circumstances. The evidence satisfactorily establishes, and I find, that the mother is not resistant to communication or contact between the child and his father and she does support his relationship with his father which must accommodate the unusual circumstance of vast distance and infrequent face to face contact for the past 3 – 4 years.
The reference to the father’s description of himself as a ‘basket case’ leads to the evidence of Dr D which can be dealt with relatively briefly because in the final analysis nothing of any enduring relevance arises from it. He saw the father for about four hours in September 2006 and again in June 2007 on the father’s initiative. He has not seen him since. Having made an assessment of his cognitive functioning and having discussed on the initial visit the father’s concerns, including concerns about diminishing levels of concentration, on his second visit the father reported feeling much improvement in his cognitive functioning. From his involvement, Dr D did not assess him as being at risk of injuring himself or a child in his care and nor was he presenting as depressed at the second and last visit. He did relate some of the difficulties the father was experiencing to the absence of contact with his son.
In January 2007 the child started school after return from the visit to the United States. It was the mother’s decision to enrol him at S School and she did so after making lengthy enquiries about its attributes and those of other local schools. The father is highly critical of her for failing to consult him before making the decision, alleging her unilateral decision disregarded his rights as a parent.
However, in my view this criticism is also misplaced. There is a long letter dated 19 December 2006 from her solicitors which canvasses at length the issue of the child’s schooling for the following year and none of what was said there was shown to be wrong. Amongst other things it records earlier discussions the mother had with the father about the child’s schooling, before and after the move to northern New South Wales, the lack of importance the father said on many occasions he attached to where a child attends school until the age of 12, the extensive research she had done into various schools in the local area, and her report to the father of steps she took after the first visit to M School, along with her willingness to discuss it with him. In circumstances where the father had not visited northern New South Wales to inspect schools, and obviously was not familiar with the particular attributes of the school he was nominating, and given his formerly nonchalant attitude towards early schooling, the steps she took were reasonable and practical. Rather than exclude him in a high handed way as his case suggests, she had informed him what she was doing and she had indicated a preparedness to discuss it.
As it happens, the school has been supportive on issues related to the child’s behaviour and Dr P’s diagnosis. Issues first arose about his behaviour at pre-school – he was described as being ‘loud, aggressive, uncooperative, and restless’ - which led to the referral to Dr P who made the diagnoses mentioned earlier and the prescription of Ritalin. Dr P has reviewed the child’s behaviour and his medication over time, as reflected in his various reports. Despite submissions from both sides to the contrary, I am satisfied from Dr P’s evidence that nothing is to be made of the mother’s preference to administer medication earlier rather than withholding it for a period of time, nor about her having reduced the dosage on her own initiative, and nor is anything to be made of the father having failed to administer the medication on an occasion while in his care. It is accepted that in all likelihood the child will require medication and special educational support throughout his schooling. Whether or not he is a ‘gifted’ child, as his father believes, is too early to tell in Dr P’s opinion.
At an earlier time the father did not agree with the diagnosis - [the child had shown no symptoms while in his care] - and he told the reporter during the April 2007 interview that he had consulted the DSMIV and did not believe the child met the diagnostic criteria for either ADHD or Asperger’s Syndrome. He expressed concern about the child taking medication he described as ‘carcinogenic’. The child’s difficulties, so he considered at the time, could be the result of ‘single parenting’ by the mother. At the same time there was discussion of M’s diagnosis with ADHD and being prescribed Ritalin for a couple of years and the father had considered ADHD may be part of his own history, but he had discarded that when he had the neuropsychological assessment at the end of 2006. However, the diagnosis and treatment prescribed by Dr P appears to be no longer an issue from the father’s point of view. That is clear from the closing submissions on his behalf which are to the effect that since he had the opportunity to meet with Dr P and others and discuss the child’s behaviour, he now understands and agrees the prescription of Ritalin is appropriate and he undertakes to adhere to the medical advice given by Dr P. As the orders he seeks propose, if the child is to spend substantial time with him in the United States he would have the child monitored by a paediatrician and adhere to the advice of that paediatrician, although he remains of the view that alternative options of treatment should be explored.
Clearly the mother has worked with the school to harness resources directed to the child’s special needs and a program has been designed to meet them. The sort of challenges he faces are apparent from the descriptions given by those who have observed him in that setting to assess his needs. Ms S, an additional needs consultant, saw him in the classroom on two separate days in August last year and she made recommendations about strategies to address his learning needs. Ms E, an additional needs teacher, had applied for funding support as a result of Dr P’s diagnosis and Ms S’s observations and recommendations. The upshot is that the child will receive individual assistance each week through a specifically designed individual program to be devised collaboratively by those involved along with a social skills program, the introduction of a visual communication device, professional development for the child’s 2008 teacher and his mother, and the use of social scripts to assist him develop his social interactions with peers.
The mother has enrolled the child in music which she says has been beneficial for his behaviour and social skills and he also has swimming lessons. The father commented to the reporter that she had done ‘a superb job’ in assisting the child with social skills.
Future proposals
The proposals about the child’s future are reflected in the orders sought and they are supported by evidence about practical matters such as housing, schooling, special needs support, parental availability, support of the child’s important relationships and other matters. To the extent those matters along with related arguments have not yet been mentioned, it will be convenient to do so in the evaluation of the best interests considerations.
Best interests - considerations
Primary considerations
(a) the benefit to the child of having a meaningful relationship with both …parents
As a component in the evaluation of a child’s best interests there is complexity inherent in this factor which has not yet been authoritatively discussed so far as I am aware although there are by now a good many first instance decisions about it. In Mazorski and Albright [2007] FamCA 520, for example, Brown J referred to the importance of children having a meaningful relationship with both parents and the need to protect children from physical and psychological harm, being set out in the objects and reiterated as primary considerations in s 60CC, as the ‘two pillars’ on which the parenting provisions of the Act rest. Her Honour concluded that the expression ‘meaningful relationship’ was qualitative and not strictly quantitative, observing it to be one which is ‘important, significant and valuable to the child’. With respect, I agree. But of course importing those words does not make its work as a primary consideration any clearer. Self-evidently, if the child has a meaningful relationship with both parents – in the sense that the relationship is ‘important, significant and valuable to the child’ – the child will benefit. As one of the additional considerations is specifically directed to the nature of the child’s relationships, including with each parent, it is unlikely to be the place for the evidence about that to be evaluated. More likely the function of this primary consideration is to serve as a reminder, when coming to a view about the child’s best interests, to consider the benefit to a child of such a relationship, which is consistent with the object expressed in s 60B(1)(a) of ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, ‘to the maximum extent consistent with the best interests of the child’.
That aside, submissions have been made for both parents under the heading of this consideration. Those for the father highlight the benefit for the child of having a meaningful relationship with both parents and contend that would be achieved by having ‘substantial and significant’ time with his father at his home in the United States. It is said there will be a substantial benefit to the child if he has a more extensive relationship with his father than has been ‘permitted’ in the past by the mother, since his relationship with his father as been ‘limited’ because of her attitude and, if the child were to move to the United States as his father proposes, his relationship with his father would be enhanced yet he would not be deprived of his relationship with his mother.
The central difficulty with the thrust of this submission is the premise that the nature of the child’s relationship has been inhibited or limited by the mother’s attitude. There are many factors that must necessarily impact on the child’s relationship with his father – the early history of his care; his father’s periodic absences for work purposes during the first three years of his life; his father’s prolonged absence from the time he was three years of age for a period of 18 months or thereabouts except for one brief visit after the first six months; and the relatively few visits of short duration he has had with his father in the years since.
The submissions for the mother argue that the child’s meaningful relationships are to be seen in a context where his mother is living in Australia and his father in the United States because he ‘chooses’ not to return to Australia despite his ability to do, knowing that moving to the United States is not an option for the mother. Were his father to choose to return, he would be closer to the child and able to have more regular contact with him. The proposal to uproot the child and have him go and live in the United States is said to be no answer. While the child’s mother supports the relationship with his father in the circumstances that prevail, her opposition to this particular proposal derives from a number of factors related to the child having been cared for by her primarily since birth; his relationship with and attachment to his mother; his young age and the impact of being separated from her for extended periods which has not occurred in the past; the impact on him of removal from a known and familiar environment and social setting; and the support he has in meeting his special needs in his current environment. His father has not maintained a meaningful involvement in the child’s life by spending regular time with him.
These arguments are central to the decision required and are best left to later.
Additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
There is no suggestion from either parent that the child is of an age or stage of his development or has a level of maturity where any views he might express about his parents’ proposals should be given weight. Quite rightly, the reporter did not directly seek his views but she did make an assessment of his level of maturity and his attachments and relationships with his parents which are relevant to the decision. She described his general presentation as ‘awkward’ –
‘He stood, somewhat frozen, and whispered in his mother’s ear. [The mother] was reassuring and he became more confident as a result.’
He was noted to clearly have difficulties in some areas of his development and he did not present as mature and resilient but tended to regress when anxious and on having to separate from his mother:
‘[The child] generally presented as somewhat awkward and uncertain. He appeared to get anxious when confronted with ambiguous situations and would quickly look to his mother for direction and reassurance. [The child] often avoided eye contact and at times he was difficult to understand as his speech seemed to regress.’
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons …
The evidence establishes that the child has a close relationship with his mother. It is not part of her case that he has anything other than a good relationship with his father. It can be accepted he does. At the time of the report interviews, the child had not seen his father for several months, but he had a positive reaction to first seeing his father though the setting understandably introduced some awkwardness:
‘…[The child] smiled and seemed happy but was also obviously nervous and reached out to hold his mother’s hand.’
I am satisfied, therefore, that the child has a good relationship with each of his parents.
But the history of his care to this point is not a usual one and so it comes as no surprise to read the reporter’s assessment that the child is more closely attached to his mother:
‘[The child], understandably, demonstrated a stronger attachment to his mother. When, as he was leaving, [the child] was told he would see his father in a couple of days, [the child] said “no”. His mother, possibly correctly, appeared to think [the child] was worried this meant that he was leaving her to go away with his father, and she successfully reassured him it was not for a “holiday”. At the end of a subsequent appointment, [the child] was told he would see his father the next day and be going on a trip with him. [The child] immediately showed resistance and spontaneously grabbed his mother’s breast and snuggled into her side. [The mother] was positive and reassuring about the time [the child] and his father would spend together, and his father used humour and distraction to further enthuse and reassure [the child].’
The submissions for the father concede – if that be the word – that the child is closer to his mother but attributed it to the fact that he has spent more time with her and to the lack of face to face contact with his father. It is said that the child enjoys a ‘surprisingly’ close relationship with his father, evident from a number of sources: his drawing, seeking comfort from his father, comforting his father when he thought his father had hurt himself, the observations of Dr A and Dr M and Ms F mentioned earlier, and, significantly, in the short trip he made to the United States early last year that he began to identify his father’s home as ‘our home’. If his relationship with his mother is closer, the degree of closeness and the significance of it are said to be difficult to assess and the submission is made that the child will quickly develop a ‘relaxed, enjoyable and spontaneous interaction with [the father] if the orders sought are made.’
For my part, I have no doubt if the child had the opportunity to spend more time with his father his attachment to him would strengthen and it is also likely that his relationship with M would deepen in those circumstances. But the situation is more complicated than these submissions reflect because they seem not to recognise that for the child to spend that time with his father, given the circumstances, there are significant implications for him in other areas, not the least of which is the diminished opportunity he would have to spend time with his mother and receive the comfort and satisfaction that relationship and attachment plainly delivers to him.
The submissions for the father also place some emphasis on the benefits for the child of furthering his relationship with M. It is pointed out that she is only 7 years older than the child and it is said they have a ‘healthy and strong relationship’. There is no reason to doubt it, as siblings they were raised in a common household together from when the child was born until he was three years of age, and regular communication has been maintained for the most part since. The submissions argue that the child should have
‘…the opportunity for a childhood sibling and to enjoy the childhood play and interactions with [M] which will not be possible once she passes through adolescence and into adulthood. There is only a small window of opportunity for this experience of family life.’
The point is readily acknowledged. But there is no avoiding a few observations the history inevitably throws up: M’s departure with her father for the United States in 2004 brought about a significant change to her and the child’s opportunity to be around each other as siblings; the decision to remain living out of Australia for the years since has meant they have not had the same opportunity they would have had to spend regular time together though no longer living in the same household; and on the few trips to Australia which have been of relatively short duration M has not always accompanied her father. These decisions have all been the father’s and they have to be taken alongside the obvious merit of the argument now put. There is every indication the child and M enjoy the time they do spend together, despite the differences of age and gender, and it can be accepted they would enjoy spending time together even though their interests are going to diverge inevitably as M gets older. As the reporter readily agreed, it will be harder to solidify their relationship as she becomes older and perhaps goes off to further her education and pursues her goals in a wider circle than family. It is certainly desirable for the child that he has a proper sibling relationship with his sister. The advantages for him of spending extended time with M will be borne in mind in coming to a decision.
The child has other relationships of importance. He obviously sees his sisters E and A from time to time and, like his relationship with M, they are also important relationships for him. His grandmother lives in Sydney and he has contact with her. Also in his mother’s care he has regular contact with extended family - her uncle who lives nearby in northern New South Wales and aunts, uncles and cousins whom they visit a little further away. Inevitably those relationships would reinforce his sense of identity and place within a wider family group on his mother’s side.
His father’s relatives do not live either in Australia or in the United States and there is no indication he has established any connections there. No doubt if he were to be living with his father according to his father’s proposal or spending regular time with his father over the years to come that could very well change.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
ss (4) …..the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents (a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
It is said on behalf of the father, accurately, that when the child has spent time with him, either in Australia or during the visit to the United States, the child has had liberal telephone communication with his mother and it is also said, again accurately, that there is no evidence he has obstructed the child’s relationship with his mother; hence, it is said there can be confidence he will continue to foster and encourage that relationship, further supported by the father’s offer to pay for travel for the child to spend time with his mother while he is living with his father in the United States.
Of course the father has not yet been tested in the position of being responsible for the child’s day to day care on any extended basis, but if the past is a reasonable indicator of what might occur in the future the submission is valid so far as it goes. That is to say, during the relatively brief times the child has been in his father’s care these past few years it is accepted there has never been an issue about the child communicating with his mother and that suggests his ready communications with her from his father’s household in the future are unlikely to be obstructed or problematic. But that is not inexorably beyond question because there are some other aspects of the evidence which need to be weighed in the balance in evaluating what is, as yet, an untried arrangement.
The first comes from the father’s own evidence and emerges from his perspective of the child’s reactions and needs when he was distressed during the first overnight stay at the father’s home south of Sydney and later during his stay in the United States. These were summarised earlier in paragraphs 46 (ii) and 52 above. In both instances his evidence reflected a tendency to interpret the child’s reactions so as to minimise or discount the prospect he might need the comfort or company of his mother and reluctance to acknowledge and act on that prospect. His proposal for an extended stay in the United States includes a mechanism for the child to be assessed by a psychologist within three months and to be returned to his mother in certain circumstances, which will have to be discussed in due course, but the point here is more that the father’s perceptions on these occasions leave lingering doubts, first, about his willingness or ability to take on board and consider whether the child’s reactions might be attributable to his feelings about his mother’s absence or unavailability and, secondly, about the impact of his apparent reluctance to acknowledge the prospect of a meaningful connection between the child’s reactions and his feelings towards his mother.
The second area is the subject of submissions for the motehr to the effect that the father has not encouraged or facilitated an ongoing relationship between M and the mother, raising concerns about his level of insight into the importance for a child of having their important relationships maintained – in this instance M’s relationship with the only mother figure she knew and the person who was her primary carer for 4 ½ years from a young age. It is submitted that his failure to see M’s complaints for what they were, taking her to the United States in 2004, and his apparent lack of concern about the attitude M developed towards the mother all demonstrate a poor attitude and suggest a lack of commitment to maintaining a child’s relationship with an important parental figure.
I do not necessarily adopt all of this or see all of the wider text of the submissions as valid – I might say both sets of submissions were intemperate on occasions and unnecessarily over critical in parts – but there is something to the unfortunate circumstance that M’s relationship with the mother has not been sustained beyond the separation. Obviously the years between the end of 1999 and the middle of 2004 when she was substantially cared for by the mother were not without their difficulties, exemplified by M’s diagnosis of ADHD in 2002 if nothing else. The grievance M expressed to her father, probably not without precedent in a blended family setting, seems not to have endured, however, if the email from the father to the mother before separation is any indicator; that is, reporting from the United States on M’s improvement in her grades, he suggested to the mother she send a note to M complimenting her on her achievement - ‘it will mean a lot to her’. And yet that sort of sentiment appears not to have been sustained beyond the point of separation despite the mother’s unchallenged position on it, as discussed with the reporter:
‘52. …[the mother], however, noted that she has wanted to maintain closer relationships between herself, [the child] and [M] but that [the father] has not taken up opportunities for this to occur……’
It is not a major consideration and obviously there are others involved apart from the father. But it is appropriate to observe that it was a situation in which he ought to have taken the lead in steering a course that maintained for M the sort of relationship his email reflects. Apart from the obvious benefits to M of having her relationships sustained and supported, it would have had the added advantage of facilitating the relationship between M and the child through their common relationship with the child’s mother.
The father’s case contends the mother ‘forced’ him to engage in litigation and she only agreed to arrangements when she was ‘forced’ to and his submissions link what is called her ‘demonstrated resistance’ to a relationship between himself and the child with his inability to successfully build a strong and close relationship with the child unless the child can now spend a substantial and significant time with him in the United States.
Earlier findings rejecting this submission against the mother need not be repeated here and the resulting contention that adoption of the father’s proposal is the only way he will be able to have a strong and close relationship with his son falls as a result. Contrary to this, that the mother has in fact supported and encouraged their relationship is reflected in other parts of the evidence. The very nature of the child’s relationship with his father and his positive response to his father is one indicator. While partly attributable to the father’s qualities of course, its’ progress and development to such a point in circumstances where such little time has been spent together over the past 3 ½ years and more is a testament to her not having undermined or inhibited or discouraged it, a conclusion that is bolstered by the reporter’s assessment of the mother as supportive of and promoting their relationship:
‘43. [The mother] was consistently reassuring and appropriately encouraged [the child] to enter new situations and to separate from her with confidence. There was nothing to suggest that she was inhibiting [the child’s] development. Her objections to [the father’s] parenting proposal appeared child focused and based on a realistic appraisal of [the child’s] developmental needs.
44. [The mother] also appeared to support [the child] having a good relationship with his father. Frustrations [the father] encounters in this regard could be related to [the mother] finding it difficult to communicate with [the father], being concerned that [the father] is struggling with emotional/cognitive difficulties, and a fear that he may seek to retain care of [the child]. [The child’s] attitude toward his father suggested that he has not been exposed to concerns his mother has in this regard.’
The mother’s presentation in that setting could be a charade for reporting purposes to achieve an end but there is simply no indication of that and the assessment is held to be sound. Accordingly, insofar as the father’s case attempts to establish the mother has a negative attitude about the child’s relationship with his father or that in the future she will bring a negative and resistant attitude to it rather than facilitate and encourage it, it is rejected.
The submission is also made that the mother has failed to appreciate her responsibilities as a parent by failing to consult the father about the child’s enrolment at S school, the diagnosis of ADHD and administering the medication prescribed, and that she moved to northern New South Wales for the ‘sole purpose of placing an obstacle to contact’ between the child and his father. None of this is substantiated on the evidence which has already been discussed and the argument is rejected.
On a more positive note directed to his own case, the submissions for the father argue that he has demonstrated his parental abilities and his excellent attitude towards his responsibilities. M is healthy and well adjusted and has excelled at school and it is said that the mother has not seriously questioned his ability nor offered any evidence to suggest he is anything other than a loving and caring parent which she conceded early in the case. That can be accepted. There is no intention through this judgment to suggest the father is other than a loving parent who wishes to do what he considers best for his son. There is a responsibility, however, to evaluate the evidence as a whole and to consider core submissions related to it.
One such submission for the mother propounds the proposition that the father has not adequately shouldered his parental responsibilities by reason of decisions he has made since the separation and key to that is the choice he has made to remain living in the United States rather than proximate to his son in Australia despite his ability to do so. It is argued he has elected to remain out of Australia to further his own career and pursue his own professional interests, he made no effort to return to Australia for a year after the separation, he has since returned infrequently, and he has not since given priority to his responsibilities by living closer to the child which would also allow M to be closer to him. This passage of the report is cited – ‘[The father] aged 57 years is primarily concerned if he is not embedded in [the child’s] psyche while [the child] is still young it will become increasingly difficult for him to form a strong and meaningful relationship with [the child].’ - and it is argued that the father’s answer to achieving this is not to make the concessions that would further his relationship with his son but to put in place a disruptive arrangement for the child and for the mother while continuing his own lifestyle.
Of course the father does not see it this way. The submissions in his case relate the decision to move to the United States to the pre-separation period and the common or agreed plan to have him concentrate on his work in the shorter term and have greater involvement with the children in the longer term and relate his absence from Australia for a year after separation to his poor mental and emotional state at that time. That is acknowledged, yet certain facts remain. Whatever the circumstances or plan behind the initial 2004 move made with the mother’s support, it was to be for a specific period, but the underlying circumstances changed dramatically at the point of their separation six months after his departure. The longer term plan, even if his case is accepted, then became irrelevant to the future that lay ahead from then on, more particularly to his ability to participate in and be closely involved in the child’s upbringing and to spend time regularly with him. The decision to stay on has been the father’s, there is no escaping that conclusion, and nor is there any escape from the conclusion that the decision not to return to Australia to see the child for a year following separation was his, whatever his state of mind or well being, and the same has to be said about the frequency of his visits since. In saying this, it is recognised he also has parental responsibilities for his daughter and no doubt his decisions have had to take into account his sole responsibility for her upbringing and education these past few years.
None of this is to diminish the father’s commitment to his son; it is to record the inevitable finding that he has made decisions, quite independently of the mother, that have impacted on his parental responsibilities including the extent to which he has been able to participate in decision making and spend time with his son.
(f) the capacity of: (i) each of the child’s parents…to provide for the needs of the child, including emotional and intellectual needs
As the child is a young boy with a range of interests, it is not doubted that the father as a parent is well placed to guide him and stimulate his learning. Nor is it doubted that his father is a positive role model in so many areas of influence and example. The child has the benefit of the considerable advantages of having him as his father. It is to his credit that M is progressing very well at school and obviously supported by her father in a range of interests as part of her overall development.
Of course if the child is to spend time with his father in the United States, whether or not for the extended period he proposes, the father will have to manage his work around those added responsibilities. On that front, he maintains he will have less travel in the future, his work will be more computer based, and he will have the flexibility to work at home if required; hence, he will be well positioned to supervise the child out of school hours and see to his needs. Any field trips could coincide with holidays so he can take both children with him and give them the advantage of travel to other parts of the world.
But this is called into question by the mother who suggests his history gives no cause for confidence he could or would give priority to anything over his work. In support of that, it is said that he could not make himself available for the last day of the hearing but returned to the United States and it can be inferred he was unable to organise his work so as to remain in Australia not only to conclude the hearing but also to spend the time the mother had offered with the child. And so his assertion of flexibility has to be approached with some scepticism. Also, the early history of arrangements in place after his relationship with the mother began, when he lived for much of the week near his work while she made the sacrifices to fit around what he wanted, attests to the priority he has long given his work. He is described as a ‘self-absorbed selfish person who has a narcissistic personality’ with a history of others pandering to his needs while he gives no concessions himself. A raft of examples from the past are put for that, some of which follow: his return to full time employment when M was young and providing her with a vast array of carers; his choice to stay in Sydney near to his work but also requiring the ‘idyllic lifestyle’ of his home south of Sydney, accommodated by inconvenience and difficulties for others; the mother’s reorganisation of her work schedule to suit him and the decision he made about his daughter’s schooling; his decision to take M to the United States even though it would separate her and the child; his expectation that the mother would ‘drop everything’ and go to the United States to settle M into school; and his expectation that his choice to remain living in the United States will be accommodated by disrupting the child’s life and yet he criticises the mother for having moved to northern New South Wales, supposedly making his contact with the child more difficult when he is in Australia and supposedly for the purpose of obstructing their relationship, in circumstances where he requested she leave the home south of Sydney. It is argued he repeatedly expects others to fit in with him and with his decisions and he has a history that demonstrates his ‘controlling’ and ‘selfish’ attitude.
These arguments are strongly worded, though no more so than some of the submissions made on the father’s behalf, and for my part I do not find it necessary to discuss them or even reach a conclusion about them save to say this. I do see the father as having had a long term and close engagement with and commitment to his work and career. Obviously he is of senior standing in his field and of course if he finds it satisfying then those around him for whom he has responsibility are likely to reap the benefit of that. But I have to say I can find no instance where he has resolved any tension between home and work in the direction of the former rather than the latter. The arrangement at the very outset of his relationship with the mother for the family to live south of Sydney where he decided M would be schooled while he remained in Sydney near his work illuminates the emphasis he placed on his work at least at that time. By the same token it is recognised he has managed M’s day to day arrangements around his work, though of course she is older and therefore more independent than the child and she has a completely different care history where she is more accustomed to carers who are not a parent.
Ultimately, his evidence about slowing down and scaling back and introducing flexibility, taken in conjunction with arrangements at work to accommodate apparently satisfactorily his responsibilities for M, deserve to be given their due weight. Nonetheless, there does remain a degree of scepticism about whether his arrangements can be satisfactorily adapted to accommodate his responsibilities for the child given his history and the obvious points of difference between the child and M. There can be no certainty about it, not unnaturally, but the evidence has not dispelled the nagging doubt that domestic/work arrangements may not go according to his plan.
Dealing with another submission, it is said that his mental state is a concern having regard to his own evidence of having been a ‘basket case’ in 2005 and 2006 and yet nothing of that was disclosed by him in his affidavits. The point having been made, however, I do not see it as amounting to anything here. The father had difficulties, he sought treatment and was prescribed medication for depression, and he sought professional assistance with difficulties he was experiencing in cognitive functioning. Appropriately addressed and treated, nothing arises.
Turning more directly to the mother, no concerns arise about her ability to see that the child’s needs are met so far as they relate to his housing and schooling as well as his social development and education. She has geared her work commitments towards his needs and is available to supervise his arrangements outside school hours. She has appropriately sought and obtained assistance for him with his behaviour problems and worked with the school in seeing that his special needs are addressed and supported. She also demonstrates, it has to be said, a greater degree of sensitivity than does his father into the child’s emotional needs. This is apparent not only from her perceptions and attitude towards the child’s reactions at times of distress but also in her more child-focussed appreciation of the implications for the child of implementing his father’s key proposal.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Obviously the distance between the parents’ residences creates practical difficulties and expense for the child spending time with each parent regularly. The father’s proposal for the child live with him in the United States for an extended period or such other time as the court determines would resolve the practical difficulties of spending time with his father but there would remain practical difficulties in the child spending time regularly with his mother. His proposal for two visits by the mother during the extended stay is designed to meet that. Ultimately, the practical issues of travel and expense can be met but they are not at the heart of the decision necessary.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The submission is made for the father that making an order such as he now seeks providing for the child to spend one discrete but significant and substantial period with him and M in the United States is least likely to lead to the institution of further proceedings. There is no elaboration.
The submissions for the mother on this consideration are to the effect that the very terms of the orders he seeks foreshadow problems; that is, there would be a reassessment of the child after several months and the father would act according to the recommendation of the assessing psychologist. Yet the reporter says he lacks empathy and therefore it is unlikely he would have any insight into any problems the child may have and in any event it is likely that any determination by the psychologist inconsistent with the father’s ‘preconceived notion’ of what is in his own best interests would be rejected by him and that would probably result in further litigation to vary the orders. I shall return to this later.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person ……with whom he or she has been living
This consideration is one of the important planks to the case and various submissions to this effect were put on the father’s behalf about it:
· There will be no long term adverse effect on the child by orders being made as he seeks; the benefits of the orders are ‘manifest’ insofar as the child is concerned.
· The child does not display any significant distress or anxiety when he is with his father, as supported by the evidence of witnesses.
· The mother’s contention that the child becomes anxious and distressed when separated from her for any extended period and her contention the move proposed by his father would be disruptive and distressing for the child are without support.
· The mother is unnecessarily anxious when the child is separated from her, apparent from her diary notes, and that colours her claim that the child could not cope.
· The child will quickly overcome any initial separation anxiety and distress once he settles into the environment.
· The child settled well into his father’s house in the United States in January last year, the visit being an ‘evident success’, and to the extent there is any anxiety or distress for him it would not be greater in degree or intensity whether he spends a significant and substantial time or a shorter three week holiday with his father as he did at that time.
· All of the face to face contact has been successful despite the mother’s assertion to the effect that the child remains ‘emotionally incapable’ of spending significant time with his father, and there is little evidence of separation anxiety when the child is with his father and to the extent there is he adjusts to it and is not adversely effected.
· Ms B could not point to any real evidence to support her view that it would be disruptive to the child to spend a significant period of time in the United States and she conceded it would be ‘impossible to predict’ how he would respond.
· The child is capable of making the adjustment if he is in constant and regular contact with his mother by telephone and other means and there are scheduled visits with his mother in that time.
· For the child to have a meaningful relationship with his father and his sister M it is necessary that he spend significant and substantial time at his father’s home in the United States, to be integrated into his household and to attend school there; it would give him the advantage of furthering his important relationship with M before she is older and develops other interests and focus in her life; there is only a small window of opportunity left for that to occur; his father now being 57 years of age makes it an optimal period to spend some time in his care while his health enables him to care for the child; and the child’s interest in an array of pursuits appropriate to his age and gender can be met by his father’s response to his curiosity and interests.
· The benefits of the father’s proposal outweigh the ‘speculative concerns’ expressed by Ms B.
· There is no evidence of any long term adverse effects, nor any significant risk of harm to the child if the father’s proposal were put in place.
Some of these arguments stand in contrast to the evidence of Ms B. She acknowledges the father’s desire to be more involved and closer to the child and that he does not want to be the parent of ‘lesser importance’ in his son’s life. She says he is correct in noting that his young years are important for establishing secure parent/child relationships. She assesses the father who obviously loves the child as having much to offer him, but if the child’s needs were given priority his relationship with his father would be better nurtured in a setting where the child does not have to make such significant change and experience loss. She assesses the child as lacking resilience and struggling with developmental challenges. While happy interacting with his parents when confronted with new situations, he consistently looked to his mother for reassurance and there were signs of anxiety and regression in his behaviour when significant separation from her was imminent. Having started school and made friends, he would probably not find it easy to cope with the enormous changes that relocation to the United States would involve, particularly since the parent whom he looks to for security would not be there. He is likely to experience significant anxiety, regressive behaviour and grief and loss to a level that would interfere with his social and emotional development.
Obviously the father does not accept these assessments. As the submissions for the mother point out, in his affidavit the father referred to the mother’s view that the child is not ‘emotionally ready’ for an extended visit to which he added that there ‘has been no professional confirmation of her position and my experiences with [the child] have consistently been very positive and rewarding. [The child] has bonded well with me and he would fare no worse with me than with [the mother]”. Yet there had been a professional assessment by that time; Ms B had completed her report. Her assessment, contrary to the father’s views, is neither implausible nor improbable, she is well able to make the assessment she has and it is accepted as a sound opinion.
Having the support of the reporter on this important topic, the mother puts other arguments in her case against the father’s proposal: the child is settled in his current environment; he is attending school where he is progressing well with the support and resources of the staff directed to his special needs arising from issues related to his behaviour; he is under the supervision of a paediatrician to address his behavioural difficulties; she has organised her work around her responsibilities for the child and is able to be available to him as needed; he has friends and activities and he has a network of relatives with whom he has regular contact. His relationship with his father, while ever his father continues to live in the United States, will be supported by frequent and regular communications and there would be visits during times he is present in Australia and also the opportunity to spend time with his father in the United States during school holidays.
Parental responsibility
The presumption of equal shared parental responsibility is not displaced by any of the evidence nor rebutted by any consideration. Shared parental responsibility is appropriate to the circumstances of this child.
Time
The father’s case is expressly not put on an ‘equal time’ basis which is not reasonably practicable in any event and therefore it is not necessary to develop this option. His case is specifically put for ‘substantial and significant time’ and that means consideration needs to be given to whether his proposal is in the child’s best interests and reasonably practicable.
Best interests
Having regard to all that has been said, it is my assessment that the child’s best interests overall would be better served by adopting his mother’s proposal. Many of the arguments put by the father are sound and the importance for the child of maintaining a good relationship with his father is recognised. While the father’s position is certainly understandable and there can be no doubt he sees his proposals as the solution to sustaining and improving their relationship, it is not so for his son.
The proposal itself is not only uncertain in its execution but also has inherent risks for the child and the seeds of further dispute. Germane to the proposal is the assessment of the child by ‘an appropriately qualified child psychologist’ within three months. Yet no one is yet identified as fitting that description and one can envisage disagreement about a range of related factors: what expertise or experience should such an assessor have; what would be the scope of the process undertaken; and what would be evaluated. Presumably the last is answered by the form of the order the father proposes; namely, after three months the expert would arrive at an opinion whether ‘the child is in distress or failing to adapt to the environment or that it is otherwise not in the best interests of the child, all matters considered, for the child to remain with the father’ This implies the opinion of the appointed psychologist would be accepted and acted upon, and yet the father has not demonstrated to this point a ready willingness to accept professional opinion which does not accord with his own view of it. Hence, the potential for further argument looms.
Nothing has been said by either counsel of the appropriateness of this Court making an order that had the effect of delegating to another its responsibility to determine whether or not a particular arrangement is in the best interests of a child and binding the parties to it. My own view is it would not be appropriate but that can be put aside. The more telling points are that no expert should be necessary in the circumstances to tell a parent that a child is in distress or failing to adapt to a significant change in environment and a period of three months before that assessment is made is a very long time for a child not to have settled to the change if in fact that is the case.
Apart from these difficulties in the form of order – which perhaps could be alleviated by re-drafting and more precision being brought to bear on what is sought to be achieved – there are other more profound difficulties which tip the best interests scales in the mother’s direction. The child is settled in the environment she provides; he does have special needs and they are being appropriately addressed by her and through the efforts of others she has marshalled; his ability to cope with an extended separation from his mother [even for a period shorter than proposed but extended nonetheless] is plainly questionable; the more reliable and sound assessment is that he is unlikely to cope with any extended separation; and he has a particular care history from birth which makes it entirely understandable that he is more closely attached to his mother. The father has not been called on to care for the child for any period beyond the visit to the United States last year; the proposal he urges does not mirror that arrangement but represents a significant difference which he does not appear to sufficiently appreciate; nor does he appear to sufficiently appreciate the implications for a young child such as this child of a close attachment to a parent; and he has not established that he has the insight or willingness to be sufficiently open to considering and recognising if the child is being adversely effected by his need for his mother in any extended separation from her.
This decision means the child will be separated for significant periods from his father and from M, but that is a consequence of the living circumstances of his father and the remedy to that lies not in uprooting the child, who plainly needs a stable and consistent environment and routine, from a sound and well established setting with his mother, thus putting his well-being at risk.
The submission is made for the father that if the Court is ‘uncomfortable’ with the time he proposes then consideration be given to a shorter but nonetheless significant period of time for the child to live with him and M in the United States. That has been considered, but the same issues arise.
Form of orders
The orders that will issue are set out at the outset of this judgment. They are not extensive and certainly do not cover every contingency of the child’s arrangements as between his parents into the future. But a minute level of detail should not be necessary; a degree of flexibility is more likely to be required given their circumstances. To the extent the parents wish to be bound by more detailed arrangements they are always at liberty to agree about them and abide by that agreement.
The orders are drafted on the premise that the father will continue to live in the United States – there has been no indication to the contrary and he purchased a home there recently – and also on the premise that he would come to Australia on one occasion each year. As will be apparent, they envisage a two week visit in the middle of the year and a longer visit during the Christmas school holiday period. Three weeks has been provided for the 08/09 year but this is extended to four weeks the following year of 09/10 when the child will be that much older. The orders provide for one of the visits each year to be taken in the United States, though of course it is always open for the parents to agree that both periods will be spent there or that both will be spent in Australia.
Since both parents agree the child needs a parent or close family member to travel with him, that has to be arranged in advance and so provision is made for the father to make an election and give notice of it to the mother. If she is the accompanying adult, she will have to adapt her own plans for holiday periods around the child’s schedule. Whether she stays in the United States and is accommodated there for the duration or whether she makes two trips to fulfil that responsibility cannot be determined here for obvious reasons - that is something the parents will need to discuss and determine but it is appropriate to allow the father to make the last decision on it since he will be paying the costs involved.
It will be noted that the orders also provide for where the child’s care is to be exchanged and the arrangements reflected there are those considered appropriate though of course there is always flexibility for agreement about some other venue.
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SCHEDULE OF ORDERS SOUGHT
Orders sought by [the mother] [per annexure to her affidavit sworn 14 Sep 2007)
1.That the child […], born […] April 2001, ("the child") live with the MOTHER.
2.That the MOTHER and the FATHER have sole responsibility for making decisions about the day to day care, welfare, development, schooling and management of the child's diagnosed ADHD/Aspergers Syndrome condition while in the care of the respective parent.
3.That the MOTHER and the FATHER have joint responsibility and shall consult in relation to making decisions about the long term care, welfare and development of the child.
4. That the FATHER may exercise communication and spend time with the child as follows:
a.For one half of the New South Wales gazetted school holiday period or up to two weeks in the New South Wales June/July school holiday period each year as agreed between the parties or failing agreement from 10:00am on the first Saturday of such school holiday period to l2:00pm on the third Saturday of such school holiday period.
b.For a three week block period of time in the gazetted NSW Christmas school holidays by agreement between the parties or failing agreement for a period of three weeks commencing on 2 January in each year of such Christmas school holiday period.
c.Liberal and spontaneous telephone, internet web-cam and email communication at other times.
d. Any other time as agreed between the MOTHER and the FATHER on the FATHER providing at least fourteen (14) days notice in writing to the MOTHER.
e. That the MOTHER communicate with the child in accordance with the provisions of clause 4(c) above whilst the child is in the care of the FATHER.
5. The FATHER shall confirm his request to spend time with the child in writing to the MOTHER and the MOTHER shall confirm acceptance or otherwise by return within each preceding month in which such time is to be effected pursuant to clauses 4(a), 4(b), and 4(d) above.
6. While the FATHER lives [south of Sydney] in the State of New South Wales and the MOTHER continues to live in [the north of the] State of New South Wales, time spent with the FATHER shall be implemented by the MOTHER delivering and the FATHER collecting the child from the McDonald's family restaurant, [northern New South Wales] at the commencement of the period, and, the FATHER delivering and the MOTHER collecting the child from the McDonalds family restaurant in [southern Sydney] or the central park in [south of Sydney] or other location as agreed between the MOTHER and the FATHER at the conclusion of the period.
7.In the event that the FATHER resides in a different country to the MOTHER, the FATHER shall pay for the costs of all return airfares and related travelling arrangements for the child to effect spending time with the child. The airfares may be economy return flights and by the most direct route between the location in which the child lives with the MOTHER and the location in which the FATHER resides. The FATHER and the MOTHER shall ensure that the child does not travel without the FATHER or the MOTHER or other adult member of the child's immediate family or other adult agreed between the parties until after the child attains the age of 14 years and the FATHER shall bear the cost of any accompanying member of the family or other accompanying adult unless otherwise agreed.
8. The FATHER shall confirm his request to spend time with the child in writing to the MOTHER and the MOTHER shall confirm acceptance or otherwise by return within each preceding month in which such time is to be effected and such arrangements will be confirmed between the parties not less than 14 days before commencement of the period.
9.That the MOTHER authorise the Principal of any school the child may attend from time to time to provide any oral or written information that the FATHER may request at any time in relation to the child's academic progress .
10. That the MOTHER authorise any medical practitioner, psychologist, counsellor or other health professional treating the child to provide any oral or written information that the FATHER may request from time to time in relation to the child's health.
11. That the MOTHER sign and date an authority provided to her by the FATHER for the purposes referred to in paragraphs 10 and 11 above.
12. The MOTHER and the FATHER shall each advise the other of any changes in address, telephone, email or other contact details to give effect to these orders immediately upon any change.
13. That the MOTHER and the FATHER shall be restrained from passing information or messages through the child to each other.
14.The MOTHER and the FATHER shall not make any disparaging remarks in the presence of the child in relation to each other or in relation to a relative of the other.
15.Either party, at their own expense, may make an application to file a copy of these orders within the jurisdiction of any country. In the event that there is any dispute that cannot be resolved between the MOTHER and the FATHER about the interpretation, implementation or application of these Orders they will do all things necessary to participate in Family Dispute Resolution with a person authorised under section 10G of the Family Law Act.
Orders sought by [the father] per closing written submissions
1) That the child […] born […] April 2001 (“the child”) lives with the father for a period of:
(a) 12 calendar months or
(b) In the alternative, such other period as the Court sees fit.
(c) The period referred to in orders 1(a) or 1(b) above shall commence on:
(i) January 2008; or
(ii) in the alternative, August 2008; or
(iii) in the alternative, such other date as the Court sees fit.
(d)The father will do all acts and things necessary to arrange for the child to be assessed by an appropriately qualified child psychologist within 3 calendar months of the date referred to in order 1(c) above and if it is the opinion of that expert that the child is in distress or failing to adapt to the environment in [the United States of America] or that it is otherwise not in the best interests of the child, all matters considered, for the child to remain with the father in [the United States of America] then orders 1(a) & (b) shall be discharged and the father shall immediately do all acts and things necessary to arrange for the child to be returned to the Mother.
2) That the child lives with the mother at all other times.
3) That whilst the child is living with the mother pursuant to order 2, the child shall communicate with or spend time with the father and with [M] as may be agreed by the parties but not less than:
(a)telephone or web-cam communications between 8:00am-9:00am Sydney time to be initiated by the father at least 2 times per week;
(b)spontaneous internet web-cam, email, text messaging, instant messaging and telephone communications at all other times;
(c)two entire school holidays (being the period between the child’s last day of classes in any academic term and the first day of classes in the next academic term) in each calendar year as agreed between the parties or in default the June/July holiday period and another holiday period of the father’s choosing from 10:00 am on the first day following the child’s last day of classes to 12:00 noon on the last day immediately preceding the child’s first day of classes in the next academic term.
(d)At any other time for weekends (being from 6:00 pm Friday to 6:00 pm Sunday) whenever the father visits provided the father gives to the mother two week’s prior notice.
(e)The child may spend time with the father pursuant to order 3(c) outside the Commonwealth of Australia.
4) That whilst the child is living with the father pursuant to order 1, the child shall communicate with or spend time with the mother as may be agreed by the parties but not less than:
(a)daily telephone or web-cam communications between 6:00pm-7:00pm [United States] time to be initiated by the mother;
(b)spontaneous internet web-cam, email, text messaging, instant messaging and telephone communications at all other times;
(c)two entire school holidays (being the period between the child’s last day of classes in any academic term and the first day of classes in the next academic term) in each calendar year as agreed between the parties or in default the northern hemisphere summer holidays in July/August period and another holiday period of the mother’s choosing from 10:00 am on the first day following the child’s last day of classes to 12:00 noon on the last day immediately preceding the child’s first day of classes in the next academic term.
(d)At any other time for weekends (being from 6:00 pm Friday to 6:00 pm Sunday) whenever the mother visits the USA provided the mother gives to the father two week’s prior notice.
5) That the travel expenses of implementing contact pursuant to orders 1(c), 1(d), 3(c) and 4(c) shall be the sole responsibility of the father.
6) The travel arrangements are to be made by the father in respect of orders 1(c), 1(d), 3(c) and 4(c).
7) Whenever the child travels for the purposes of these orders particularly between Australia and the United States of America, he must be accompanied by an adult.
8) Where the handover of the child is to take place within the Commonwealth of Australia then it shall take place at McDonalds Restaurant in [northern new South Wales] at the commencement and conclusion of contact.
9) Where the handover of the child is to take place within the United States of America then it shall take place at the Departure Lounge, Terminal 3, […] Airport at both the commencement and conclusion of contact.
10) That the father and mother have equal shared responsibility in respect of the child and the parties shall consult with each other in respect of decisions to be made in the exercise of that responsibility (particularly in respect of but not limited to education, health and religious instruction issues pertaining to the child).
11) That the father and mother each keep the other informed in writing of details relating to the child’s care, welfare and development whilst in the care of that parent including but not limited to medical treatment, educational issues and matters, changes of address and contact details.
12) Subject to Order 13 below, that the father do all acts and things necessary to fully implement any treatment prescribed by Dr [P] in relation to the child;
13) That the father do all acts and things necessary to arrange for the child to be placed under the care of a paediatrician in the USA (whilst the child is in the USA) and do all acts and things necessary to fully implement the treatment prescribed by such paediatrician in relation to the child;
14) That the father do all acts and things necessary to arrange for the child to be placed into the Special Education Program at any school which the child is attending (whilst in the USA) which caters for ADHD and/or Aspergers and/or Autism Spectrum Disorder and/or any program for gifted children.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore.
Associate:
Date: 4 April 2008
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