RICHARDS & WHIPP

FAMILY COURT OF AUSTRALIA

RICHARDS & WHIPP

[2011] FamCA 141

FAMILY LAW - CHILDREN - where the parties have been engaged in extensive litigation in three countries about a child who is not yet 4 years of age - where the mother was given sole responsibility for making long term decisions about the child on certain conditions - where the child’s surname is to be changed - where the mother is restrained from travelling internationally with the child but the father is permitted to do so - provisions in respect of passports - provision in respect of security to be provided by the father - long term orders for the child to spend face to face time with the father both in Australia and the United States - provision for the use of skype communications - consideration as to how the child will share Jewish holidays between her parents

Family Law Act 1975 (Cth) Part VII s 60CA; s 60CC; s 61DA; s 65DAA

AMS v AIF (1999) 199 CLR 160
Taylor v Barker (2007) FLC 93-345
McCall & Clark (2009) FLC 93-405
Hepburn & Nobel (2010) FLC 93-438
Barker & Ferris [2008] FamCA 1112
Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Richards

RESPONDENT:

Ms Whipp

FILE NUMBER:

SYC

4363

2007

DATE DELIVERED:

28 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

13 - 21 December 2010; 16 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Karras Partners

COUNSEL FOR THE RESPONDENT:

Mr Rosic

SOLICITOR FOR THE RESPONDENT:

Diana Perla & Associates

Orders

All previous orders made in the Family Court of Australia be discharged.
Unless otherwise specified by these orders, the mother have sole parental responsibility for making decisions about a major long-term issue (as defined by Family Law Act 1975 (as amended)) relating to L (“the child”) born … March 2007.
The mother must do all acts and things and sign all documents necessary to change the child’s name to L Whipp-Richards.
When making a decision about a long-term issue relating to the child:
4.1.The mother shall notify the father in writing of the decision she is proposing to take.
4.2.The father may provide the mother in writing within 14 days of receiving the notification pursuant to Order 4.1, his opinion about the proposed decision.
4.3.The mother shall not make the decision until 20 days after the written notice referred to in Order 4.1.
4.4.The mother shall notify the father in writing of the decision she has taken as soon as practicable after she has taken that decision.
The mother provide to the father the names, addresses and telephone numbers of all medical professionals who may treat the child from time to time and authorise each of the medical professionals in writing to provide copies of any test results, letters of referrals, reports and any letters received from other medical professionals to the father and authorise them to discuss any aspect of the child’s health with the father.
Except in the case of an emergency, the father not take the child to any medical practitioner not approved by the mother. The mother is to decide upon a medical practitioner to whom the child can be taken when she is with the father in the United States in the manner referred to in Order 4.
The mother do all acts and things and sign all documents necessary to instruct and authorise the administrators of such day care, childcare, pre-school and/or school as the child may attend from time to time to forward to the father copies of all the child’s school reports, newsletters and all notices relating to school events, functions, parent/teacher meetings, parent-helper opportunities and the like immediately upon the child’s enrolment.
The father has sole parental responsibility for making decisions about the day to day care of the child when she lives with him.
The mother has sole parental responsibility for making decisions about the day to day care of the child when she lives with her.
The mother be restrained from removing the child and/or causing the removal of the child from the Commonwealth of Australia without the prior written consent of the father or an Order of the Court. In the event the father provides his written consent, he shall do all things and sign all necessary documents to affect the temporary removal of the child’s name from the airport watch list to the extent necessary to facilitate the child’s overseas travel with the mother.
The Australian Federal Police are requested to maintain the name of the child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and retain the child’s name on the Airport Watch List unless the permanent or temporary removal of the child’s name is allowed by an Order of the Court (including the current Order) or the written consent of both parties to remove the child’s name and for that purpose the child’s name is to be removed at any time when she is permitted by these orders to travel outside Australia to be with her father.
Both parties do all things and sign all documents necessary to ensure the child’s listing on the Airport Watch List allows her to move to and from Australia at times provided for by these orders and at no other times. The father is to pay any costs to any authority associated with the maintenance and/or temporary lifting of the child’s name from the Airport Watch List.
The mother’s lawyer and/or the mother forthwith deliver all original passport(s) for the child to the Exhibits Office of the Sydney Registry of the Family Court of Australia where such passports are to be held by the Court and released to the father and/or his nominee for the purpose of facilitating the child’s overseas travel pursuant to these orders.
Both parties do all things and sign all necessary documents to keep the child’s passport current at all times.
The child will live with the mother at all other times, other than the times she will be with the father as specified in these orders.
The child live with the father as follows:
16.1.From 24 May 2011 to 22 June 2011, in Sydney, Australia:
16.1.1.From 4.00pm Tuesday 24 May 2011 to 7.00pm Tuesday 24 May 2011 (the first half hour to be facilitated by a person, nominated by the mother, with whom the child is familiar);
16.1.2.From 9.00am Wednesday 25 May 2011 to 2.00pm Wednesday 25 May 2011;
16.1.3.From 9.00am Friday 27 May 2011 to 4.00pm Friday 27 May 2011;
16.1.4.From 9.00am Sunday 30 May 2011 to 6.00pm on Sunday 30 May 2011;
16.1.5.From 9.00am Tuesday 31 May 2011 to 4.00pm Wednesday 1 June 2011;
16.1.6.From 9.00am Friday 3 June 2011 to 4.00pm Friday 3 June 2011;
16.1.7.From 9.00am Sunday 5 June 2011 to 6.00pm Monday 6 June 2011;
16.1.8.From 9.00am Wednesday 8 June 2011 to 6.00pm Wednesday 8 June 2011;
16.1.9.From 9.00am Thursday 9 June 2011 to 4.00pm Friday 10 June 2011;
16.1.10.From 9.00am Sunday 12 June 2011 to 6.00pm Tuesday 14 June 2011;
16.1.11.From 9.00am Thursday 16 June 2011 to 6.00pm Thursday 16 June 2011;
16.1.12.From 9.00am Friday 17 June 2011 to 10.00pm Sunday 19 June 2011;
16.1.13.From 9.00am Monday 20 June 2011 to 6.00pm Monday 20 June 2011;
16.1.14.From 3.00pm Tuesday 21 June 2011 to 3.00pm Wednesday 22 June 2011.
16.2.From 30 August 2011 to 26 September 2011:
16.2.1.From 4.00pm Tuesday 30 August 2011 to 7.00pm Tuesday 30 August 2011 in Sydney, Australia (the first half hour to be facilitated by a person, nominated by the mother, with whom the child is familiar);
16.2.2.From 9.00am Wednesday 31 August 2011 to 2.00pm Wednesday 31 August 2011;
16.2.3.From 9.00am Friday 2 September 2011 to 4.00pm Friday 2 September 2011;
16.2.4.From 9.00am Sunday 4 September 2011 to 6.00pm on Sunday 4 September 2011;
16.2.5.From 9.00am Tuesday 6 September 2011 to 4.00pm Wednesday 7 September 2011;
16.2.6.From 9.00am Friday 9 September 2011 to 4.00pm Friday 9 September June 2011;
16.2.7.From 9.00am Sunday 11 September 2011 to 6.00pm Monday 12 September 2011;
16.2.8.From 9.00am Wednesday 14 September 2011 to 6.00pm Wednesday 14 September 2011;
16.2.9.From 9.00am Thursday 15 September 2011 to 4.00pm Friday 16 September 2011;
16.2.10.From 9.00am Sunday 18 September 2011 to 6.00pm Tuesday 20 September 2011;
16.2.11.From 9.00am Thursday 22 September 2011 to 6.00pm Thursday 22 September 2011;
16.2.12.From 9.00am Friday 23 September 2011 to 6.00pm Sunday 25 September 2011.
16.3.From 13 December 2011 to 10 January 2012:
16.3.1.From 4.00pm Tuesday 13 December 2011 to 7.00pm Tuesday 13 December 2011 in Sydney, Australia;
16.3.2.From 9.00am Wednesday 14 December 2011 to 6.00pm Wednesday 14 December 2011;
16.3.3.From 9.00am Friday 16 December 2011 to 4.00pm Friday 16 December 2011;
16.3.4.From 9.00am Sunday 18 December 2011 to 6.00pm on Sunday 18 December 2011;
16.3.5.From 9.00am Tuesday 20 December 2011 to 4.00pm Wednesday 21 December 2011;
16.3.6.From 9.00am Friday 23 December 2011 to 4.00pm Friday 23 December 2011;
16.3.7.From 12.00 noon Sunday 25 December 2011 to 6.00pm Monday 26 December 2011;
16.3.8.From 9.00am Wednesday 28 December 2011 to 6.00pm Wednesday 28 December 2011;
16.3.9.From 9.00am Thursday 29 December 2011 to 4.00pm Friday 30 December 2011;
16.3.10.From 9.00am Sunday 1 January 2012 to 6.00pm Tuesday 3 January 2012;
16.3.11.From 9.00am Thursday 5 January 2012 to 6.00pm Thursday 5 January 2012;
16.3.12.From 9.00am Friday 6 January 2012 to 11.00am Tuesday 10 January 2012.
16.4.From 1 February 2012 to 31 January 2013 for a total period up to 4 weeks in no more than 10 day block periods (up to 10 days (including travel time) of that time being in the United States of America) with the father to specify the schedule of time the child will live with him in writing 8 weeks prior to each visit.
16.5.From 1 February 2013:
16.5.1.For periods up to two weeks during the duration of each school holiday at the end of the first and third school terms and for up to two weeks from the conclusion of those holidays, in Australia with any such periods being broken by the child being with the mother for at least 2 nights;
16.5.2.For up to 12 days (including travel time) of each of the holidays at the end of the second term (the second term school holidays) and the fourth school term, (the December/January school holidays) in the United States of America.
16.6.From 1 February 2014:
16.6.1.For the duration of each school holiday at the end of the first and third school terms, and for up to two weeks from the conclusion of those holidays, in Australia;
16.6.2.For up to two weeks (including travel time) of the second term and three weeks of the December/January school holidays, in the United States of America.
16.7.From 1 February 2015 and thereafter:
16.7.1.For the second half of each school holiday at the end of the first and third school terms and for up to two weeks from the conclusion of those holidays, in Australia;
16.7.2.For up to two weeks (including travel time) of the second term and four weeks of the December/January school holidays at the end of the fourth school term, in the United States of America.
16.8.For the purposes of these orders, a “holiday” commences from 9.00 am on the day after the child ceases to attend her school and finishes at 4.00 pm on the day before she is due to go back to school.
16.9.At any other time in Sydney, Australia:
16.9.1.Each alternate weekend from after school Friday until the commencement of school on Monday; and
16.9.2.Each Tuesday from after school until the commencement of school on Thursday; and
16.10.At other times as agreed between the parties in writing from time to time.
The child’s time with the father pursuant to Orders 16.4 to 16.9 is subject to his ability to exercise it and, for the purpose of facilitating the time that the child will live with the father pursuant to Orders 16.4 to 16.9, the father must give the mother at least 8 weeks advance written notice of his arrival and departure dates.
The father shall notify the mother of his address and contact telephone numbers for the location where the child will be staying during each care period not later than 7 days prior to the commencement of any such care period and if his accommodation changes during a care period, within 12 hours of such change.
For the purpose of facilitating changeover, the father will collect the child from the mother’s residence in Sydney, Australia at the commencement of the time the child lives with him and the mother and/or a person authorised by the mother will collect the child from the father’s residence in Sydney, Australia at the conclusion of the time the child is living with the father.
So far as is reasonably practical the father shall not leave the child in the care of other individuals during any of the overnight times of the parenting time that he has with the child, and if that becomes necessary only with a responsible adult with whom the child is familiar.
In the event the child is with the father in Sydney, the child shall be with the mother on Mother’s Day from 10.00am to 3.00pm and the mother’s birthday each year, from 10.00am to 3.00pm (or 3.00pm to 6.00pm if during school term.)
In the event the child is with the father in Sydney on the child’s birthday or in the event that the child is with the father in the United States and the mother is also there, the child shall spend a minimum of three hours with the mother on that day, and failing agreement from 3pm to 6pm.
Each party notify the other, not more than 24 hours after any change in their residential address and/or landline and/or mobile telephone numbers and/or their respective email addresses.
Each party notify the other of the address and contact telephone numbers for the location where the child will be staying during any holidays spent away from her residence in Sydney, Australia, not later than 7 days prior to the commencement of any such holiday period.
The mother ensure that the child be in Sydney, Australia during the commencement of any time or period when the child is to live with the father.
The mother from time to time provide the father in writing details of the child’s routine and any significant change in her routine. So far as is possible and subject to the following order, the father maintain the child’s general routine.
The mother provide a list to the father of any of the child’s regularly scheduled events while the child spends time with him including religious observances, team sports, music, maths instructions and extra curricular activities and the father, at his option, take the child to all, some or none of those events.
The mother be restrained from taking the same flight as the father to and/or from the United States of America on those occasions when the child will be travelling to and/or from the United States of America pursuant to these Orders.
The father accompany the child on all flights to and/or from the United States of America. The father be at liberty, once the child has reached the age at which the child may travel as an unaccompanied minor upon the airline carrier chosen by the father, to make an application that she does so.
When the child is to live with the father in the United States, the father be restrained from taking the child to any other country without the express written consent of the mother and the father will, no later than 7 days before the child leaving Australia, provide to the mother a copy of the airline ticket, itinerary, and address and contact details of where the child will be staying.
The father add the child to his United States health insurance coverage as a dependant and ensure that her coverage is pre-paid during the period the child is in the United States and provide to the mother at least 7 days prior to the child’s travel a copy of the policy covering the child.
The father provide a security in the amount of AUS$50,000, such sum to be held in a solicitor’s trust account with the father’s Australian lawyer 14 days prior to the child leaving Australia, refundable to the father upon her return. The mother is to be given written notification by the father’s lawyer that the security is in place pursuant to this Order at least 7 days prior to the child leaving Australia. In the event that the father fails to return the child to Australia pursuant to these Orders, or should the father indicate that the father does not propose to return the child to Australia pursuant to these Orders, then the mother have leave to forthwith apply to the Court for a payment from the solicitor’s trust account of the whole or part of the security to cover all necessary airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the mother to have the child returned to Australia pursuant to these Orders.
The father pay the return airfares to and from the United States of America for the child and the mother give a credit to the father of one half of the airfares paid, for the purpose of the father using that credit as an offset against any liability to pay child support that he otherwise might have.
The mother facilitate the child’s communications with the father via Skype webcam at 8.30am Sydney time each Monday and Thursday for a period of at least 5 minutes when the father is not present in Australia. In the event the mother notifies the father in writing that this time interferes with any day care or schooling arrangements the father may nominate to the mother in writing another time on each Monday and Thursday at which time the child will communicate with the father in accordance with this order.
The mother forthwith do all acts and things necessary to add the father to the child’s contact list for the purpose of facilitating Skype communications and to ensure that such addition to the child’s contact list is visible and accessible to the father.
The father facilitate the child’s communications with the mother via Skype webcam at 8.30am Sydney time each Monday and Thursday for a period of at least 5 minutes when the child is living with the father in the United States of America.
The father is to be responsible to continue paying for the Skype account and for any computer equipment that is required in the future.
Each party notify the other, as soon as practicable, and in any event within 24 hours, of any serious injury or illness suffered by the child and requiring hospitalisation while in the care of the other party and in such circumstances the father be at liberty to travel to Australia to see the child without notice to the mother.
The mother be restrained from:
39.1.Denigrating or criticising the father and/or members of his extended family to and/or in the presence of and/or within the hearing of the child;
39.2.Discussing any aspect of these proceedings and/or any associated proceedings to and/or in the presence of and/or within the hearing of the child;
39.3.Showing any documents related to these proceedings and/or any associated proceedings directly or indirectly to the child including through any third party.
The mother will keep the father informed via email of the child’s daily routine at least 7 days prior to any visit and provide the father with the child’s school uniform and associated items in the event the child lives with the father during school term.
The father be at liberty to attend day care, childcare, pre-school and/or school events and activities including but not limited to parent/teacher meetings, school concerts and sporting events in which parents are able to attend or participate in.
Each party forthwith do all acts and things and sign all documents to register the child’s birth with the US Consulate in Sydney in order that the child becomes an American citizen and, thereafter, the mother and the father do all acts and things and sign all documents to request the issue of a US passport for the child which is to be forwarded to the lawyers for the father upon its issue and thereafter as soon as practicable lodged with the Registrar of the Family Court of Australia in Sydney.

The father be restrained from recording audio or video during any changeover unless an event occurs which causes the father to reasonably believe that it is in the child’s best interests to do so.
The father be restrained from recording audio or video during or any time with the child if the purpose and intention of such recording is for legal proceedings unless an event occurs which causes the father to reasonably believe that it is in the child’s best interests to do so.
The father be at liberty to make further application to the Court in the event that he asserts that the mother has or intends to move to a location in Australia which makes it significantly more difficult for the child to spend time with him.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4363 of 2007

Mr Richards

Applicant

And

Ms Whipp

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This hearing is primarily about what final orders should be made in relation to the time that L (“the child”) will spend with her father. It is also about how freely the child can move with both her parents outside Australia. The father’s case is that the mother is a significant flight risk. There is also an issue about whether there should be a change in the name by which the child is known. The child was born in March 2007 and is three years of age. Her parents were in a relationship for less than six months. The father lives in the USA and the mother lives in Sydney. In the foreseeable future the father’s relationship with the child is destined to be a predominantly long-distance one.
The child’s entire life has been the subject of intense litigation initiated by both parents. Cases have been brought in the United States of America, Israel and Australia. The subject of such litigation has included jurisdiction, paternity, birth certificate registration, parenting orders and compliance, child support, international travel, and international child abduction proceedings. Even though the parents now raise questions about the future funding of the child’s education, child support and international travel, the parents have spent in excess of $1,000,000 on litigation (roughly half each) over the last three years.
Through this extensive litigation, the parents’ relationship has grown in hostility. It is one of the most antagonistic that I have seen, between two highly intelligent adults, both of whom love their daughter and neither of whom have a diagnosable mental disorder. The child is caught in the middle of the conflict between her parents and that conflict is impacting upon the child.
There is no significant issue in this case in relation to parenting capacity. The child is progressing well in her health, cognition and developmental milestones. This is a credit to the mother, who has had a significant role in the rearing of the child. Little emphasis was placed upon that fact at trial. The reason was that this is not a case about with whom the child should primarily live – the parties are in agreement that the child should live with the mother, who is the primary caregiver and the parent to whom the child is primarily attached.
A major issue in this case was the willingness of the mother to facilitate a relationship between the child and the father on the one hand and the father’s sensitivity to the difficulties for the child’s attachment with him arising from his residing on the other side of the world, on the other.

APPLICATIONS

The father seeks some 30 orders, which are attached at Appendix A. Included in the orders which he seeks, handed up in Court on 17 December 2010, are that the child live with the mother and spend graduating time with the father, with overnights to begin immediately and gradually increase, and for overseas visitation to begin in August/September 2011.
The mother seeks some 47 orders, which are attached at Appendix B. The orders which she seeks, handed up in Court on 20 December 2010, set up a detailed schedule of the child’s time with her father until 2020. The orders are extremely particular in relation to the graduated nature of the time the child is to spend with the father. Overnight time is to first occur in 2013 and overseas time is only to occur in 2020 once the child turns 13 years old. The mother proposes that the child be reassessed by the child psychiatrist after 12 months and again prior to her spending time overseas with her father in 2020.

Recommendations of the child psychiatrist

Dr M was asked extensively about each party’s proposal and what regime he would find appropriate, both in relation to the child’s face to face time with her father in Australia and time with him in the United States. Dr M gave a general outline of an appropriate regime for the time the child is to spend with the father into the future.
In terms of daytime contact, Dr M recommended starting with about a two hour visit, then moving to two half days and then moving to full days, maybe with some breaks, but it would be appropriate to have some consecutive days. The number of consecutive days would be more substantive towards the end of the period. Dr M advised that the first contact would be partly facilitated, perhaps for the first half hour.
In regards to overnight time, at the end of the hearing the parties had agreed it could commence but disagreed about its timing. I made some interim orders commencing overnight time on 26 December 2010 and 2 January 2011. Dr M recommended that in May/June 2011, over a 4 week period, there would be one overnight in the first week; two overnights in the second week; two consecutive overnights in the third week and two consecutive overnights in the fourth week.
Dr M emphasised that the father needs to maintain the child’s general routine. Consequently it is important for him to receive information regarding her day to day routine and schedules from the mother.
Regarding overseas travel (of a 10 day duration), Dr M advised that, subject to comments to which I shall later refer, these begin from the year the child turns age five. He said one overseas trip with the father is appropriate in the first year overseas visitation begins, followed by two visits per year thereafter. Dr M advised that there may be advantages if the mother travelled with the child on the first one or two overseas trips. It means that the child would be more comfortable with the new adventure and the trip would potentially be less traumatic for the child. However Dr M also spoke of the disadvantages. This arrangement also must be weighed against whether the mother is a flight risk, which is discussed further below.
Dr M was asked whether or not it would be preferable in the early overseas occasions for the mother to be nearby in the United States. Dr M indicated that if it was a supportive relationship that would be helpful and appropriate, however I find in the circumstances of this case, the mother being nearby whilst the child is in the United States seeing her father is likely to undermine the transition into these arrangements.
Dr M opined that the mother’s orders sought “a somewhat complicated proposal” and overall assessed it as “quite slow” in terms of facilitating the development of a relationship between the child and her father. Dr M was critical of the restrictive nature of the mother’s proposal saying it would be harder to normalise the child’s relationship with her father.
Dr M seemed initially to embrace the tenor of the proposals of the father in relation to his time with the child. When questioned specifically, Dr M modified his view and said that the father was possibly moving a little fast; but maintained his general view that the speed of progression of the child’s time with her father, as proposed by her mother, was far too slow.

DOCUMENTS RELIED UPON

I am mindful of the volume of paper generated in this matter during the first three years and 10 months of the child’s life. Dr M attended court with a very large piece of travelling luggage containing the volume of paper that he had been given. Although I have actively managed this case and had discussed with the parties the central issues upon which this hearing would focus, I took the view (contrary to what would normally happen in proceedings being dealt with under Division 12A Part VII Family Law Act) that it would be more efficient to allow the parties to rely upon material which had already been produced than to attempt to edit that material. There was a high risk that any such attempt would produce satellite litigation which would only distract from the main purpose of the litigation.
The applicant father seeks to rely upon the following:
17.1.Further Amended Application for Final Orders filed 2 August 2010;
17.2.Father’s affidavit filed 2 December 2010. This affidavit seeks also to rely upon:
17.2.1.Father’s affidavit filed 22 December 2009;
17.2.2.Father’s affidavit filed 10 August 2009;
17.2.3.Father’s affidavit filed 12 June 2009;
17.2.4.Father’s affidavit filed 9 December 2008;
17.2.5.Father’s affidavit filed 28 November 2008; and
17.2.6.Father’s affidavit filed 21 August 2008.
17.3.Affidavit of Dr W Richards filed 1 December 2010;
17.4.Affidavit of Ms N filed 23 November 2010;
17.5.Affidavit of Rabbi B filed 23 November 2010;
17.6.Affidavit of Mr F filed 23 November 2010; and
17.7.Affidavit of Ms C filed 12 June 2009.
The respondent mother seeks to rely upon on the following:
18.1.Further Amended Response filed 3 September 2010;
18.2.Mother’s affidavit filed 19 October 2010 (her primary affidavit);
18.3.Mother’s affidavit filed 20 April 2010;
18.4.Mother’s affidavit filed 22 December 2009;
18.5.Mother’s affidavit filed 16 June 2009;
18.6.Mother’s affidavit filed 12 June 2009;
18.7.Mother’s affidavit filed 26 February 2009;
18.8.Mother’s affidavit filed 26 September 2008;
18.9.Mother’s affidavit filed 24 September 2008;
18.10.Mother’s affidavit filed 28 November 2008;
18.11.Mother’s affidavit filed 18 July 2007;
18.12.Mother’s affidavit filed 26 June 2007;
18.13.Affidavit of Mr A Whipp 13 October 2010;
18.14.Affidavit of Mr A Whipp 18 January 2010;
18.15.Affidavit of Mr A Whipp 12 June 2009;
18.16.Affidavit of Ms D Whipp 13 October 2010;
18.17.Affidavit of Ms D Whipp 28 January 2010;
The mother successfully applied to reopen the hearing to enable her to rely upon email correspondence between herself and Mr Freedman, her Israeli Attorney, in relation to his retainer and presence at the hearing. The mother also seeks to rely upon the following documents from the 2008 Hague proceedings:
19.1.Mother’s affidavit filed 25 January 2008;
19.2.Mother’s affidavit filed 21 December 2007; and
19.3.Orders and Reasons of Justice Ryan dated 7 March 2008
The following expert reports were in evidence
20.1.Family Report of Ms B dated 6 May 2009;
20.2.Chapter 15 Reports of Dr M dated 24 June 2010 and 7 December 2010.

SHORT HISTORY

The mother was born in 1967 and is 43 years of age. She is an experienced and capable professional.
The father was born in 1971 and is 39 years of age. He is `employed in the cinema industry.
The mother and father both adhere to the orthodox Jewish faith.
The mother and father began their relationship in March 2006.
The mother and father ceased their relationship in late 2006 or early 2007. Nothing turns upon this difference.
The mother returned to Australia in February 2007.
The child, was born in March 2007 and is three years of age.

CREDIT

Mother

I was unable to have confidence in all the evidence which the mother gave. At times she was untruthful. She had completed official documents which were incorrect. When confronted with inconsistencies in her evidence, the mother was not apologetic.
Despite the mother’s professional training, on many occasions she was unable to focus upon the question and respond in a direct manner, despite my request that she do so. To a greater extent than the father, she sought to editorialise in a way that left me to search for an answer within her narration. At paragraph 62 of the mother’s primary affidavit she says “Mr [Richards] reaps the benefits of the input that is invested into [the child] on a daily basis”. When asked whether this was a fair criticism of the father, the mother undertook an extensive and discursive discussion (Counsel for the father’s description of a “tirade” is a little harsh; “rant” is more accurate), which extends for some 43 lines in the transcript and did not respond to the question. I asked her the question again, and having considered her answer for an unusually long time (for the mother unusual) she said “I’m unable to respond to that question”. As I said to the mother at the time, that was a response in itself.
The mother has sworn to the truth of inaccurate information she has provided to the authorities. The child’s passport application dated 21 May 2007 is in evidence at Exhibit 10. Section 15A of the application required the father’s name, as shown on the child’s birth certificate. The mother had left this section blank. At that time, the father’s name was not on the birth certificate. However, section 15B of the form, nevertheless, required the mother to provide the address of the father and a contact telephone number. The mother also left that section of the form blank. The mother signed the form, declaring the information that she had given was true and correct, immediately above a warning that it was a criminal offence to make a false or misleading statement. Given that the mother’s name only was on the child’s birth certificate, the mother was also required to complete a document called a Form B8. Part 3 of the Form B8 asks “Has [the child’s] father ever signed any document that acknowledges paternity of [the child]?” The mother answered “No”. It also asks “Are there any … other agreements in existence or pending which could affect another person’s rights in relation to [the child]?” Again, the mother answered “No”. Both statements by the mother were deliberatively false. The mother had decided the father was not to be involved in the process of obtaining the child’s passport, notwithstanding the mother in an email dated 15 March 2007 conceded that she said “I have never denied you are the father and I am certain that you are” and the father’s lawyers sent the mother a letter dated 11 May 2007, (the details of which are summarised in paragraph 28 of Ryan J’s judgment) which, inter alia, acknowledged the father’s parentage and requested that his name be registered upon the child’s birth certificate. Had the mother correctly answered “Yes” to either of the questions she would have had to have completed part 6 of Form B8 of the application which asks this question, “Have you attempted to locate and contact the father for consent?” If the answer is no, the form asked the mother to state why she had not tried to contact the father. If the answer is yes, the form asks what measures she had taken. Question 6 also contains this instruction, “If you know the natural father’s whereabouts, you should make every effort to gain his written consent for a passport to be issued to your child”. The mother signed the declaration to the Form B8, declaring that the information she had given in the statement was complete and correct. The mother conceded that she understood that she was making a declaration on these documents in circumstances where it was an offence to make a false and misleading statement and agreed she had not appropriately completed them. Her willingness to have done this reflects poorly upon her credit.
The mother’s application for the child’s birth certificate is in evidence at Exhibit 11. Part D of the application is the section in which the mother had the opportunity to fill out the father’s details but left them blank and crossed those sections out. There was an instruction at the commencement of that part which reads inter alia, “if the father wants to be named on the certificate, there are some important steps he needs to take”. Again, the information in the completed application is certified by the mother as being given “thoroughly and that the information provided by her was to the best of [her] knowledge and belief, correct for the purpose of inclusion in the Register of Births”. The mother conceded during her oral evidence that she deliberately failed to provide any information about the father.
The balance of the evidence relating to the child’s birth certificate is particularly damaging to the mother’s credit. The mother told untruths about the day the application was made, and about when she sought to amend the certificate in accordance with Court orders. That evidence is outlined later in the judgment. Of particular note is the mother’s untruthful account of when she believed she received and read a letter from the father’s lawyers acknowledging paternity of the child. She said in oral evidence that she believed it was received after she had attended the Registry to register the child’s birth, when a previous affidavit said she received the letter prior to attending the registry. As discussed below, I conclude the mother was prepared to falsely assert a belief about a fact in the witness box which suited her position.
There were other occasions where the mother was untruthful in her oral evidence in order to minimise the effect of unfavourable evidence. One example is where the child had made reference to the father as a ‘bad man’ in interviews with Dr M. The father claimed the child has said these words to him on numerous occasions. The mother said she had never heard the child say it and none of her family members have heard the child say it. The mother then conceded that she heard the child say it when they were with Dr M but has not heard it again and disputed the father’s assertion that the child had said it again. Later in her evidence, the following exchange took place, where the mother gave a contradictory version:
Mother: She was repeating it to everybody. She was so distressed by the comment that she made herself…”
Judge: When you say ‘it’ what’s ‘it’?
Mother:The comment in relation to ‘you’re a bad man’
Judge:Right so she was saying that all over the place.
Mother:She was so distressed that I went out for coffee with some friends and she told all my friends ‘I said this to [Dr A]’.
Another example of the mother’s untruthfulness related to her evidence about whether she had retained a lawyer from Israel. On Thursday 16 December, the mother gave the following evidence (in the context of the mother’s October 2007 Israeli visit):
You retained attorneys in Israel did you?‑‑‑No.
Never did?‑‑‑I never retained any attorneys.
On Friday 17 December, after the mother had indicated that her knowledge of border controls in Israel came from a conversation with a male attorney who practices in Israel, the mother gave the following evidence:
…On what basis can you tell me something about Place [sic] Alerts in Israel?---Well, I’ve spoken to attorneys who - I’ve spoken to an attorney who practices in Israel, and he has advised me that - - -
Just before you go on: I will check your Honour.
When did you speak to this attorney?---Recently.
9 o’clock this morning, or yesterday or when was it?---In the last week.
All right?---Mm.
What was his name?‑‑‑He’s in this room.
Is it the man sitting in the back of the room?‑‑‑Yes.
What’s his name?‑‑‑Ed Freedman.
He has been here throughout the trial, hasn’t he?‑‑‑Yes.
What has been his purpose of being, here, at the trial?‑‑‑He’s assisting me.
What has been his purpose of sitting in the trial?‑‑‑He’s assisting me in coming to a good resolution.
Is he retained by you?‑‑‑No.

The mother in subsequent cross examination denied Mr Freedman had provided her with advice in relation to the parenting of the child outside this jurisdiction. I am unable to accept that evidence, particularly as it related to conversations between the mother and Mr Freedman when they first had a conversation in 2007.
The mother was then asked this question:
Well, ma’am, what is the purpose of his assistance for this trial, in circumstances where I assume he hasn’t met you before this week?---He was interested in coming to Australia and he was interested in assisting my team - assisting me.
At this point the mother had an opportunity of correcting the answer that she gave in which she stated that Mr Freedman had not been retained by her but she did not do so.
At approximately 11.32am I adjourned the court. Prior to the adjournment Counsel for the father sought an order, if necessary, that Mr Freedman not leave the court building during the adjournment. I sought an undertaking from Mr Freedman to that effect, which he gave. It would have been plain to the mother at that time that questions might be about to be asked of Mr Freedman about how and why he was involved in the hearing. I resumed sitting at 12.05pm. Immediately upon the resumption, the following exchanges occurred between Counsel for the father and the mother :
Now, [Ms Whipp], you said before morning tea that Mr Freedman, sitting in the back of the court, hasn’t been retained by you?‑‑‑Well, that’s not quite correct.
Right?‑‑‑I have – we have got an agreement in relation to his – I invited him to come here and we have signed an agreement and there are certain funds that have been passed from myself to Mr Freedman and he’s assisting me in – he’s giving me legal advice and I am taking that advice. So he’s also assisted me in the past with preparing a Hague – he actually did The Hague submission on my behalf, which was submitted and filed in court.
Right. So he is retained by you?‑‑‑Yes.
So what you said before morning tea was an untruth?‑‑‑It was not an untruth. The engagement on this occasion is a little bit of a different engagement than on the last occasion but it’s a form of engagement.
During supplementary submissions made on the instructions of the mother on 16 February 2011 (after the mother had made a successful application to reopen the case to lead further evidence), the lawyer for the mother asserted that, after the resumption on 17 December 2010, the mother had volunteered, without prompting, that she had made a mistake in her evidence prior to the adjournment. It was asserted by the mother’s lawyer that the transcript was inaccurate. I have quoted the relevant transcript above. I am satisfied, having re-listened to the audio recording of the evidence, that the transcript is accurate.
Upon returning from the adjournment, the mother changed her evidence and admitted that she signed a retainer with Mr Freedman in December 2007 and that she had retained him to be present during the trial. Mr Freedman is a lawyer from Israel who specialises in international child abduction. He sat in the back of the courtroom during the first five days of the final hearing.
In the mother’s email to Mr Freedman dated 26 November 2010 she states: “I think it is important to set out the terms of our arrangement so that our expectations are met.” She then sets out the amount she will pay him each day; that she will be paying his return airfare and the arrangements that she had made for his accommodation. The mother then asks him to “attend on each court day and in a consultancy roll assist myself, counsel and my solicitor with court preparation, pre-during and post the daily hearings, drafting of any orders, reading of daily transcripts and general strategy of questioning witnesses and submissions. During recesses, counsel, solicitor and myself will be preparing for the next session of examination and it is expected that you attend those preparation sessions. In the event that there are any preparation sessions just prior to the hearing, on the weekend, it would be appreciated if you could attend those with me”. Mr Freedman was provided and asked to read the bulk of the material in the case. Mr Freedman, in an email to the mother on 26 November, says, “The contents of your-mail are accepted….I look forward to participating in the proceedings to the fullest extent possible”.
The mother submitted that her answer “no” to the question “is he retained by you” should be read in the context of the evidence given immediately preceding and following the answer and that as a result of reading that evidence, I should not conclude that the mother was trying to mislead the court, but rather that possibly there was a misunderstanding as to the proper meaning of a “retainer” as the emails show that there was no “formal” retainer agreement.
There are two difficulties with that submission. The first is that, as set out above, in the oral evidence which the mother gave after the adjournment she said “… we have signed an agreement…”. I note in passing, that when reopening her case, the mother did not seek to tender that agreement. The second difficulty is that my clear impression of the mother’s evidence at the time (confirmed by a re-reading of the transcript) leads me to conclude that her initial statement to me, that there was no retainer was a deliberate lie.
Money exchanged hands for Mr Freedman to be present in Australia for the current proceedings. The mother is an experienced professional. She knew when she initially told me she had not retained Mr Freedman for the trial that she was not telling me the truth. She also did not initially volunteer the true position about her retaining Mr Freedman in 2007.
I find that Counsel for the mother put on instructions to the father during cross examination that he had been sent an email by the mother offering supervised time in New York in 2007. The father denied this and asked to be shown the email. No such email was produced. Counsel for the father asked the mother to peruse her emails overnight and provide this email. No email was produced. The mother then conceded there was no such email and instead said that she had left a voicemail. Notwithstanding the enormous volume of written material produced in this matter by the mother, she had never referred to this voicemail up until when she was pressed about the existence of this email during cross examination. I find that the voicemail was not left by the mother and it was a recent and convenient invention during her oral evidence.
The mother was asked why she had opposed the application that the father be declared the biological father in mid 2009 and then consented in September 2009. The reason she gave was that the affiliation proceedings in New York were still on foot. However the New York proceedings had been dismissed in March 2009. The mother already had the paternity test results by then. There was no apparent forensic advantage in opposing that application, and the mother seemed to be opposing things just for the sake of it.
As I find below, the mother in her April 2010 affidavit deliberately misquoted a 2006 DoCS record, leaving out vital words, so as to provide a significantly false impression as to what the document said.
I also discuss below the difficulty the mother had in accepting the unchallenged account by Ms B, a family consultant, of the mother’s conversation with her on 1 December 2008, which account I accept as accurate. Nor do I accept the mother’s assertion that she did not instruct her then counsel to put matters to me in relation to the subsequent contravention proceedings (also discussed later).
The mother prepared her most recent affidavit without the assistance of her lawyer, who was overseas at the time. The mother admitted to extensive experience as a professional, …. She had also received family law advice from senior and prominent family lawyers in relation to her case. Despite this, the mother provided narration and commentary in her affidavit that would not normally be found in an affidavit settled by a lawyer. The father’s counsel describes the language as ‘stinging, inflammatory and barbarous’. Despite the mother’s experience, the affidavit presents in a fairly unfiltered way, the mother’s true attitudes, beliefs and perceptions as at 19 October 2010. Counsel for the father suggested that there should be no reason to doubt that the mother’s expressions, which are direct and precise in the October affidavit, set out exactly what she thought. The mother sought to soften those sentiments in cross-examination, and consequently, gave answers in her oral evidence that were wholly inconsistent with her most recent written evidence.
The mother originally sought the child have no overnight visits with the father until she was seven years old, in contradiction to Dr M’s advice that three and a half is an appropriate age. Paragraph 40 of her most recent affidavit reiterated that view in stinging terms. The mother changed tack when the hearing commenced and offered the father an overnight visit with the child during his time in Australia. On 15 December 2010, when asked when she changed her opinions as to overnight time, the mother told me “over the last couple of weeks”. A letter from the mother’s solicitors of 7 December shows the mother still had not offered the father overnight time. I asked the mother to clarify her position. She gave me a rambling response about having decided a couple of weeks ago that overnight time was appropriate, but not for the current visit and instead for the next one. I do not accept that answer. She later told me that she still had reservations but changed her mind because “We all have to compromise ultimately” but denied it was a tactic in the litigation. I am not convinced in the least.
The mother was asked about her comment in paragraph 1 of her most recent affidavit that the child looks upon her cousins as an extension of her family. The mother said in oral examination “I do not believe that the child sees these two boys that she saw in Perth once – who do happen to be her cousins, as an extension of her family, because she’s met them once”. She therefore said in oral evidence exactly the opposite of what she said in her affidavit. I asked her which version she wanted me to accept and she chose the affidavit evidence.
The mother seemed willing to give accommodating responses which did not reflect her true sentiment. For example, an issue arose in the proceedings about whether or not the child’s school enrolment records could be available for the father to inspect (with the obvious intent of tendering the documents if they were relevant). The mother originally indicated that she would obtain the forms herself but they initially did not materialise. When she was asked if she would agree to provide an authority to the schools the child was enrolled with to release the original enrolment forms, the mother originally replied “Yes; but I have already left a message that when the enrolment offer comes back, to give me a call”. In replying ‘yes’ I took the mother to be agreeing to provide to the father a written authority to obtain the forms. However, when pressed about providing the authority she had just agreed to, the mother responded “Then that means that the schools are getting involved in a legal – I don’t really want the schools to – before the child even enters the schools to be in a situation where they already know that the child is a legal problem.” Her initial indication expressing a willingness to provide an authority to the father was not genuine.
The mother was tardy in terms of putting material together that she had in her possession in response to the notice to produce. She clearly hadn’t read the notice that requested bank statements that evidenced payments made by the father.
The mother’s most recent affidavit on its face said that it was settled and prepared by the mother’s lawyer. During oral evidence the mother conceded that she had entirely prepared the affidavit herself because her lawyer was overseas. It was inappropriate for me not to have been alerted to this at the start of the trial or at an earlier stage by the mother or her lawyers.

Father

The father regularly found it difficult to simply concede evidence which was not in his favour. At times he was unable to accept propositions that were plainly obvious because he was determined to outline the background and context. While, like the mother, his answers were often long winded, I do not find the father to have deliberately fabricated any evidence. There were, however, some parts of the father’s evidence which I found were unsatisfactory, which I now discuss.
The father found it very difficult to concede that difficulties experienced in Skype conversations with the child may be due to technology mishaps rather than the mother. Initially the father said that his Skype interactions with others were faultless and he had no issues. He later acknowledged that he sometimes does experience issues with Skype conversations with other people, but these are rectified quickly. During his evidence his position seemed to change from the mother being responsible for the unique difficulties, to the mother simply being inattentive to the technology and not rectifying the problem within an appropriate timeframe.
The father’s affidavit of December 2010 said that it had been necessary to seek orders from the Court (made 10 August 2009) to receive information about the child’s treating doctor. An email subsequently produced of 17 March 2008 shows that the mother gave the father Dr H’s name before those orders were sought. The father claims that while he was given Dr H’s name, he was not the treating doctor at the time. A letter from the mother’s lawyers dated 17 August 2009 said that details of other doctors were provided during Court events or by the provision of reports in December 2008 and June 2009. I find that it was disingenuous of the father to claim, in a blanket way, that the mother would not provide him any details of the child’s medical practitioners.
The father has recorded a number of conversations between himself and the mother. Initially the father variously explained this was to keep the mother talking about practical realities rather than making threats, and because the mother kept changing her position on important matters and he could not keep track of what were the mother’s current proposals. In response to cross-examination on the topic, the father did not initially concede that he was making recordings to gather evidence for the proceedings. When I challenged him on this point he finally acknowledged that this was exactly what he was doing.
As discussed below, I do not accept the father’s explanation as to why he originally applied for custody of the child in New York rather than visitation.
On the DVD entitled ‘bad videos’ there is a recording where the mother asked the father to turn off the recording device. The father said he put the recorder down thinking it was switched off. Having again reviewed the DVD I am unable to conclude that the father was being untruthful. Whilst it might be inherently unlikely that a person employed in the cinema industry would not know if he had turned a camera off, the father didn’t put the camera back down to focus on where the child was and the father was not fussed about staying in the camera’s view, or speaking loudly enough for the camera to record what he said.
On 21 October 2007, the father wrote a letter to “Rabbis and Friends” finishing with the comment “If you have knowledge of [Ms Whipp’s] and [the child’s] whereabouts, please contact the police or family court immediately”. The mother asserts this statement by the father gave a false impression of the father’s state of knowledge about the child’s whereabouts at the time and I find that was so. In his affidavit of 17 October 2007 the father said he knew his daughter was in Israel. Before writing the letter he had initiated proceedings in Israel to have the mother and child’s exit blocked by authorities, believing they were in Israel (and that order was granted on 22 October 2007). He had spoken to two Hague lawyers in Israel that were ‘conflicted out’ because they had already spoken to the mother. Paragraph 15 of the father’s affidavit of 17 October 2010 said that he had ‘received information’ she was in Israel. The father said that information was obtained from overhearing a conversation on the mother’s phone that was in Hebrew. In the father’s evidence in the current proceedings the father said that he believed the mother and daughter were in Israel, but that he could not be sure. When I commented to the father that surely he had a strong belief the child was in Israel and his appeal to Rabbis and friends was disingenuous, the father responded that he was hoping for an eye witness and the appeal was not so much asking ‘where is she?’ but to explain the situation was not as they’d heard. The father’s inability to make concessions on this issue did him no credit.
The father went to a great amount of trouble to have the mother register his name on the child’s birth certificate, and at one stage prevented the mother’s travel to the USA as she had not complied with this Court’s order that she do so. It was put to the father that his preoccupation with the child’s birth certificate was to strengthen his position in any litigation about custody of the child in the USA court system and the child’s status in the USA. The father initially refused to concede this point, explaining that he had already applied for custody on 30 August 2007 without the birth certificate and he wanted the certificate so that the child could recognise him as her father. The father had mentioned in a previous affidavit that he wanted the birth certificate for the exact purposes he denied in cross examination.
Before leaving the issue of the father’s credit, I should note that at one point in his evidence the father became teary and it was clear at the time that that was a genuine emotion associated with the difficulties he had experienced in establishing a reasonable pattern of the child having time with him.

Conclusions about the mother and father’s evidence

Taking the evidence overall, and having closely observed both of the parents in the witness box I have far more confidence in the evidence of the father than in the evidence of the mother. Where the versions of the parties conflict, I prefer the evidence of the father, unless stated otherwise.

Ms N

Ms N is a family friend of the father, who attended on three of the father’s visits with the child. On two of those visits, opposition was taken to Ms N’s presence. On the first visit, the mother became angry and called the father names, while the father remained calm. On the second occasion, the father spoke to the maternal grandfather and visitation with the child was refused.
The video-link with which the Court was to observe the demeanour of Ms N was not operational, and so evidence was taken by audio-link. Notwithstanding the fact that I did not observe Ms N visually, Counsel for the mother made no submission in relation to Ms N’s credit, and the questions asked of Ms N, and the answers that she gave, did not impugn her credit in any way. I was impressed by her oral evidence. She seemed to answer questions in a straightforward way. The weight I place upon her evidence need not be modified as a result of not seeing her.

Mrs Richards

Mrs Richards, the father’s wife, gave evidence via video-link. Mrs Richards told me that her affidavit was written with the assistance of contemporaneous notes, written after the occasion of each visit that she and the father had with the child. She did not review video footage, and I find there has been no collusion with the husband in the construction of her affidavit material or oral evidence. Mrs Richards impressed me as an honest and forthright witness. She was willing to give details of the unfortunate decision made by her to not accept water from the mother from a bottle which had had the seal broken, when that evidence showed her in a poor light. When speaking about the child, Mrs Richard’s affection for her was apparent.

Dr W Richards

In cross examination, the credit of the paternal grandfather was brought into question. In paragraph 17 of his affidavit filed 1 December 2010 he says that on 19 August 2007 the mother said, “[The father] does nothing without your approval. I want you to stop the litigation and have the issue settled with a Rabbi. If not, I will leave New York and you will never see your granddaughter again.” In a previous affidavit of the grandfather from 2007 (Exhibit 7) there are additional words that the mother will leave New York “and return to Australia”. He conceded that he had omitted those words in his most recent affidavit but asserted that that omission was not deliberate. The mother’s intentions when she left New York in September 2007 are of some importance and the omission in the paternal grandfather’s most recent affidavit gives me some disquiet. However, having otherwise observed the paternal grandfather giving his evidence, I accept that the paternal grandfather’s omission was not deliberate.

Ms D Whipp

Ms D Whipp is the mother’s sister. Her affidavit was prepared by herself (not prepared and settled by Diana Perla as indicated on the document). The mother’s sister exhibited a trait, similar to the mother, of allowing questions, asked in cross examination, to trigger a fairly freeform response, providing information that the witness thought it might be good for the court to know. Counsel for the father submitted that her language in her affidavit material was ‘toxic’ and she was firmly aligned with the mother, reducing her ability to give objective evidence. Her affidavit contains material which is very opinionated and critical of the father, but I would not agree that it is ‘toxic’. Her evidence however is of little probative value. I agree that she was firmly aligned with the mother and that does impede her ability to give objective evidence, but that applies to the relatives of both sides.

Mr A Whipp

Counsel for the father made an assertion that Mr A Whipp, the maternal grandfather, had actually provided information in anticipation of questions that had not been asked. This indicated that he had some knowledge or insight as to the oral testimony of his daughter. Whilst I can’t conclusively say that there had been a conversation between the maternal grandfather and the mother about the areas that she was being cross-examined upon, I have little doubt, given answers that he gave, that the two of them have spoken extensively about the facts and circumstances in respect of which both of them were giving evidence.
The maternal grandfather conceded some of the information in his affidavit was not first hand information but based on what the mother had said to him. Accordingly I approach the maternal grandfather’s evidence about contentious issues with some caution. The maternal grandfather gave contentious evidence about the timing of his trip to New York and Israel and the lack of that having any correlation with the mother leaving New York. I treat that evidence with some care. Having said that, however, I acknowledge his contributions as a loving grandfather to the child and an effective facilitator of the child’s time with her father.

Rabbi B

The mother submitted that Rabbi B’s credibility was in question as a result of him not being able to adequately explain why it was he had formed the opinion that the parties should bypass the utilisation of the Beth Din (a form of dispute resolution by members of the Jewish faith). I do not find that a reason to discount the Rabbi’s evidence. The Rabbi’s opinion is inherently consistent with the mother’s own general submission that there has been a lack of trust between the parties from the outset.

CHRONOLOGY

The mother was born in Australia in 1967. The mother is an Australian citizen.
The father was born in the USA in 1971. The father is a United States citizen.
The mother worked in Japan between 1997 and 1999. She also made four short visits to Japan between 2002 and 2004. In 1992 the mother attained professional qualifications. From 1992 she worked internationally in the technology and intellectual property arena and up until 2008 spent the majority of her time working outside Australia. Justice Ryan noted that when the mother was in New York in 2005, she was there on a tourist visa. She also returned to the United States in 2006 on another tourist visa.
The parties met in New York in March 2006 and had a short relationship until September 2006. At the time the parties met, the mother represented to the father that she was 30 years of age when in fact she was 38 years of age.
On 2 August 2006, the father returned from a holiday in Israel to the United States and was advised of the mother’s pregnancy. The father had decided in Israel to end the relationship.
The mother claims that in mid-September 2006 the father had rough sex with her which caused bleeding. She considered this to have been an intentional act to terminate the pregnancy. I do not accept the mother’s evidence about this.
In February 2007 the mother travelled to Australia for the birth of the child. The father accompanied the mother.
The child was born in March 2007.
The paternal grandparents arrived in Australia on 29 March 2007.
For the first 6 weeks of the child’s life the father spent time with the child on a daily basis in the mother’s presence. This continued until late April 2007 when the father sought time with the child outside the presence of the mother. There was a disagreement on 3 May 2007 with a temporary suspension by the mother of the child’s visits with the father. When that suspension ceased, and until the mother returned to New York, the child saw her father often.
On 7 April 2007 an agreement was apparently made whereby the mother would return to New York to resume work but if things didn’t work out she wanted to be able to return to Australia. The father said he would consider it and asked to be placed on the birth certificate. The mother said the father retracted his agreement and so she refused to put him on the birth certificate.
On 11 May 2007 the father’s lawyers sent a letter to the mother, inter alia, requesting that the father’s name be placed upon the child’s birth certificate. The mother said she received the father’s 11 May 2007 letter on 16 May 2007. She attended the Registry of Births Deaths and Marriages on that day to register the child’s birth without the father’s details. I outlined above and discuss further below, the mother’s conflicting evidence in relation to when she read the letter.
On 20 June 2007, the father commenced proceedings in the Family Court of Australia for parenting orders permitting the child to spend time with him on an incremental basis and other orders, including the recording of his name on the child’s birth certificate.
On 21 May 2007 the mother applied for the child’s Australian passport, and did not include the father’s details on the application.
On 4 July 2007, Orders were made by Justice Mushin facilitating the child’s relocation to the United States with both of the parents and for the father’s name to be added on the child’s Birth Certificate. Her relocation to the USA was on the condition that the parents submit to the New York jurisdiction within 72 hours.
On 9 July the mother was removed from a flight to the United States. The circumstances in which this happened are explained at paragraph 40 of Justice Ryan’s judgment. The Order of Justice Mushin of 4 July 2007 required that both parents travel together with the child to New York. The father failed to board the plane because the mother had failed to comply with the order in relation to the birth certificate. As the father was not on the plane, the child was not allowed to leave Australia.
On 16 July 2007 the mother attended the Registry of Births Deaths and Marriages to include the father on the child’s birth certificate, in circumstances dealt with in detail below.
On 20 July 2007 the Registry of Births Deaths and Marriages advised they would require paternity testing before including the father on the birth certificate.
By way of consent orders made by Justice Le Poer Trench on 19 July 2007, the child’s name was removed from the Watchlist to enable her to travel back to New York with her mother on 22 July 2007. They were accompanied by the maternal grandmother. The father remained in Sydney.
On 27 July 2007 the mother had her employment in New York terminated. Justice Ryan found that once the mother’s nominated employment ended, her E-3 visa only entitled her to remain in the United States for 10 days unless she found new employment.
On 16 August 2007 the father arrived back in New York. He said the mother refused to allow him time with the child.
On 31 August 2007 the father filed petitions in the Family Court in the State of New York relating to paternity and custody.
On 6 and 10 September the father tried to serve the mother with Court documents for the New York proceedings he initiated. The mother said she was not served. Transcripts indicate that on one occasion when the process server was trying to serve the mother, she was present but refused to open the door. Counsel for the father in New York admitted “we didn’t get good service on the custody”.
On 15 September 2007, the mother departed New York without the father’s knowledge or consent. She travelled with the child to Israel and arrived on 16 September 2007. The mother said she was not aware that proceedings had been initiated in New York.
The first appearance in the New York proceedings was scheduled for 17 September 2007. On that day, in the mother’s absence, an Order was made by the Family Court in the State of New York requiring the mother produce the child at Court the following day.
On 18 September 2007, an Order was made requiring the mother again to produce the child to the Court and surrender her passport. She was restrained from removing the child from New York.
On 16 October 2007 the Family Court in New York issued an arrest warrant for the mother.
The father did not ascertain that the mother had removed the child from New York until 17 October 2007.
The father commenced Hague proceedings in Tel Aviv Family Court. On 22 October 2007, orders were made restraining the mother from departing Israel with the child, however the orders were made too late and on the same date the mother left Israel with the child to travel to Australia.
On 23 October 2007 the mother forwarded an email to the father contending that she was in Israel with the child, and that both she and child were well. Justice Ryan found that the mother was “silent about her departure for Australia and it appears that the email is a reprehensible attempt to mislead [the father] about their daughter’s whereabouts”.
The mother and the child arrived in Australia on 24 October 2007.
On 1 November 2007, the father completed an application under the Hague Convention seeking the child’s return and on the following day the United States Department of State made a request to the Australian Central Authority to take action, which they did on 6 November 2007 by commencing proceedings in Sydney.
On 9 November 2007 a default custody order was issued to the father in New York. On 30 November 2007 the mother sought to vacate the custody order pending outcome of the Hague proceedings in Sydney, and sought to vacate the arrest warrant against the mother. The arrest warrant was vacated that day and the custody order in New York was “vacated” on a later date.
On 12 November 2007, the Central Authority in Australia obtained an order restraining the mother from removing the child from Australia and placing her on the PASS alert system. The order restraining the child from leaving Australia has remained in place since this date.
The NSW Department of Community Services initiated Hague proceedings in Australia for the return of the child from Australia to New York. The Hague Convention proceedings were heard on 14 January 2008 by Justice Ryan. On 7 March 2008, Justice Ryan dismissed the Application.
On 28 November 2008, Justice Cohen made Orders enabling the child to spend time with the father that month and in December 2008, and further made Orders requiring the attendance of the parties on a Family Consultant. Prior to these orders, the father had not come to Australia to see the child for 16 months. The mother attended upon the Family Consultant but would not participate and contempt proceedings were sought to ensure she participate on a future occasion.
In December 2008, the birth certificate was amended to include the father’s details.
On 21 December 2008, the father married his current wife.
On 17 February 2009, the child first saw a doctor about her constipation.
On 8 April 2009 the parties were restrained from taking steps in New York courts, pending final determination of the Australian proceedings.
The father spent time with the child between 31 March 2009 and 27 April 2009.
On 12 April 2009 the visit with the child was disrupted by a violent incident between the parties. This is dealt with in detail below. Another unfortunate incident occurred involving the police on 13 April 2009, also dealt with below. The April 12 2009 incident led to the police commencing proceedings against the mother seeking an apprehended violence order. These proceedings took place at the Downing Centre Local Court in September 2009 and January 2010. The application for an order against the mother was ultimately dismissed.
The child saw the doctor for severe constipation again on 29 and 30 April 2009, 14 May 2009 and 11 June 2009.
The father came to Australia from 12 June 2009 to 29 June 2009, 21 August 2009 to 4 September 2009, and 17 November 2009 to 2 December 2009. The child saw her father at various times during those periods.
Interviews were conducted with Dr M in January 2010.
The father visited Australia for court events and to spend time with the child on various days in the periods from 14 January 2010 to 3 February 2010, 14 July to 5 August 2010, and December 2010 (with interim orders extending into January 2011).
On 19 July 2010, the mother made an application that I disqualify myself. That application was dismissed.

THE PARENTAL CONFLICT

Dr M, in his report of June 2010 describes the “depth of mistrust, resentment and hostility which characterised the parental relationship.” The mother described the relationship between her and the father as “disastrous”, “non-existent” and “at the lowest level of a relationship that can possibly exist”.
The original source of the conflict appeared to Dr M to be the failure of the father to commit to a long term relationship with the mother, especially upon finding the mother was pregnant. The mother thought the relationship was ‘serious’ but the father would not commit. The father says in his affidavit of 28 November 2008, which I accept, that the mother made frequent appeals for the parties to be married.
Ironically, Dr M noted that the conflict between the parents has been fuelled by each parent’s high investment in their parental role.
Dr M summarised that the high parental conflict is a result of the following:
123.1.Personality of each party;
123.2.Breakdown of the parties’ relationship;
123.3.The parties’ engrossment in the child; and
123.4.Ongoing difficulties.
In his affidavit material, the father refers to the mother as a ‘psychopathic liar’. On the second day of the trial he seemed to maintain that opinion, though acknowledging he was not qualified to diagnose pyschopathy.
I accept the submission made by Counsel for the father that the history of this litigation discloses a recurrent pattern of a lack of focus by the mother on the actual matters that go to the child’s welfare and an excessive focus on process, so that the process itself has become the dispute rather than anything that has as its centre the child’s best interests.

Impact on the child

Dr M noted that there was “no doubt” that the child had been exposed to parental conflict, and the mother acknowledged that this had had an impact on the child. He explained that the consequence of parental conflict on the child is that the child’s emerging identity is at risk.
In her interview with Dr M the child said “Mummy gets angry. Mummy gets angry because she does. She pushes the bad man out of my home… Daddy, because he did, because he does wrong. He pushes my bed out of my home…I said it, because he did. Mum says: “Out of [the child’s] home, my home” to daddy. She’s angry like that and like that…” This demonstrates that the child even at her young age has picked up upon the very negative attitudes held by the mother in respect of the father.
The father said he has heard the child call him a ‘bad man’ on multiple occasions out of the blue. Dr M noted in his report that the father’s allegation in that respect was supported by the child having repeated that phrase in interviews with no prompting or context. The mother heard the child use the phrase in Dr M’s interview, and has heard the child say it since. I earlier discussed the evidence about this when dealing with the mother’s credit.
The mother denied referring to the father as a “bad man”. The mother’s position was that at less than three years of age, the child was associating the father as a bad man because he was not allowed to come into their home, and only people that were not friends were not allowed to come into the home. She said the child had been learning about ‘stranger danger’ and this reinforced the notion that people not allowed into the home are ‘bad’. I do not accept the mother’s benign explanation for the child’s statements about the father being a “bad man”.
The mother conceded that the “bad man” comment was “very unfortunate”. Dr M said that he had not made any notation that the mother was alarmed when she heard the child make the comment in the interviews, and had she made a reaction, he would have noted it.
The mother also conceded that she didn’t record anything in her affidavit about what remedial steps she had taken upon hearing this comment. The mother said that she had spoken shortly to the child about her comments. Later she said she had one “good” discussion. She decided that no further discussion with the child was needed because to emphasise it might have been counter-productive. She also said that any lengthy discussion was unnecessary because she knew the child didn’t actually think the father was a bad man and has not said it since. This does not accord with her evidence that the child associated the father with “bad” strangers, and that she had actually said it on more than one occasion.
The maternal grandfather said that the child had used words like “bad man” towards him, although he then seemed to modify his evidence to say that those exact words weren’t used. The maternal grandfather was of the opinion it wasn’t possible that the child could have heard something in his household that was derogatory of the father, even though he conceded that those types of statements were made between the adults.
I find that the mother has heard the child refer to her father as a “bad man” more than once, and that this is as a result of hearing the mother or another person refer to the father in that way, and that the mother has not properly sought to dissuade the child from the notion that the father is a bad man. I find that the child has been exposed to negative attitudes against the father in the mother’s household.

Violence

The mother alleges in her October 2010 affidavit that the father was abusive. The mother said in mid-September 2006, when the mother was about three months pregnant, the father had rough sex with her. The mother asserts this caused bleeding and the mother considered that to have been an intentional act by the father to terminate the pregnancy. It was put to the mother that violence was raised for the first time in Dr M’s report in January 2010, which reported that her anxiety in the child’s early months was due to the “antagonistic and controlling relationship with the father” and then was raised more specifically in her October 2010 affidavit. The mother initially seemed to agree with that assertion.

That the mother and the father do all acts and things and sign all documents necessary to instruct and authorise the administrators of such day care, childcare, pre-school and/or school as the child may attend from time to time to forward to the father copies of all the child’s school reports, newsletters and all notices relating to school events, functions, parent/teacher meetings, parent-helper opportunities and the like immediately upon the child’s enrolment.
That the mother be restrained from enrolling the child in any pre-school and/or school without the father’s prior written consent.
That the father be at liberty to attend day care, childcare, pre-school and/or school events and activities including but not limited to parent/teacher meetings, school concerts and sporting events in which parents are able to attend or participate in.
That the mother must do all acts and things and sign all documents necessary to change the child’s name to [L Whipp-Richards].
That the Australian Federal Police are requested to maintain the name of the child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and retain the child’s name on the Airport Watch List until further Order of the Court.
That the mother forthwith deliver all original passport(s) for the child to the Exhibits Office of the Sydney Registry of the Family Court of Australia where such passports are to be held by the court and released to the father and/or his nominee for the purpose of facilitating overseas travel pursuant to Order 1.
That the father will accompany the child on all flights to and/or from the United States of America.
That each party will pay one half of the return airfares to and from the United States of America for the child.
That the mother be restrained from removing the child and/or causing the removal of the child from the Commonwealth of Australia without the prior written consent of the father or an Order of the Court.

APPENDIX B – MOTHER’S ORDERS SOUGHT

1 That the child [L] ("[L]") born … March 2007 live with the mother.

That the mother have sole parental responsibility for making decisions on major long-term issues relating to [L].
That all previous orders made in the Family Court of Australia be discharged.
That [L’s] name be removed from the Airport Watch List and the Australian Federal Police are requested to give effect to this Order.
That the father spend time with [L] in the country and city in which she resides from time to time and such care periods which may be exercised by the father in Sydney shall also apply to any other city in which the mother and [L] are located, except where the mother and [L] are only in the city for a six week holiday period.
That in the event that the court determines it is required, the mother provide security for the return of [L] to Australia prior to each overseas trip, by having an autonomous unconditional non-accessory bank guarantee for the amount of $ US 20,000 issued for the period of the visitation period plus 3 days so that if the child is not returned on the appointed day, barring an act of God, the Bank Guarantee can be executed within 48 hours of the scheduled date of return.
That the father forthwith do all acts and things and sign all documents to have Orders made by consent which mirror the Orders herein in Los Angeles, California and the father shall bear all costs involved in the preparation of the documents and filing fees in Los Angeles, California.
Provided that the mirror Orders are identical in terms of these orders, the mother shall do all acts and things and sign all documents to ensure the making of the consent orders pursuant to Order 7.
That in 2011 [L] spend time with the father, in accordance with Order 8, as follows:
a.For the first 20 days in July 2011;
b.From 12 September 2011 to 26 September 2011;
c.From 13 December 2011 to 3 January 2012;
During the care periods in 2011, [L] will spend time with the father as follows:
(i) Day 1 Visit 1- from 5.00pm-6.30pm.
(ii) Day 2 Visit 2- from 8.30 – 12.30pm;
(iii) Day 4 Visit 3 from 8.30-12.30pm;
(iv) Day 6 Visit 4 from 9am to 5pm;
(v) Day 8 Visit 5 from 5pm overnight to 9 am on day 9;
(vi) Day 10 Visit 6 from 8.30-12.30pm;
(vii) Day 12 Visit 7 from 9am to 5pm;
(viii) Day 14 Visit 8 from 5pm overnight to 9 am on day 15;
(ix) Day 16 Visit 9 from 8.30-12.30pm
(x) Day 18 Visit 10 from 9am to 5pm
(xi) Day 20 Visit 11- 9.00-5.00pm.
That in 2012 [L] spend time with the father in accordance with Order 10 as follows:
a.For the first 20 days in July 2012;
b.For 20 days commencing 13 December 2012;
c.On one other occasion for 14 days providing that the father advises the mother of the dates prior to 1 January 2012.
During the care periods in 2012, [L] will spend time with the father as follows:
(i) Day 1 Visit 1- from 5.00pm-6.30pm.
(ii) Day 2 Visit 2- from 8.30-12.30pm;
(iii) Day 4 Visit 3 from 9.00- 5.00pm
(iv) Day 6 Visit 4 from 9am to 5pm;
(v) Day 8 Visit 5 from 5pm overnight to 12 pm on day 9;
(vi) Day 10 Visit 6 from 8.30-12.30pm;
(vii) Day 12 Visit 7 from 5pm overnight to 12pm on day 13;
(viii) Day 14 Visit 8 from 9am to 5pm;
(ix) Day 16 Visit 9 from 5pm overnight to 12pm on day 17;
(x) Day 18 Visit 10 from 9am to 5pm;
(xi) Day 20 Visit 11- 9.00-5.00pm.
That up to two people nominated by the mother shall facilitate Visit 1 for a 90 minute period and
(i) In 2011 the first 30 minutes of the next four subsequent visits.
(ii) In 2012 the first 30 minutes of the next three subsequent visits.
(iii) In 2013 the first 30 minutes of the next two subsequent visits.
(iv) In 2014 the first 30 minutes of the next one subsequent visit
(v) In 2015 no other visits except Visit 1.
That [L] be re-assessed by [Dr M] 12 months following the implementation of these orders. The [L] also be re-assessed prior to spending any overseas visitation period with the father to ensure that she is developmentally ready for such visitation and immediately on her return to Australia, be assessed again to complete the review.
From the time that [L] attends school in 2013, [L] spend time with the father as follows:
a.Over the July term holidays for 14 days such times to coincide with the NSW Gazetted school holiday period and to commence the Monday after school concludes;
b.Over the December/January Summer Holidays for 21 days such times to alternate annually commencing either the Monday after school concludes or the fourth Monday after school concludes;
c.One other time during the year for 14 days, except during the school holiday period at the end of Terms 1 and 3, providing that the father advises the mother in writing of the dates prior to 1 January in each year.
d.Such other times as are agreed between the parties.
The father shall advise the mother in writing three months prior to the commencement of a school holiday period, if he seeks to spend time with [L] in accordance with Order 15. In the event that the mother has received no notice pursuant to this Order, the mother is entitled to make arrangements two months prior to the commencement of the school holiday period in which case [L] shall not spend time with the father during that holiday care period.
The time that [L] will spend with the father during the school holidays in accordance with Order 12(a) and (b) shall be as follows:
a.In 2013, when [L] will be in year K:
i.In week 1:
1.From 5pm to 6.30 pm on Monday facilitated by up to 2 people nominated by the mother;
2.From 9am to 5pm on Tuesday and Wednesday;
3.From 7pm Thursday to 4pm Friday;
ii.In week 2 :
1.From 9am to 5 pm on Monday, Tuesday and Wednesday;
2.From 5pm Friday to 3.00pm Sunday.
iii.In week 3 pursuant to 12b:
1.From 9am to 5 pm on Monday, Wednesday and Friday;
2.From 6pm Saturday to 3pm Sunday.
b.In 2014 when [L] will be in year 1:
i.In week 1:
1.From 5pm to 6.30 pm on Monday facilitated by up to 2 people nominated by the mother;
2.From 9am to 5pm on Tuesday and Wednesday;
3.From 5pm Thursday to 5pm Friday;
ii.In week 2:
1.From 9.00am to 5pm on Monday, Tuesday and Wednesday ;
2.From 5.00pm Friday to 9.00am Sunday.
iii.In week 3 pursuant to 12 b:
1.From 9am to 5 pm Tuesday and Wednesday;
2.From 5pm Friday to 9.00am Sunday.
c.In 2015 when [L] will be in year 2:
i.In week 1:
1.From 5pm to 6.30 pm on Monday facilitated by up to 2 people nominated by the mother;
2.From 9am to 5pm on Tuesday;
3.From 9.00am Thursday to 5pm Friday;
ii.In week 2
1.From 9.00am to 5.00pm on Monday and Tuesday
2.From 5.00pm Friday to 5.00pm Sunday
iii.In week 3 pursuant to 12b:
1.From 9am to 5 pm on Monday and Tuesday;
2.From 5pm Friday to 5pm Sunday.
d.In 2016 when [L] will be in year 3:
i.In week 1:
1.From 9am to 5pm on Monday and Tuesday;
2.From 6.00pm Wednesday to 5pm Friday;
ii.In week 2:
1.From 9am to 5 pm on Monday and Wednesday;
2.From 9.00am Friday to 5.00pm Sunday.
iii.In week 3 pursuant to 12b:
1.From 9.00am to 5.00pm on Tuesday
2.From 9.00am Thursday to 5.00pm Saturday
e.In 2017 when [L] will be in year 4:
i.In week 1:
1.From 9am to 5pm on Monday and Tuesday;
2.From 6.00pm Wednesday to 5pm Friday;
ii.In week 2:
1.From 9am to 5.00pm on Monday and Tuesday
2.From 6.00pm Thursday to 5.00pm Sunday;
iii.In week 3 pursuant to 12b:
1.From 9.00am – 5.00pm on Tuesday
2.9am Thursday to 5pm Saturday ;
f.In 2018, when [L] will be in year 5:
In Week 1
i.Monday from 9.00am -5.00pm
ii.Three consecutive nights commencing Tuesday at 5.00pm and concluding Friday at 5.00pm;
In Week 2
iii.Four consecutive nights commencing Wednesday at 5.00pm and concluding Sunday at 5.00pm;
In Week 3 pursuant to 12b:
iv.Four consecutive nights commencing Tuesday at 6.00pm and concluding Saturday at 5.00pm;
g.In 2019 when [L] will be in year 6:
In Week 1
i.Four consecutive nights commencing Monday at 6.00pm and concluding Thursday at 5.00pm;
In Week 2
ii.Five consecutive nights commencing Monday at 6.00pm and concluding Saturday at 5.00pm;
In Week 3 pursuant to 12b:
iii.Five consecutive nights commencing Tuesday at 6.00pm and concluding Sunday at 5.00pm;
h.In 2020, when [L] will be in Year 7:
In Week 1
i.Five consecutive nights commencing Monday at 6.00pm and concluding Friday at 5.00pm;
In Week 2
ii.Six consecutive nights commencing Monday at 6.00pm and concluding Sunday at 9.00am;
In Week 3 pursuant to 12b
iii.Five consecutive nights/Six days commencing Tuesday at 9.00am and concluding Sunday at 5.00pm;
i.In 2021, when [L] will be in year 8 and thereafter:
i.For 10 consecutive days in a 14 day mid-term school holiday period from 9am on the first day to 5pm on the last day.
ii.For 17 consecutive days in 21 day period, during the December/January holiday period.
The time that [L] will spend with the father in non school holiday periods in accordance with Orders 12(c) shall be as follows:
a.During the school week, each Monday and Wednesday afternoon from after school to 6pm incorporating any extra-curricular activities [L] may have;
b.From after school on Friday until Sunday morning at 9.00am in week 1;
c.From after school on Friday until Sunday afternoon at 5.00pm in week 2.
The father shall not leave [L] in the care of other individuals during any of the overnight times of the parenting time that he has with [L].
That [L] shall be with the mother on Mother’s Day and the mother’s birthday each year. If the mother’s birthday falls on a day that [L] is to spend time with the father, then [L] shall be with the mother from 10.00am to 7.00pm. or 3.00pm -6.00pm if during school term.
In the event that a care period falls on [L’s] birthday each party shall have a minimum of three hours each with [L] on that day.
That in 2020, [L] may spend time with the father for a period of ten consecutive days during the December/January school holiday care period per year in Los Angeles California pursuant to these Orders.
That in 2021, [L] may spend time with the father for a period of twelve consecutive days during the December/January school holiday care period per year in Los Angeles California pursuant to these Orders.
That in 2022 [deleted word] [L] may spend time with the father for a period of fourteen consecutive days during the December/January school holiday care period per year in Los Angeles, California pursuant to these Orders.
That in 2023, [L] may spend time with the father for a period of seventeen consecutive days during the December/January school holiday care period per year in Los Angeles, California pursuant to these Orders.
That in clause 19, 20 and 21 the time frame denotes the door to door period including travel time from the time [L] leaves Australia to the time [L] returns to Australia. Where there is an overseas visitation period, the care period must end on [L’s] return to Australia.
The prior to exercising a visitation period in Los Angeles the following conditions must be met :
a.That Consent Orders in the terms of these Orders have been filed in Los Angeles California and mirror orders issued pursuant to Order 6 herein;
b.That the father or mother accompany [L] on all flights to and from Australia and Los Angeles;
c.That the father pay for [L’s] airfare and that of the mother if she is the accompanying person;
d.That if the mother is the accompanying person, the father may for the mother’s accommodation, insurance, a per diem allowance and airport transfers.
e.That the father deposit [L’s] passport and his own passport at a nominated law firm of the mother in Los Angeles on the day of arrival in Los Angeles and collect the passports on the day of departure back to Australia.
f.That the father be restrained from removing [L] from Los Angeles California during a holiday care period without the express written consent of the mother;
g.That the father provide to the mother at least 28 days prior to [L’s] travel a copy of the air ticket and itinerary and provide the address and contact details of where [L] will be staying;
h.That the father add [L] to his United States health insurance coverage as a dependant to ensure that her coverage is pre-paid during the period [L] is in the United States and provide to the mother at least 28 days prior to [L’s] travel a copy of the policy covering [L]..
i.That the father provide security for the return of [L] to Australia by having an autonomous unconditional non-accessory bank guarantee for the amount of $ US 100,000 issued for the period of the visitation period plus 5 days so that if the child is not returned on the appointed day, barring an act of God, that within 48 hours of the appointed date, the Bank Guarantee can be executed by the mother. The bank guarantee to be issued by the father’s (principal’s )bank through a local bank guarantee in Australia (the Beneficiaries bank) in favour of the Beneficiary (the mother). As security the instructing bank (the principals bank) issues a counter guarantee in favour of a local bank entitling it a right to to submit a claim to the Instructing bank in the event of payment of claim. One week prior to the date of departure the father must show proof by sending a copy of the Bank Guarantee to the mother.
In the event that the father fails to return [L] to Australia pursuant to these Orders or should the father do any actual thing to cause the mother to fear at any time that the father does not propose to return [L] to Australia pursuant to these Orders, then the mother have leave to forthwith apply to the court for a payment from the solicitor’s trust account of the whole or part of the bond to cover all necessary airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the mother to have [L] returned to Australia pursuant to these Orders.
The parties acknowledge that Australia is the home State of the child, [L] and the habitual residence of the child for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Convention’).
The father acknowledges that when he has his visitation period in Los Angeles, California, a failure to return the child as required by the terms of this agreement at the end of such time, except with the express written consent of the other party, shall be a wrongful removal or retention of the child as defined in the Convention. That in the event that there is an illegal retention beyond the date of return according to the itinerary provided by him pursuant to Order 22(g) then the father hereby agrees that a judgment can be issued against him as a default judgment for illegal retention under the Hague Convention.
That the father forthwith do all acts and things and sign all documents to register [L’s] birth with the US Consulate in Sydney in order that [L] becomes an American citizen and thereafter, the mother and the father do all acts and things and sign all documents to request the issue of a US passport for [L] which shall be held by the mother upon its issue.
That in the event the father is spending time with [L] in Australia which coincides with a Jewish Holiday, then this Order 21 shall override all other orders herein. On Jewish Holidays, [L] shall remain with the mother on the Eve and First Day and every alternative day thereafter until the conclusion of the Jewish Holiday. Jewish Holidays commence 18 minutes prior to Sunset on the Eve of the Jewish Holiday and terminates on Sunset on the last day of the Jewish Holiday. For the purposes of this clause, Jewish Holidays are defined as Chanukah, LagbaOmer, Pesach, Purim, Rosh Hashana, Shemini Atzereth, Shavuoth, Simchat Torah, Succoth, Tisha Baav, Yom Kippur.
That for the purpose of facilitating changeover, the father will collect and return [L] to and from the mother’s residence at the beginning and end of each care period providing, however, that if either of the paternal grandparents are present in Australia, the father shall not attend the changeover and shall use his best endeavours to ensure that one of them effects the changeover with the mother instead of himself.
That the father maintain any regularly scheduled events while [L] spends time with him including religious observances, team sports, music, maths instructions and extra curricular activities.
That in the event that [L] is distressed or unwell during any care period, the father is to advise the mother immediately and return [L] to the mother. That in the event [L] requires any medical attention the father shall forthwith notify mother and return [L] to the mother.
That the father shall not take [L] to any medical professional including general practitioners, psychologists, psychiatrists, psychotherapists, therapists, or social workers, without the written consent of the mother, save in a medical emergency.
That the mother inform the father as soon as practicable about any serious medical issues affecting [L] and shall keep the father informed of her current treating doctors and shall authorize and direct [L’s] doctors to provide information to father upon his request.
That the mother shall keep the father informed of the pre school and school that [L] attends from time to time and shall authorize and direct such institutions to forward to the father such documents as the father shall request regarding [L].

Each parent shall keep the other informed of their primary residential address and telephone number.
That the father shall notify the mother of his address and contact telephone numbers for the location where [L] will be staying during each care period not later than 7 days prior to the commencement of any such care period and if his accommodation changes during a care period within 12 hours of such change.
That the mother may apply for a renewal of [L’s] Australian passport without the consent of the father and this Order shall signify consent to make and complete such application.
That when the father is not present in Australia, the mother facilitate [L] to call her father weekly via skype at a time convenient to both [L] and the father but where there is no agreement on Monday evenings between 6.00pm and 7.00pm. If Monday falls on a Jewish Holiday in either location where father and [L] are located, the call shall take place on the following day or the next available day when the Jewish Holiday has ended in both locations. The Father is to be responsible to continue paying for the skype account and for any computer equipment that is required in the future. The skype call duration shall be a maximum of twenty minutes and minimum of 4 minutes.
That the father be restrained from recording audio or video during any facilitated period, any changeover or skype communication with [L].
That the father be restrained from recording audio or video during or any time with [L] if the purpose and intention of such recording is for legal proceedings.
That the father be restrained from recording audio or video of the mother at any time.
That any audio or video recordings or pictures of [L] taken by the father or his family shall only be used by him for private purposes and not submitted as material for a future litigation advantage in Family Court proceedings or otherwise be published on the internet or other medium beyond the use of immediate family.
INTERIM ORDERS:
That the mother be permitted to travel with [L] outside of the Commonwealth of Australia to Israel from 23 March 2011 to 24 June 2011 notwithstanding that the consent of the father has not been obtained.
That [L’s] name be forthwith removed from the Airport Watch List and the Australian Federal Police are requested to give effect to this Order.

SCHEDULE PURSUANT TO THESE ORDERS

2011	Day
WEEK 1	Days	Visits	Times
Day 1	Monday	Visit 1	5.00-6.30pm
Day 2	Tuesday	Visit 2	8.30-12.30pm
Day 4	Thursday	Visit 3	8.30-12.30pm
Day 6	Saturday	Visit 4	9.00-5.00pm
WEEK 2
Day 8	Monday	Visit 5	6.00pm-9.00am on Day 9
Day 10	Wednesday	Visit 6	8.30-12.30pm
Day 12	Friday	Visit 7	9.00-5.00pm
Day 14	Sunday	Visit 9	6.00pm-9.00am on Day 15.
WEEK 3
Day 16	Tuesday	Visit 10	8.30-12.30pm
Day 18	Thursday	Visit 11	9.00-5.00pm
Day 20	Saturday	Visit 12	9.00-5.00pm
2012
Day 1	Monday	Visit 1	5.00-6.30pm
Day 2	Tuesday	Visit 2	8.30-12.30pm
Day 4	Thursday	Visit 3	9.00-5.00pm
Day 6	Saturday	Visit 4	9.00-5.00pm
WEEK 2
Day 8	Monday	Visit 5	6.00pm-12.pm on Day 9
Day 10	Wednesday	Visit 6	8.30-12.30pm
Day 12	Friday	Visit 7	6.00pm – 12 pm on Day 13
Day 14	Sunday	Visit 9	9.00-5.00pm
WEEK 3
Day 16	Tuesday	Visit 10	6.00pm – 12 pm on Day 17.
Day 18	Thursday	Visit 11	9.00-5.00pm
Day 20	Saturday	Visit 12	9.00-5.00pm
2013
Week 1
Day 1	Monday	Visit 1	5.00-6.30pm
Day 2	Tuesday	Visit 2	9.00-5.00pm
Day 3	Wednesday	Visit 3	9.00-5.00pm
Day 4	Thursday	Visit 4	7.00pm- 4.00pm Day 5
Day 5	Friday	Visit 4	4.00pm return
Day 6	Saturday
Day 7	Sunday
Week 2
Day 8	Monday	Visit 5	9.00-5.00pm
Day 9	Tuesday	Visit 6	9.00-5.00pm
Day 10	Wednesday	Visit 7	9.00-5.00pm
Day11	Thursday
Day 12	Friday	Visit 8	5.00pm – 3.00pm Day 13
Day 13	Saturday	Visit 8	----3.00pm
Day 14	Sunday
Week 3	Week 3 only applies during December/January holiday
Day 15	Monday	Visit 9	9.00-5.00pm
Day 16	Tuesday
Day 17	Wednesday	Visit 10	9.00-5.00pm
Day 18	Thursday
Day 19	Friday	Visit 11	9.00-5.00pm
Day 20	Saturday	Visit 12	6.00pm- 4.00pm
Day 21	Sunday	Visit 12	------4.00pm
2014
Week 1
Day 1	Monday	Visit 1	5.00pm -6.30pm
Day 2	Tuesday	Visit 2	9.00-5.00pm
Day 3	Wednesday	Visit 3	9.00-5.00pm
Day 4	Thursday	Visit 4	5.00pm -5.00pm day 5
Day 5	Friday	Visit 4	----------5.00pm
Day 6	Saturday
Day 7	Sunday
Week 2
Day 8	Monday	Visit 5	9.00-5.00pm
Day 9	Tuesday	Visit 6	9.00-5.00pm
Day 10	Wednesday	Visit 7	9.00-5.00pm
Day11	Thursday
Day 12	Friday	Visit 8	5..pm- 5.00pm Day 13
Day 13	Saturday	Visit 9	5pm – 9.00am Day 14
Day 14	Sunday	---------9.00am
Week 3	Week 3 only applies during December/January holiday
Day 15	Monday
Day 16	Tuesday	Visit 10	9.00am -5.00pm
Day 17	Wednesday	Visit 11	9.00am -5.00pm
Day 18	Thursday
Day 19	Friday	Visit 12	5pm – 5.00pm Day 20
Day 20	Saturday	Visit 13	5.00pm – 9.00am Day 21
Day 21	Sunday	---------9.00am
2015
Week 1
Day 1	Monday	Visit 1	5.00pm -6.30pm
Day 2	Tuesday	Visit 2	9.00-5.00pm
Day 3	Wednesday
Day 4	Thursday	Visit 3	9.00 am to 5.00pm -5.00pm day 5
Day 5	Friday	Visit 4	----------5.00pm
Day 6	Saturday
Day 7	Sunday
Week 2
Day 8	Monday	Visit 5	9.00-5.00pm
Day 9	Tuesday
Day 10	Wednesday	Visit 6	9.00-5.00pm
Day11	Thursday
Day 12	Friday	Visit 7	5..pm- 5.00pm Day 13
Day 13	Saturday	Visit 8	5pm – 5.00pm Day 14
Day 14	Sunday	Visit 9	---------5.00pm
Week 3	Week 3 only applies during December/January holiday
Day 15	Monday
Day 16	Tuesday	Visit 10	9.00am -5.00pm
Day 17	Wednesday	Visit 11	9.00am -5.00pm
Day 18	Thursday
Day 19	Friday	Visit 12	5pm – 5.00pm Day 20
Day 20	Saturday	Visit 13	5.00pm – 5.00pm Day 21
Day 21	Sunday	Visit 14	---------5.00pm
2016
Day 1	Monday	Visit 1	9.00-5.00pm
Day 2	Tuesday	Visit 2	9.00-5.00pm
Day 3	Wednesday	Visit 3	6.00pm- 5.00pm day 4
Day 4	Thursday	Visit 4	5.00pm -5.00pm day 5
Day 5	Friday	Visit 4	----------5.00pm
Day 6	Saturday
Day 7	Sunday
Week 2
Day 8	Monday	Visit 5	9.00-5.00pm
Day 9	Tuesday
Day 10	Wednesday	Visit 6	9.00-5.00pm
Day11	Thursday
Day 12	Friday	Visit 7	9.00am- 5.00pm Day 13
Day 13	Saturday	Visit 8	5pm – 5.00pm Day 14
Day 14	Sunday	Visit 9	---------5.00pm
Week 3	Week 3 only applies during December/January holiday
Day 15	Monday
Day 16	Tuesday	Visit 10	9.00am -5.00pm
Day 17	Wednesday
Day 18	Thursday	Visit `11	9.00am – Day 19
Day 19	Friday	Visit 12	Day 19- Day 20
Day 20	Saturday	Visit 13	5.00pm Saturday
2017
Day 1	Monday	Visit 1	9.00-5.00pm
Day 2	Tuesday	Visit 2	9.00-5.00pm
Day 3	Wednesday	Visit 3	6.00pm- 5.00pm day 4
Day 4	Thursday	Visit 4	5.00pm -5.00pm day 5
Day 5	Friday	Visit 4	----------5.00pm
Day 6	Saturday
Day 7	Sunday
Week 2
Day 8	Monday	Visit 5	9.00-5.00pm
Day 9	Tuesday	Visit 6	9.00-5.00pm
Day 10	Wednesday
Day11	Thursday	Visit 7	6.00pm – Day 12
Day 12	Friday	Visit 8	Day 12-Day 13
Day 13	Saturday	Visit 9	Day 13- Day 14
Day 14	Sunday	Visit 10	---------5.00pm
Week 3	Week 3 only applies during December/January holiday
Day 15	Monday
Day 16	Tuesday	Visit 11	9.00am -5.00pm
Day 17	Wednesday
Day 18	Thursday	Visit `12	9.00am – Day 19
Day 19	Friday	Visit 13	Day 19- Day 20
Day 20	Saturday	Visit 14	5.00pm Saturday
2018
Day 1	Monday	Visit 1	9.00-5.00pm
Day 2	Tuesday	Visit 2	Day 2- Day 3
Day 3	Wednesday	Visit 3	Day 3- Day 4
Day 4	Thursday	Visit 4	Day 4- Day 5
Day 5	Friday	Visit 4	------5.00pm
Day 6	Saturday
Day 7	Sunday
Week 2
Day 8	Monday	Visit 5	9.00-5.00pm
Day 9	Tuesday
Day 10	Wednesday	Visit 6	6.00-pm to Day 11
Day11	Thursday	Visit 7	Day 11- Day 12
Day 12	Friday	Visit 8	Day 12-Day 13
Day 13	Saturday	Visit 9	Day 13 – Day 14
Day 14	Sunday	Visit 10	---------5.00pm
Week 3	Week 3 only applies during December/January holiday
Day 15	Monday
Day 16	Tuesday	Visit 11	6.00pm –Day 17
Day 17	Wednesday	Visit 12	Day 17-Day 18
Day 18	Thursday	Visit 13	Day 18 – Day 19
Day 19	Friday	Visit 14	Day 19- Day 20
Day 20	Saturday	Visit 15	--------5.00pm
2019
Week 1
Day 1-Day 5	Monday-Thursday	Visit 1-Visit 4	6.00pm Monday - 5.00pm Thursday
Week 2
Day 8 –Day 13	Monday-Saturday	Visit 5-Visit 10	6.00pm Monday – 5.00pm Saturday
Week 3	Week 3 only applies during December/January holiday
Day 16-Day 21	Tuesday-Sunday	Visit 13-Visit 18	6.00pm Tuesday- 5.00pm Sunday
2020
Week 1
Day 1-Day 5	Monday-Friday	Visit 1-Visit 5	6.00pm Monday-5.00pm Friday
Week 2
Day 8-Day 14	Monday-Sunday	Visit 6-Visit 12	6.00pm Monday-9.00am Sunday
Week 3	Week 3 only applies during December/January holiday
Day 16 –Day 21	Tuesday-Sunday	Visit 14-Visit 21	9.00 am Tuesday-5.00pm Sunday

[2011] FamCA 141

28 February 2011

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Remedies

Procedural Fairness

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