Angeli & Farina - [2020] FamCA 975

FAMILY COURT OF AUSTRALIA
Angeli & Farina [2020] FamCA 975

File number(s): SYC 5377 of 2019

Judgment of: MCCLELLAND DCJ

Date of judgment: 23 November 2020

Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Relocation – Where the parties and child relocated from the United States to Australia in 2019 – Where subsequently the parties have separated on a final basis – Where the mother seeks to relocate back to the United States with the child on an interim basis – Where the father and Independent Children’ Lawyer oppose the mother’s Application – Where the mother suffers from a depressive anxiety condition – Where both parties make allegations of the other engaging in family violence – Where the Court noted such factual dispute cannot be resolved in interim proceedings – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII, s 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Cases cited:
Attwill & Marden [2018] FCCA 1401

B & L [2003] FamCA 1512

Babcock & Waddell [2019] FamCAFC 129

Banks & Banks (2015) FLC 93–637)

C & S [1998] FamCA 66

Champness & Hanson (2009) FLC 93-407

Cowling v Cowling (1998) FLC 92-801

D & H [1998] FamCA 1487

G & G [2003] FamCA 478

Godfrey & Sanders (2007) 208 FLR 287

Goode and Goode (2006) FLC 93-286

M & S (2007) FLC 93-313

Masson v Parsons (2019) 368 ALR 583

Mazorski & Albright (2007) 37 Fam LR 518

Morgan and Miles (2007) FLC 93-343

O v S FC Palmerston North FAM 2003-054-000859, 21 January 2005

Sigley v Evor (2011) 44 Fam LR 439

SS & AH [2010] FamCAFC 13

T & J [2006] FamCA 145).

T & T & Child Representative [2000] FamCA 1812

Number of paragraphs: 139

Date of hearing: 5 November 2020

Place: Sydney by web conference

Counsel for the Applicant: Mr Sweeney

Solicitor for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Mr Cummings SC

Solicitor for the Respondent: Lander & Rogers (Sydney)

Solicitor for the Independent Children's Lawyer: Ms Kelso of Legal Aid NSW Sydney Central Family Law
ORDERS

SYC 5377 of 2019

BETWEEN:
MR ANGELI

Applicant

AND:
MS FARINA

Respondent

LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

23 NOVEMBER 2020

THE COURT ORDERS THAT:
1.The Application in a Case sealed 29 October 2020 filed 23 October 2020 is dismissed.
2.The matter be listed for a final hearing at the earliest opportunity.
3.Leave is granted to the Independent Children’s Lawyer to issue such subpoenas as the Independent Children’s Lawyer deems appropriate and as may be reasonably requested of the Independent Children’s Lawyer by either of the parties.

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

This matter concerns an Application in a Case filed 23 October 2020 for parenting orders in respect to the child, Z (“the child”) born in 2011, including for the child to relocate with Ms Farina (“the mother”) to City A, B State in the United States of America (“the USA”).
The parties, the mother and Mr Angeli (“the father”), and the child moved to Australia from City A, USA, in 2019. The father arrived in Australia in January 2019 and the mother and the child arrived in July 2019. The parties separated within approximately six (6) weeks of the mother arriving in Australia. The mother contends that the father deceived her into coming to Australia in circumstances where he had not disclosed to her that he was aware that she had formed another relationship and in circumstances where she contends he had not disclosed to her that his employment as an educator was one of unsecured rather than secured tenure.
The mother further contends that, as a result of a number of issues, including the father’s conduct and, most relevantly, feeling a sense of isolation in Australia, she has developed a depressive anxiety condition of such significance that it justifies an order being made for her to relocate with the child back to the USA.
The mother contends that, in circumstances where she was deceived into coming to Australia, the Court should not approach this matter from the perspective of an interim relocation case but rather from the perspective that, but for the father’s deception, the mother would not have moved to Australia and the dispute between the parties would have been dealt with by a court in the USA.
Comparatively, the father rejects the mother’s contention that he deceived her into coming to Australia but, to the contrary, he asserts that she willingly came for a changed lifestyle. The father contends that, while he was aware of the mother’s other relationship before she arrived in Australia, it was his hope and wish that the parties would be able to resolve tensions in their marriage upon the mother’s arrival in Australia with the child. The father contends that his preparedness to participate in relationship counselling shortly after the mother’s arrival in Australia is consistent with that stated intention.
The father further disputes that he deceived the mother regarding the nature of his employment as an educator in Australia and that he does in fact have secured tenure. The father further rejects the mother’s contentions that he has engaged in coercive and controlling behaviour and he contends that it would not be in the best interests of the child for orders to be made which permit the mother to relocate to the USA with the child.
The Independent Children’s Lawyer (“the ICL”) contends that the issues in these proceedings are of such complexity that they cannot reasonably be dealt with in the context of an interim hearing and that the mother’s Application to relocate to the USA on an interim basis should be rejected.
During the course of the proceedings, I raised with the parties my concerns regarding the lack of information regarding the extent to which the presence of the COVID-19 virus in the USA and the consequent demands that it has made upon the USA’s health system may present a risk to the child. In that context, I raised the Court’s concerns regarding the potential for the child to be exposed to the virus when travelling from Australia to City A where it is proposed that he would live with the mother. That travel would necessarily result in the mother and the child having to interact with airport staff, including security staff and flight attendants, as well as other passengers in the relatively close confines of an aircraft. The concerns include the fact that the mother and the child would be required to undertake a connecting flight once they arrive at an international airport in the USA.
Senior counsel for the father contends that, at this interim stage of the proceedings, the Court is without sufficient information to determine the extent of the risk of the child contracting COVID-19 during the course of travel and, if that occurred, the extent to which the mother would be able to access appropriate health treatment. The father contends that the Court’s inability to determine the extent of risk and, hence, whether it presented an unacceptable risk of harm to the child was a further reason why the Court should decline to accede to the mother’s interim Application to relocate.
EVIDENCE
The mother relies upon the following documents:
(a)Application in a Case filed on 23 October 2020 sealed 29 October 2020;
(b)Affidavit of the mother filed 23 October 2020 including annexures;
(c)Affidavit of Dr C filed 29 October 2020; and
(d)Single Expert Report of Dr D dated 29 November 2019.
The father relies upon the following documents:
(a)Proposed Minute of Order;
(b)Notice of Risk filed 15 August 2019; and
(c)Affidavit of the father filed 4 November 2020 and annexures.
The ICL relies upon the following documents:
(a)Single Expert Report of Dr D dated 29 November 2019.
APPROACH AND THE LAW – CONCEPTS AND PRINCIPLES
This Court has, on a number of occasions, acknowledged the difficulties of determining cases concerning the potential relocation of a parent and a child in interim proceedings.
In Morgan and Miles (2007) FLC 93-343 (“Morgan”) at [84], Boland J said:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing or, now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
The decision of the Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. At [81]-[82], under the subheading “How should interim proceedings be conducted?”, the Full Court said:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Cowling v Cowling (1998) FLC 92-801 (“Cowling”) at [18], the Full Court said:
… The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Significantly, in Masson v Parsons (2019) 368 ALR 583 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that:
Subdivision B of Div 1 of Pt VII [of the Act], which is headed “[o]bject, principles and outline”, provides, inter alia, in s 60B(1) that the objects of Pt VII include “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
(Emphasis in original)
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act ) (Emphasis added). Those rights include:
·The right “to know and be cared for by both their parents”(s 60B(2)(a) of the Act);
·The right “to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)” (s 60B(2)(b) of the Act); and
·The right to “maintain personal relations and direct contact with both parents on a regular basis” (s 60CC(3)(e) of the Act).
Section 60B(4) of the Act provides that an additional object of Pt VII “is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”. In O v S FC Palmerston North FAM 2003-054-000859, 21 January 2005 at [38], it was noted that:
…cases have generally referred to Article 9.3 of the Convention which provides “states parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests”. Article 9 cannot however, be looked at in isolation by reason of interactions with Articles 7 & 18 of the Convention. The UNICEF "Implementation Handbook for the Convention on the Rights of the Child" 2002 Edition states at page 250 that “This [Article 9.3] together with Article 7 (Child's Right to Know and be Cared for by Parents) and Article 18, implies that the law should presume that, unless it is proved to the contrary, the continued involvement of both parents in the child's life is in his or her best interests”
COMPETING PROPOSALS OF THE PARTIES
Orders sought by the mother
By Application in a Case filed on 23 October 2020, the mother seeks the following orders:
1. That the Applicant Mother be granted leave for short service of this Application.
2. That the Application in a Case be listed on an urgent basis as soon as the Court can accommodate.
3. That the Mother be permitted to relocate with the Child, Z born on … 2011 (Z) to City A, B State in the United States of America (USA) as soon as possible.
4. Z live with the Mother.
5. Until such time as both parents, and Z, have received a Covid19 vaccine and/or international travel restrictions in Australia have been lifted, Z spend time with the Father by agreement between the parties and failing agreement as follows:
5.1 In the USA (including Hawaii):
5.1.1 For 4 consecutive weeks during the US Summer break when:
(a) All changeovers will take place in City A;
(b) In 2021, the Father will give the Mother at least 12 weeks' notice in writing of the nominated dates, and in subsequent years, the Father will communicate his nominated weeks to the Mother in writing by no later than 1 February;
(c) At the Father's discretion, the block period may include Z's birthday in odd numbered years; and
(d) Z will be returned to the Mother by no later than 24 hours prior to commencement of school term in August.
5.1.2 During the US Spring break in odd numbered years when:
(a) All changeovers will take place in City A;
(b) The Father will give the Mother at least 8 weeks' notice in writing of the nominated dates;
(c) Z will return to the Mother's care by no later than 24 hours prior to the commencement of the school term; and
(d) For the purpose of this Order, the US spring break usually occurs in the first full week of April each year.
5.1.3 During the Christmas school holiday period in even numbered years when:
(a) All changeovers will take place in City A;
(b) The Father will give the Mother at least 8 weeks' notice in writing of the nominated dates;
(c) Z will return to the Mother's care by no later than 24 hours prior to the commencement of the school term in January; and
(d) For the purpose of this Order, the Christmas school holiday period in the USA usually covers a 2-week period from around 20 December to 5 January.
5.2 In City A, during school terms, by agreement between the parties, and failing agreement for up to 10 weeks per calendar year provided that:
5.2.1 The Father gives the Mother at least 8 weeks' notice in writing of the nominated dates;
5.2.2 Each block period consists of no more than 28 consecutive days and is separated by a period of at least 7 nights before Z spends any additional time with the Father pursuant to these Orders;
5.2.3 The nominated time occurs during Z's school term including weekends, and does not take place during any other holiday or school free days (including long weekends) unless otherwise agreed between the parties.
5.3 As otherwise agreed between the parties.
6. For the purpose of this Order, international travel restrictions in Australia will be considered “lifted” when both outbound and inbound travel resumes, free of restrictions. Specifically:
6.1 travellers leaving Australia will be able to do so without requiring an exemption to leave; and
6.2 arrival caps are no longer in effect; and
6.3 quarantine for inbound passengers (whether in a hotel, government facility or at home) is no longer mandatory.
7. After both parents, and Z, have received a Covid19 vaccine and/or international travel restrictions in Australia have been lifted, Z spend time with the Father by agreement between the parties, and failing agreement as follows:
7.1 In Australia (or in the USA if elected by the Father), as follows:
7.1.1 During the Christmas school holiday period in even numbered years when:
(a) The Father will give the Mother at least 8 weeks' notice in writing of the nominated dates;
(b) Z will return to the Mother by no later than 24 hours prior to the commencement of the school term in January; and
(c) For the purpose of this Order, the Christmas school holiday period in the
USA covers a 2-week period from around 20 December to 5 January.
7.1.2 During the US summer break as follows:
(a) For Z's first trip to Australia during the US summer break, for no more than four consecutive weeks;
(b) For Z's second trip to Australia during the US summer break, for no more than five consecutive weeks;
(c) For Z's third trip to Australia during the US summer break, and thereafter, for no more than six consecutive weeks;
(d) For the purpose of this Order:
(i) In odd numbered years, the Father will nominate the weeks Z spends time with him and communicate his nominated weeks to the Mother in writing by no later than 1 February provided that:
(1) His nominated dates do not prevent Z spending a minimum of four consecutive weeks with the Mother during the US summer break;
(2) At the Father's discretion, this block period may include Z's birthday in odd numbered years; and
(3) Z is returned to the Mother's care by no later than 24 hours prior to the commencement of school term in August.
(ii) In even numbered years, the Mother will nominate four weeks which Z will spend with her and will communicate her nominated wees to the Father in writing by no later than 1 February; the Father will thereafter nominate the time Z spends with him pursuant to Orders 7.1.2(a), (b) or (c) and communicate his nominated weeks to the Mother in writing by 15 February;
(iii) The US summer break usually occurs between late May and early/mid-August each year;
7.1.3 During the US spring break in odd numbered years when:
(a) The Father will give the Mother at least 8 weeks' notice in writing of the nominated dates;
(b) Z will return to the Mother's care by no later than 24 hours prior to the commencement of the school term;
(c) Z may commence his time with the Father up to one week before the last day of term prior to the US spring break (unless the Father elects for the time to occur in the USA when the time will commence after school on the last day of term); and
(d) For the purpose of this Order, the US spring break usually occurs in the first full week of April each, and Z will be required to miss 5 days of school each alternate year to accommodate the long flight times in the event the Father elects for the time to occur in Australia.
7.1.4 Such other times as agreed between the parties.
7.2 In City A during school terms, by agreement between the parties, and failing agreement for up to 10 weeks per calendar year provided that:
7.2.1 The Father gives the Mother at least 8 weeks' notice in writing of the nominated dates;
7.2.2 Each block period consists of no more than 28 consecutive days and is separated by a period of at least 7 nights before Z spends any additional time with the Father pursuant to these Orders;
7.2.3 The nominated time occurs during Z's school term including weekends, and does not take place during any other holiday or school free days (including long weekends) unless otherwise agreed between the parties.
8. Whilst the Father remains living in Australia, Z's travel expenses be shared between the parties as follows:
8.1 The Mother be responsible for making travel arrangements and meeting the costs for Z's airfare to the international airport closest to the Father's residence in Australia during the US summer break each year, when the Mother will provide a copy of Z's travel itinerary to the Father by no later than 28 days prior to the commencement of the time. If the Father elects to spend the summer break with Z in the USA, including Hawaii (the nominated destination) the Mother be responsible for making arrangements and meeting the costs of Z's travel to the international airport closest to the nominated destination;
8.2 The Father be responsible for making arrangements and meeting the costs for Z's airfare to Australia during the Christmas school holiday period (during even numbered years) and the US spring break (during odd numbered years), when the Father will provide a copy of Z's travel itinerary to the Mother by no later than 28 days prior to the commencement of each period of time.
9. Until Z has attained the age of 15 years, Z must travel with a parent, or be accompanied by a third party nominated by that parent and known to Z or participate in the relevant airline's "unaccompanied minor program" with the costs associated with the travel, including the "unaccompanied minor program", being met by the parent otherwise responsible for Z's airfare pursuant to Order 8.
10. The Mother shall ensure that Z’s American and Country E passports remain valid and for this purpose:
10.1 The Mother shall begin the application procedure for their renewal 12 months prior to their expiration;
10.2 The Father shall provide all duly completed and signed paperwork to the Mother promptly and no later than 9 months prior to the passports’ expiration dates.
11. The Father be responsible for making arrangements and meeting the costs of Z’s travel visas to Australia at all times.
12. The Father will provide a copy of Z's Australian travel visa to the Mother by no later than 28 days prior to the commencement of the time.
13. Unless otherwise agreed, in the event Z is spending time with the Father in City A, changeover take place as agreed between the parties and failing agreement at Z's school if time is to commence/conclude at school or otherwise at the Mother's residence.
14. The Mother will do all things necessary to facilitate Z having communication with the Father by way of Facetime or Skype, and if Facetime or Skype are not reasonably available, by telephone or other electronic communication for up to thirty (30) minutes on no less than four days each week at such times as agreed between the parties, and failing agreement each Sunday, Monday, Wednesday and Friday during the period between 5.30pm and 7.30pm City A time, and for that purpose:
14.1 Both parties shall do all things necessary to ensure each has in place the necessary technology to enable Facetime or Skype communication between Z and the Father; and
14.2 The Mother allow Z a space within her residence so that communication between Z and the Father can occur without interruption.
15. During school break periods when Z is spending time with the Father, the Father facilitate Z having communication with the Mother by way of Facetime or Skype, and if Facetime or Skype are not reasonably available, by telephone or other electronic communication for up to 30 minutes on no less than three days each week at such times as agreed between the parties, and failing agreement each Sunday, Wednesday and Friday between 7.30am and 9am (Sydney time) or 8pm and 8.30pm (Sydney time) during the US summer break period when:
15.1 Both parties shall do all things necessary to ensure each has in place the necessary technology to enable Skype or Facetime communication between Z and the Mother; and
15.2 The Father allow Z a space within his residence so that communication between Z and the Mother can occur without interruption.
16. Z be permitted to call or Facetime either parent at his request at any reasonable time and for this purpose, the parent with whom Z is with shall facilitate and positively encourage such communication taking place.
17. Each party keep the other party advised at all times of his/her residential address, the names of other people residing at this address, contact telephone number and Skype/FaceTime details by which Z may communicate with either parent.
18. That the parties shall ensure that the other parent is advised promptly of all medical emergencies or significant illnesses suffered by Z, whilst in that party's care including providing to the other parent sufficient details to enable both parties to be consulted and advised with respect to such illnesses and/or conditions and any treatment recommended or provided.
19. The Mother authorise:
19.1 Any medical practitioner upon which Z may attend from time to time, to communicate with the Father in respect to Z's medical condition and/or requirements, and
19.2 Any school (including any extracurricular activity) at which Z may attend from time to time to:
19.2.1 Provide the father copies of all school reports, school notices and school photographs in relation to Z; and
19.2.2 Communicate with the father, either by telephone, in writing or other electronic means in respect to Z's progress at his school.
20. The Father authorise any medical practitioner upon which Z may attend while visiting the Father in Australia to communicate with the Mother in respect to Z's medical condition and/or requirements as they may arise, and the Father meet the costs associated with same.
21. Each party be restrained from:
21.1 Denigrating the other parent, or any member of the other parent’s family (which shall include any partner of the parent and the partner's relatives), in the presence and/or hearing of Z, and each parent do all acts and things necessary to prevent any third party from denigrating the other parent or any member of the other parent’s family in the presence and/or hearing of Z;
21.2 Discussing these proceedings, including the contents of any document filed by or on behalf of either parent, with Z; and
21.3 Showing Z any documents filed by or on behalf of either parent.
22. The Father be restrained from:
22.1 Permitting Z to access his personal computer or allowing Z to access any electronic device on which Z may inadvertently be exposed to pornography;
22.2 Having a shower with Z; and
22.3 Accompanying Z into the toilet area.
Orders sought by the father

The father seeks that orders be made in accordance with his proposed Minute of Order, set out as follows:
1. That the Child of the marriage namely Z born … 2011 (Z) live with the Respondent Father during the school holidays as follows:
1.1 For the Term 4 school holidays in 2020/2021:
(a) 9am Friday 4 December – 9am Friday 11 December
(b) 9am Friday 18 December until 9am Friday 25 December
(c) 5pm Friday 1 January until 9am Friday 8 January
(d) 9am Friday 15 January until 9am Friday 22 January
1.2 For the first half of all Term school holidays commencing Term 1 2021;
2. During any period the mother is overseas Z will live with the Father.
3. If the mother is overseas for a duration of longer than 3 weeks Z will live with the father and spend time with the mother when she returns to Sydney, Australia as follows;
a) A block period of 7 days, commencing 3pm or conclusion of school on the first day and concluding at 3pm or at the conclusion of school on the last day;
b) During school terms on a two week cycle as follows;
i) In Week 1 from after school on Friday until the commencement of school on Monday and each alternate week thereafter; and
ii) In Week 2 from after school on Thursday until the commencement of school on Friday and each alternate week thereafter
c) For the second half of all Term school holidays commencing Term 1 2021;
4. To give effect to Order 3 the mother will give the father 14 days’ notice of the dates upon which she will be available to commence time with Z.
5. To give effect to Order 3 (b), Week 1 will be the second week of each school term and week 2 will be the first week of each school term.
6. Order 3 (a) and (b) shall be suspended during school holiday periods
7. To give effect to Order 3 all changeovers not at school shall occur by the father delivering Z to the mother at the commencement of her time and the mother returning Z to the father at the conclusion of her time.
8. During all periods the Mother is overseas or otherwise unavailable and Z is living with the Father;
8.1 the Father will do all things to facilitate Z’s time with the Mother at all reasonable times via Face Time call , WhatsApp and other digital platforms the parties may agree;
8.2 The Father will keep the Mother informed of Z’s residential address and his mobile phone number and contact details;
8.3 The Father will keep the Mother informed weekly via email of Z’s health, welfare and progress at school.
Storage container
9. That the Mother and the Father will divide and collect the contents of the Storage Container (including Z’s personal effects and excluding the parties personal effects and the piano) by agreement and failing agreement by adopting A & B List Method.
10. For the purpose of the preparation of the A & B List the Mother will prepare same within 14 days of the date of these Orders and submit to the Father and the Father will select one of those lists submitted to him by the Mother within 14 days thereafter.
11. That within 7 days of the parties reaching agreement in writing about the list of items prepared by the mother and the list selected by the father ,each party may collect from the storage container the items on the list they will receive and their personal effects. The father is also entitled to collect and receive the piano.
Costs
12. That the Applicant Mother pay the Respondent Father costs of an incidental to this Application in a Case.
Orders sought by the ICL
The ICL seeks that orders be made in accordance with those set out in their case outline document as follows:
1. The Mother’s Application in a case be dismissed.
2. The matter be listed for a Final Hearing at the earliest opportunity.
3. Leave is granted to the Independent Children’s Lawyer to issue subpoenas.
PARTIES’ CONTENTIONS AND AGREED OR OBJECTIVELY VERIFIABLE FACTS
In 1978, the father was born. He is aged 42 years.
In 1979, the mother was born. She is aged 41 years.
In 2003, the parties married in Europe.
In 2010, the parties commenced living in City A, B State in the USA.
In 2011, the child was born. He is currently aged nine (9) years. At this time, the mother ceased working as an investment banker.
In September 2017, the parties’ became citizens of the USA.
In July 2018, the parties first travelled to Australia for a period of three (3) weeks to, as the father contends, explore job opportunities for himself and the prospect of the parties and child relocating to Australia.
In October 2018, the father accepted an offer of employment as an educator with the G Organisation.
On 15 January 2019, the father moved to Australia and commenced employment with the G Organisation. The mother and the child remained living in the USA.
In late March 2019, the mother and child travelled to Australia to visit the father and spent approximately two (2) weeks in Australia.
In April 2019, the mother and the child travelled to Australia to visit the father and spent approximately two (2) weeks in Australia. The father, the mother and the child were all granted permanent residency at or about this time.
In June 2019, whilst the mother and child were travelling in Europe, the father “found emails between his wife [the mother] and Ms H” which the father construed as suggesting the two were in a romantic relationship: Dr D’s Single Expert Report dated 29 November 2020 at page 15. It is undisputed that the mother has formed a relationship with Ms H (“the mother’s current partner”) who currently lives in City A, B State in the USA.
On 2 July 2019, the mother and the child arrived in Australia to live with the father.
On 1 August 2019, the parties attended counselling with J Service. They attended for three (3) sessions together and, subsequently, the father continued to attend some sessions on his own.
On 15 August 2019, the mother contends that the parties separated on a final basis and, shortly after, on the same day, the father commenced proceedings in the Federal Circuit Court of Australia.
In August 2019, the maternal grandparents arrived in Australia to support the mother. The maternal grandparents lived in Europe.
On 16 October 2019, Judge Boyle of the Federal Circuit Court of Australia made the following Orders:
THE COURT ORDERS THAT:
1.The proceedings are transferred to the Family Court of Australia at Sydney and are listed for directions before a Registrar on 20 November 2019 at 10:30am.
2.Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the child Z born … 2011.
3.The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.
4.The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.
5.Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
6.The Mother and Father facilitate the attendance upon his/her representative of the child at times and dates requested by that representative.
THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:
7.Z spend time with the Husband as follows:
a.   During school term time:
i.Every Monday to Friday from 7.30am. when the Husband will collect Z and deliver him to school;
ii.Every alternate Saturday commencing 19 October 2019 from 10.00am Saturday to 1.00pm Sunday and each alternate Saturday thereafter; and
iii.Every second Wednesday commencing 23 October 2019 from after school until 7pm. when the Husband will assist Z with his homework and give him dinner before returning him home.
b.   At such other times as agreed in writing between the parties.
8.Except when time is to commence "from after school" or conclude by delivery "to school", changeover take place at the entrance to the Wife's building.
9.Notwithstanding any other order, Z spend time with the Husband on the following special days:
a.   From 9.00a.m. until 5.00p.m. on Father's day each year;
b.   On Z's birthday from after school until 6.00p.m. in the event the birthday falls on a school day, when the Husband will collect Z from school at the commencement of the time and return Z to the Wife's residence at the conclusion of the time, and from 9.00a.m. until 1.00p.m. in the event the birthday falls on a non-school day.
10.Z be at liberty to telephone either parent at any reasonable time when the other parent shall do all acts and things necessary to facilitate, positively encourage and not hinder Z speaking with the other parent by telephone.
11.The Father be restrained, on a without admissions basis from:
a.   Permitting Z access to his personal computer or allowing Z to access any electronic device on which Z may inadvertently be exposed to pornography;
b.   Accompanying Z into the toilet area; and
c.   Having a shower with Z.
12.Each party be restrained from:
a.   Denigrating the other parent, Z or any member of the other parent's family, in the presence and/or hearing of Z, and each parent do all acts and things necessary to prevent any third party from denigrating the other parent or any member of the other parent's family in the presence and/or hearing of Z;
b.   Discussing these proceedings, including the contents of any document filed by or on behalf of either parent, with Z;
c.   Showing Z any document filed by or on behalf of either parent.
Appointment of Single Expert
13.That Dr D be appointed as the Court Expert in these proceedings pursuant to Part 15.5 of the Family Law Rules to provide a report in respect of Z.
14.That such report shall deal with the following matters relevant to these proceedings:
a.   The benefit of Z having a meaningful relationship with both of his parents;
b.   The proposed return of the Wife and Z to City A, B State, USA.
c.   Any views expressed by the child and any factors that would affect the weight that the Court should place on those views.
d.   The nature of the relationship between the child with each of the child's parents and with significant other persons (including grandparents or other relatives).
e.   The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and other parent.
f.    The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i.Either of the parents; or
ii.Any other child, or other person, (including grandparent or other relative) with whom the child has been living.
g.   The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
h.   The capacity of:
i.Each parent; and
ii.Any other person, (including any grandparent or other relative) to provide for the needs of the child including emotional and intellectual needs.
i.    The maturity, sex, lifestyle and background of the child and of either of the parents and any other characteristics of the child that the Court Expert thinks are relevant.
j.    The attitude to the child and to the responsibilities or parenthood demonstrated by each of the parents.
k.   Any family violence involving the child or a member of the child's family.
l.    Any further matter that related to the care welfare or development of the child.
15.Noting the date of 7 November 2019 has been reserved for interviews, that in order to facilitate preparation of the report referred to in the preceding order:
a.   The parties each provide the Court Expert with copies of documents filed on their behalf in these proceedings within fourteen (14) days;
b.   Each of the parties is to attend upon the Court Expert for such interviews and observation sessions as the expert requires at any reasonable time nominated by the Court Expert.
c.   The Mother is to ensure the attendance of Z at such interviews or observation sessions and as such times and places as the Court Expert reasonably requires.
16.That the parties equally meet the costs of the Court Expert.
17.The mother to file and serve an Affidavit by the maternal grandmother by 1 November 2019 and the father may respond via Affidavit by 6 November 2019.
18.That the father file and serve an amended application addressing financial orders, and any Affidavit and Financial Statement by 27 November 2019.
19.The Court Notes that:
a.   The father may not be able to drive Z to school every day as provided by Order 7.a.i in which event the father will give to the mother notice by text message or email by 5.00pm the previous day.
b.   The interim parenting orders herein are intended to put in place arrangements for Z only until the parties' competing applications for interim orders are dealt with by the Court.
Family Law Watch List Orders
20.That the Mother, MS FARINA (date of birth …1979), their servants and/or agents be and are hereby restrained by injunctions, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child Z, born … 2011 from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australia Federal police give effect to this order by placing the name of Z, born … 2011 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the Court orders its removal.
21.That each party be restrained from selling, disposing of or encumbering any property currently existing other than to draw funds from bank accounts to meet ordinary costs of living, without giving to the other party 21 days' notice in writing of his or her intention to do so, with the exception that the husband may pay accrued credit card debt from funds in bank accounts.
22.That without admission the Husband will not charge credit cards in the wife's name.
23.That on Saturday 19 October 2019 the husband shall provide to the wife via the maternal grandmother her American Express Card, in the event that he locates it.
Both parties acknowledge that the mother suffers from a depressive anxiety condition. The mother contends that condition is situational and that she suffers from depression and anxiety as a result of living in Australia in circumstances where she contends she has been the subject of coercive and controlling conduct by the father and in circumstances where she is isolated from her friends and support network that was available to her when the parties lived in City A, USA.
Comparatively, the father contends that the mother has suffered depression and anxiety throughout their relationship and there is no assurance that the condition will improve if she returns to the USA. He contends, in those circumstances, that he would not be available to the child as a counter foil to the mother’s depression and anxiety.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
…
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including that each has engaged in conduct that would constitute family violence as defined in s 4AB of the Act. In those circumstances, it is not appropriate for the presumption of equal shared parental responsibility to apply at this stage of the proceedings.
Accordingly, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply.
The Court is, therefore, at large in making orders that it considers to be in the best interests of the children in the context of the issues raised in these interim proceedings.
DETERMINING WHAT IS IN THE BEST INTERESTS OF THE CHILD
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
In Sigley v Evor (2011) 44 Fam LR 439 (“Sigley v Evor”) at [132], the Full Court, quoting Brown J in Mazorski v Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
It is important to appreciate that the legislative requirement is for the Court to consider making an order to promote the child having a “meaningful” rather than “optimal” relationship with both parents: Champness & Hanson (2009) FLC 93-407 at 83,502. In other words, a relationship may be less than optimal but nonetheless meaningful: Godfrey & Sanders (2007) 208 FLR 287 (“Godfrey”) at [33], [36]; Sigley v Evor (supra) at [182]. Moreover, the consideration of how a “meaningful relationship” is defined needs to be determined in the circumstances of each case: Godfrey (supra) at [36]; M & S (2007) FLC 93-313 at 81,387.
Both parents acknowledge that it is in the interests of the child to have a meaningful relationship with both parents. At page 27 of his Report, Dr D opines that the child “has a strong and positive relationship” with both of his parents.
Currently, the child spends four (4) nights a fortnight with the father, speaks to the father via FaceTime every day for between 10 to 20 minutes and also has regular phone calls with the father as facilitated by the mother.
The mother contends that, in the event that orders are made permitting her to relocate with the child to the USA, she would continue to support the father’s regular engagement with the child in the event that the father travelled to visit the child in City A and, in any event, that she would facilitate the child having the same regular contact with the father by way of electronic means.
The father, however, contends that the mother’s cooperation in facilitating the father having regular contact with the child should be seen through the lens of the mother wishing to appear to be a cooperative parent in the context of impending litigation.
Once again, it is not possible to determine, in these interim proceedings, the merit of each of the parties’ respective contentions. For the purpose of considering this Application, I will assume that the status quo will continue. That is, I assume that the mother will continue to facilitate the child having regular contact with the father by way of electronic means. This includes having regular FaceTime calls.

However, it is relevant that the child would have reduced time in the physical presence of his father and, indeed, the practical considerations, to which I subsequently refer, may result in a situation where the child has no physical time with the father pending the making of the interim orders and the trial. This is a relevant consideration but not the sole consideration in determining whether the orders sought by the mother are in the best interests of the child. In that context, the Full Court in Banks & Banks (2015) FLC 93-637 (“Banks”) at [55] said:
55. We accept that significant weight should be given to the benefit to the child of having a meaningful relationship with his father (as well as with his mother). We also accept that it may be difficult, if not impossible, to establish and maintain such a relationship without there being regular physical contact.
Unacceptable risk
In interim proceedings, it is difficult to identify unacceptable risk and determine whether reasonable safeguards could mitigate against that risk. In Cowling (supra) at [18], the Full Court said, in respect to interim proceedings:
… Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect, in SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that the reference in SS & AH (supra) to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Neither party contends that the child would be at risk of physical harm as a result of any act likely to be perpetrated by the other parent. Each party contends, however, that the child is at risk of emotional harm in the care of the other party.
The mother notes, in that respect, concerns expressed by Dr D on page 30 of his Report that, in his view, the child “has already shown evidence of his own mental health deteriorating in the face of his mother’s depression”.
The mother contends that this gives rise to a situation of some urgency and submits that the Court should make her proposed orders permitting her to relocate to the USA, even on an interim basis, in order to relieve her anxiety and severe depression and the consequent impact that it has on the child.
Comparatively, the father contends that the mother’s anxiety and depression is long standing and he disputes that it is solely as a result of her current situation of living in Australia in circumstances where she is isolated from family and friends. He contends that, in the event of the Court permitting her to relocate to the USA with the child, it may well be the case that the additional support that the mother anticipates receiving upon her return may not eventuate. The father contends that, if that occurs, the mother may well continue to suffer anxiety and depression which the child will face on a regular and sustained basis in circumstances where he would not have the relief of spending physical time away from the mother as he now does when he spends time with the father.
This is clearly a complex issue that the trial judge conducting the final hearing will be required to examine in some detail. At that stage, the trial judge will have the benefit of further evidence expanding upon the observations and opinions of Dr C, the mother’s treating clinical psychologist, and Dr D. Accordingly, it is inappropriate and, indeed, not possible to properly consider the issue of the child being exposed to emotional harm as a result of being exposed to the mother’s anxiety and depression and, further, whether that anxiety and depression would be relieved by the Court making orders for the mother to be permitted to relocate to the USA with the child.
During the course of the proceedings, I specifically raised with the parties the issue as to whether the child would be exposed to a greater risk of contracting the COVID-19 virus if he were to travel by aircraft to the USA with his mother. All parties acknowledged that there was such an increased risk, however, the mother contends that risk is not one which the Court would regard as unacceptable.
In considering the issue of risk, it is significant that the Court does not presently have before it sufficient information to enable the Court to make an informed decision as to the extent of the risk of the child succumbing to infection from the current COVID-19 virus which all parties acknowledge is prevalent in the USA. In that respect, the Court has not been presented with evidence enabling an assessment to be made in respect to the following:
(a)The extent to which being in close proximity with another passenger or passengers on board an aircraft for the duration of a flight between Australia and the USA would place that child at risk of infection;
(b)Whether there would be an interconnecting flight between Australia and the first international airport in the USA;
(c)Whether there would be an interconnecting flight between the international airport upon the mother and child arriving in the USA and their final destination of City A, B State;
(d)The number of flights arriving in the USA from the interconnecting destination upon which persons infected by the COVID-19 virus have been passengers;
(e)The number of flights arriving in City A, B State, from the interconnecting international airport at which the mother and child will arrive, upon which persons infected by the COVID-19 virus have been passengers;
(f)The prevalence of COVID-19 infections in the USA and, specifically, in the region where the mother and child will live in City A, B State;
(g)The extent to which health providers have the capacity to treat persons with COVID-19 infections in that location; and
(h)The extent to which the mother has, by way of private health insurance or other means, the capacity to access that medical treatment for herself and the child.
Senior counsel for the father submitted that the Court’s inability to make an assessment of the extent of the risk of the child being infected by the COVID-19 virus during the course of travel to City A in the USA and, as a related matter, the risk of the child being exposed to the virus when residing in the USA is a relevant consideration in the exercise of the Court’s discretion in this matter. I respectfully agree. The Court is required to take a cautious approach in respect to the issue of risk in interim proceedings. The absence of more detailed information that enables the Court to make an assessment of the risk of the child being infected by the COVID-19 virus in the event of the child being permitted to relocate to the USA is a relevant matter that I consider in exercising my discretion to dismiss the mother’s Application.
The primary reason why I have declined the mother’s Application is, however, as a result of my consideration of the matters set out in s 60CC(3) of the Act which I detail below.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations for determining what is in a child’s best interests. Those considerations can conveniently be grouped under the following topics:
(a)Issues relating to the child – their views, level of maturity, culture and relationships;
(b)Issues relating to the parents – decision-making, time spent with child, fulfilled obligations, attitude, capacity and exercise of responsibility;
(c)Issues of family violence;
(d)Effect of change;
(e)Practical difficulty of implementation of orders;
(f)Avoiding further proceedings; and
(g)Other relevant matters.
In Banks (supra) at [48]-[50], the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings, in the following terms:
48. It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which section 60CC factors that are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial.
49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Issues relating to the child - their views, level of maturity, culture and relationships
Any views expressed by the child
Section 60CC(3)(a) of the Act requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Counsel for the mother contends that the Court should have regard to the opinion of Dr D as set out in his Report dated 29 November 2019 at page 27, paragraph (c) of his “conclusions and recommendations”, where he reported:
After having taken control of our interview by leading me through his City A photographs book, [the child’s] responses to my question strongly emphasized a desire to return to City A with his mother. However, he also seemed toc qualify his responses in relation to his father in a way suggesting that they actually have a close relationship. I note that I have referred to [the child] being a somewhat anxious, insecure, and slightly emotionally immature child. For that reason I think that he is vulnerable to becoming caught up in his mother's very obvious distress in such a way that he framed much of what he told me privately in terms of what he thought his mother would like him to say.
Senior counsel for the father agreed with and adopted the submissions of the ICL that:
[The child] is [nine] 9 years of age. His views were canvassed by Dr D on Page 27 of his report. When speaking with Dr D, [the child] strongly emphasised a desire to return to City A with his Mother. However, it was also noted that he qualified his responses in relation to his Father and this was considered to be indicative of him having a close relationship with his Father.
Dr D also noted that he observed [the child] to be an anxious, insecure and slightly immature child and vulnerable to becoming caught up the Mother’s distress.
The report of Dr D is now almost 12 months old and there is no current objective evidence as to [the child’s] views.
It is submitted that in any event, the Court would not place significant weight on his wishes at this time.
The Court acknowledges the views of the child expressed to Dr D however, in circumstances where the child is nine (9) years of age, those views are not determinative of what orders should be made, particularly at an interim stage of the proceedings.
The nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(b) of the Act requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
Counsel for the mother relied on the opinion expressed by Dr D in respect to this consideration which is set out at page 27 in paragraphs (b) and (d) of his Report under the subheading “conclusions and recommendations”, as follows:
The two observation sessions I conducted with [the child] and each of his parents indicated to me that [the child] has a strong and positive relationship with both of them. From the content of those discussions as well as other things the parents told me, it seemed that [the child] has had a more broadly based relationship with his mother because she had been involved at a more extensive level in almost all areas of his interest, whereas his relationship with his father seems to be based more around recreational and mechanical activities, but not exclusively so. This appeared to me to be consistent with the account that each parent gave of their own involvement in [the child’s] life as well as the account that each gave of the other's involvement. Apart from that, I did not note any significant differential between each parent's relationship with [the child] up until recently.
Currently I think that [the child’s] relationship with his mother has acquired a degree of anxious attachment arising from his awareness of her distress. I also note that despite [the child] being a bit flippant about not missing his father before he and his mother came to Australia, and despite his very intense focus on getting through the book of pictures of he and Y's family in City A, his qualification of that flippancy and his undisguised exuberance and intense focus on his father when I saw them together, indicated to me that he has a strong affection for, and attachment to, his father and that he very much enjoys the time they spend together.
…
The parents' relationship is quite poor and mutually distrustful. There is little communication between them despite them coming into face-to-face contact most school days. In my view [the child] is trying to keep the peace between his parents to some extent, and his failure to do so probably stresses him. However, I think it's likely that this pressure will settle when the court case is finalized and he will feel much less burdened.
It was contended that permitting the mother to relocate back to City A would resolve the stresses referred to by Dr D and relieve the child of the pressures referred to in those paragraphs by Dr D.
The ICL contends, in respect to this consideration, that:
The Mother says she has been the primary carer of [the child] since birth and that she received limited assistance from the Father. The Father disputes this and says that he was significantly involved in the care of [the child]. Dr D noted the Father was able to provide a comprehensive account of [the child’s] development and current situation comparable to the Mother’s account which suggests he had a significant role in [the child’s] upbringing.
If the Mother was to be permitted to relocate to City A, then the Mother asserts that [the child] would have increased access to his Maternal family as they would be able to travel from Europe to visit. It is not clear how frequently the maternal family would travel to see [the child] and whether the health conditions referred to by the Mother would impact upon their ability to travel during a pandemic. It is also unclear how significant this would be for [the child] but it is noted that the Maternal Family have lived with [the child] for an extended period since he moved to Australia.
A relocation would also allow [the child] greater access to his best friend Y who the Mother asserts continues to be an important person in [the child’s] life.
This would also be at the cost of his current meaningful relationship with his Father.
If the Mother was not permitted to relocate, then [the child] would continue to spend significant and substantial time with his Father and this would be consistent with the objects and principles of the Act in relation to children having the benefit of both of their parents having meaningful involvement in their lives.
The Court is unlikely to be in a position to make any findings in relation to this consideration at this stage.
The father agreed with and adopted that submission by the ICL.
In circumstances where the Court is unable, in interim proceedings, to make findings of fact, I am not in a position to make a determination as to the extent to which the father has or has not been involved in the child’s life. This is a significant issue in respect to this interim Application as the Court is unable to predict, with sufficient certainty, whether the father would be personally permitted to travel to the USA to visit the child if the child was to relocate on an interim basis.
Further, the Court is not in a position to determine the practical considerations of that occurring in circumstances where the parties agree that, upon his return to Australia, the father would be required to quarantine for a period of approximately two (2) weeks. I will further discuss the practical considerations arising from the mother’s proposal subsequently in these reasons for judgment.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) of the Act requires the Court to consider issues pertaining to the maturity, sex, lifestyle, background (including lifestyle, culture and traditions) of the child and either of the child’s parents.
The child is of European and American descent. As noted at page 22 of his Report, Dr D observed that the child had been spoken to exclusively in the Country E language by his parents up until the time that he started at day-care.
The information provided to the Court, however, does not enable the Court to determine, in the context of these interim proceedings, the extent to which the child’s ancestral background is an important consideration in respect to determining appropriate parenting arrangements. It goes without saying, however, that, to the extent that it is possible, it is desirable for a child to be made aware of and to experience their cultural and ancestral background.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) of the Act requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
This consideration is not relevant.
Issues relating to the parents – decision-making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
Long-term decision-making, time and communication
Section 60CC(3)(c) of the Act requires the Court to consider the extent to which each of the parties has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.

The evidence before the Court establishes that the mother has been the child’s primary carer, however, the evidence is not such that the Court is in a position, in these interim proceedings, to determine the extent to which the father has been involved in making decisions about major long-term issues in relation to the child. As noted, the parties provide conflicting evidence regarding this issue.
However, at pages 17 to18 of his Report, Dr D sets out the information he obtained from both the child and the father regarding events that they had attended together, including the fact that the child had been “quite exuberant talking about a couple of these”. Dr D summarised his observations regarding the child’s interactions with his father as follows:
[The child] and his father shared a very active, intense and apparently enjoyable interaction. They joked with each other quite a bit and they tended to go off in tangents into areas of mutual enjoyment. At the end of the session when I explained that I would be passing [the child] back to his mother, [the child] commented unprompted about this having been a special day because he had had a few extra hours with his father.
Dr D similarly recorded the child as having a close relationship with his mother.
While the mother questions the extent to which the father has, in the past, been involved in the child’s life, the evidence before the Court, even at this interim stage of the proceedings, establishes that the child has a warm, close and loving relationship with both of his parents. As noted, Dr D summarised his observations of the child’s interaction with both of the parties by concluding that the child “has a strong and positive relationship with both of them”.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) of the Act requires the Court to consider the extent to which each of the parties has fulfilled, or failed to fulfil, their obligations to maintain the child.
Significantly, by way of consent Orders made on 26 August 2020, the parties agreed that, in addition to the father paying periodic child support for the child determined in accordance with the relevant child support legislation and guidelines, the parties also agreed that the father would pay non-periodic child support in respect of the child as and when the requirement falls due as follows:
4.1 Periodic child support for Z in accordance with the assessment by the Department of Human Services (Child Support); and
4.2 Non-periodic child support in respect of Z, as and when they fall due, as follows:
4.2.1 to Z's school, within 14 days of receipt of accounts or invoices from the school or the Wife, all school fees including but not limited to tuition, fees, excursion fees, incidental sporting costs, the costs of all school books, school uniforms, and extracurricular activities; and
4.2.2 any medical, dental, orthodontic, hospital, optical, physiotherapy, podiatry, or other medical specialist fees or expenses in respect of Z which are not covered by Medicare and/or Z’s private health insurance policy.
There has been no suggestion that the father has failed to comply with his child support obligation pursuant to any determination by the Department of Social Services or the consent Orders made on 26 August 2020.
The capacity of each of the child’s parents
Section 60CC(3)(f) of the Act requires the Court to consider the capacity of each of the parties, and any other person, to provide for the needs of the child, including their emotional and intellectual needs.
Counsel for the mother contends that Dr D had, at page 28 of his Report, appropriately recorded his observations regarding the parenting capacity of the parties, as follows:
The father basically confirmed that the arrangement was that he had been the primary breadwinner since [the child’s] birth, and that his most sustained interactions with [the child] occurred on weekends and during the holidays, with more limited involvement during the week. Similarly, his mother had been primarily involved with [the child’s] education and extra curricular activities but his father had also participated in these to a fairly significant degree, within the constraints of his normal work hours.
I felt both parents appreciated that [the child] was having difficulty adjusting to his new circumstances. Perhaps understandably, the mother attributes this more to the relocation from City A, whereas the father attributes it more to the parental separation and that he is spending a lot less time with [the child] than he did in City A, or than was anticipated as likely to occur in Australia prior to the separation. I note that [the child] was in virtually daily contact with his father in the six months prior to the separation.
I note above that both parents' attitude to [the child] and to their responsibilities as parents falls well within a satisfactory range. However, I do not think that the mother is functioning as effectively as a parent as she had before she came to Australia. By exposing him to her depressed mood, she has relaxed her usual authority, and inadvertently slipped into a more harmful form of over-indulgence than was probably the father's usual parenting style. I also note that this is the case despite the presence of her parents in her own household from prior to the separation. I am concerned that should she have no support from a parent living here, the gap between her parenting potential and her actual performance will widen even further.
Comparatively, the ICL and, by way of adoption of the ICL’s submission, the father contend that:
It is anticipated that one of the key issues for determination at Final Hearing, will be how the Mother’s mental health will be impacted if she either stays or leaves Australia and whether this will impact upon and her ability to parent [the child].
The Mother asserts that she should be permitted to relocate on an interim basis due to a decline in her mental health and argues that this impacts upon her parenting of [the child] in such a significant way that it would be in [the child’s] best interests to relocate to the United States.
The Mother relies upon an affidavit of her treating psychologist Ms C which indicates that the Mother has been diagnosed with adjustment disorder (with mixed anxiety and depressed mood) and major depressive disorder (with anxious distress).
In her affidavit the Mother describes numerous psychological and physical symptoms which she attributes to her poor psychological functioning. The Mother asserts there was some improvement when she was prescribed anti-depressants in May 2020.
The Mother asserts in her affidavit that her mental health has significantly deteriorated because of:
- Her relocation to Australia;
- Her isolation and lack of family and other support;
- The Father’s coercive and controlling behaviours, in particular his control of the finances.
However, Ms C notes that factors likely maintaining her depression include:
- Ongoing uncertainty about her life;
- Having to confront her husband’s criticisms and allegations;
- Feelings of shame and judgment;
- Being prevented from accessing joint financial information or property;
- Separation from family and friends.
Ms C notes that the primary impact of the Mother’s conditions is upon the quality of her own life, particularly her lack of meaningful social contact. Ms C indicates that in her opinion, the Mother’s conditions do not significantly impair her parenting capacity. She notes that the Mother has insight into her situation and her primary focus is [the child].
Ms C indicates that the Mother’s symptoms are likely to improve when the Court proceedings are resolved but also indicates that the Mother’s return to the United States is likely to improve her recovery.
The Father disputes the contention that the Mother’s mental health is a new issue and solely connected with being in Australia. The Father contends that the Mother has had these issues for their entire relationship.
On an interim basis, the Court is therefore asked to consider an international relocation in circumstances where the Mother’s parenting capacity is not significant impaired and on the basis that her symptoms are likely to improve if she is able to relocate. It is submitted that the Court is unlikely to consider permitting an interim relocation in these circumstances.
The Mother also alleges that the Father’s capacity is impacted due to his mental health issues and his engagement in family violence.
The opinion of Dr C is set out in her report dated 6 October 2020 which is attached to her Affidavit filed on 29 October 2020. Relevantly, in that report, Dr C stated that she has been providing therapeutic treatment for the mother in respect to the management of “severe anxiety” since August 2019. The mother has attended therapy with Dr C on 25 occasions between 7 August 2019 and 27 August 2020. The mother is continuing to receive therapy from Dr C.
In her report, Dr C diagnoses the mother as suffering from an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” and “Major Depressive Disorder with Anxious Distress”.
Relevantly, at parts 6, 7 and 8 of her report, Dr C states as follows:
6. An assessment of the impact of any diagnosis on [the mother’s] day to day functioning
The primary impact [the mother’s] depression is having on her day-to-day functioning appears to be mostly on the quality of her own life, including her inability to establish social connections in Sydney (notwithstanding the current Covid environment) and her tendency to focus on negative cognitions.
If she is not caring for her son and taking him to his school or social activities, she does not appear to have any meaningful (local) social contact or purposeful activities in her day. In addition to [the mother’s] depression negatively impacting her motivation and energy levels and her inability to experience pleasure, [the mother] appears to hold feelings of shame around her marital situation, she feels quite different culturally and believes that she has little in common with school parents (particularly as she believes she has a very different education philosophy) to them, she believes she has nothing interesting to contribute socially and lacks self-confidence. She also described that it took 5 or 6 years to establish herself socially in City A and it feels pointless to her to start to build social networks again given she does not wish to remain in Sydney.
7. Your opinion as to whether [the mother’s] diagnosis would impair her parenting capacity and, if so:
(a) The extent of the impairment
From her description of how [the mother] continues to parent her son, I do not feel her current depression has significantly impaired her parenting capacity. [The mother] appears to retain insight into where she is at and how her unhappiness could negatively affect her son. She describes her son as the “love of my life”, and his wellbeing currently appears to be her primary focus in life and when he is with her, his needs, activities and company provide structure and meaning in her day. From her description, [the mother] ensures she does all she can to meet his physical, learning and social needs, she describes engaging with him in his interests, helps him keep contact with his relatives and friends overseas and facilitates school and social activities. She facilitates positive contact between her son and his father when he is with her and does not make disparaging comments to her son about his father. It is difficult to assess the impact of her ongoing depressed mood and demeanour, on her son however [the mother] describes that while she feels emotionally detached, numb and sad at times, she makes an effort to not appear unhappy in front of her son.
(b) Whether (in your experience) the impairment will likely remain static, improve or worsen over time.
In my experience, depression does resolve in time, however this is often dependent on external factors/stressors that may be maintaining depression. I feel it is unlikely [the mother’s] symptoms will improve until there is some resolution to the court proceedings, and she has some financial control and ability to make decisions for herself.
8. Prognosis, and any matters that might impact on prognosis, including but not limited to:
(a) Whether [the mother’s] return to the United States of America may improve her prognosis; and
In my view, [the mother’s] return to the USA is highly likely to improve her prognosis/recovery.
(b) Whether the requirement for [the mother] to remain in Australia will impact on her prognosis.
In my view, if [the mother] is required to remain in Australia, I feel the prognosis for her recovery is likely to be poor.
It has been determined that a reduction in the likelihood of a parent suffering depressive symptoms in the future and having an enhanced feeling of well-being may be justifiable reasons for the Court approving an application for relocation of a child’s place of residence: see for instance Babcock & Waddell [2019] FamCAFC 129. However, the question as to whether those considerations outweigh the benefit of the child having a meaningful relationship with both parents needs to be considered after careful analysis at the final hearing of an application for parenting orders. The material presented in these interim proceedings, in circumstances where I am unable to make findings of fact, does not enable the Court to make a determination of that issue at this interim stage.
Attitude and parental responsibility
Section 60CC(3)(i) of the Act requires the Court to consider the attitude to the child and parental responsibilities of each of the parties.
At page 28 of his Report, Dr D summarised the parents’ attitude to the child and the responsibilities of parenthood, as follows:
The parents agree that they divided up overall household responsibilities along traditional lines, with the mother being the homemaker and the father being the breadwinner.
Despite this however, both said that their personal and social lives were centered on [the child’s] extended school community in City A, including his friends and their families. I also note that the father was able to provide quite a comprehensive and nuanced account of [the child’s] development and current situation, to a depth and breadth comparable to that provided by the mother, suggesting at the least that he had been directly involved in, and committed to, [the child’s] growth and development throughout his life.
I concluded from this that despite their different role identifications, both parents had taken the responsibilities of parenthood seriously, and that [the child’s] welfare had been a central factor in each of their lives. I also note that it was the father who basically set up the family’s household in Australia and took primary responsibility for sourcing [the child’s] school.
The mother, however, disputes that the father has shown a positive attitude towards exercising parental responsibility in respect to the child. Once again, the Court is not in a position to adjudicate in respect to this matter in the context of these interim proceedings where the Court is restricted in its ability to make findings of fact.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) of the Act requires the Court to consider any family violence involving the child or a member of their family.
Throughout her Affidavit filed 23 October 2020, the mother makes extensive allegations that the father has engaged in serious acts of family violence both during the course of the parties’ relationship and in the period post-separation. Most relevantly, these allegations are set out in paragraphs 76 to 93 of the mother’s Affidavit. Those relevant paragraphs occupy 17 pages of the mother’s Affidavit and, in light of the extensive detail provided, will not be further set out in these reasons for judgment. I note, however, that the ICL summarises the most significant of those allegations as including the following:
- Having sex with her while she was asleep;
- Would physically intimidate her during arguments and physically restrain her with his body;
- Calling her names like ‘whore’ and ‘bitch’ and engaging in abusive tirades;
- Complete financial control, not allowing her a separate bank account, approving all purchases;
- Restricted her use of the car and ultimately taking the car at separation;
- Restricting the Mothers ability to speak to friends including by purchasing her a phone with a plan that did not allow her to make international calls;
- Restricting her access to the shipping container meaning she has been unable to access [the child’s] and her personal belongings including clothes, toys, hobby materials and mementos;
- Controlling the type of food that was eaten and where the food was purchased;
- Needing to know her whereabouts at all times and requiring a text message each day to advise of her location;
Making derogatory remarks about her lifestyle and appearance;
- Limiting her access to her support network;
- Having extreme reactions to minor issues;
- Making it difficult for the Mother and [the child] to get medical treatment, questioning why [the child] needed to be taken to the Doctor;
Comparatively, in his Affidavit, as summarised by the ICL, the father contends that the mother engaged in acts constituting family violence, including:
- Incidents of damage to property;
- Brandishing a knife and accidently cutting herself;
- Self-harming resulting in severe bruises.
Both parties acknowledge that acts of family violence occurred during the course of the parties’ relationship, however, they each deny that they were the perpetrator of those acts.
Clearly, this will be a highly contested issue that the Court will be required to determine at final hearing. The issue will be considered in the context of each of the parties being cross-examined in respect to their respective allegations. It is not an issue that the Court is capable of determining in these interim proceedings.
It is to be noted that while each parent alleges that the child is at risk of emotional harm in the care of the other parent, neither party alleges that the child is at risk of physical violence in the care of the other parent.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) of the Act requires the Court to consider any family violence order that applies or has applied involving the child or a member of their family and, if applicable, taking into account a number of stated matters.
This consideration is not relevant.
Effect of change
Section 60CC(3)(d) of the Act requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parties, any other child or other person (including any grandparent or other relative) with whom the child has been living.
At page 30, paragraph (i), of his Report, under the subheading “conclusions and recommendations”, Dr D relevantly opines as follows:
Within [the child’s] memory the longest separation he has experienced between his parents has been about six months from the start of 2019, and even then he was seeing his father face-to-face about every six weeks or so. Despite this, his relationship with his father still seems vibrant and close. I conclude from this that were his mother to relocate to City A and were she to properly support [the child’s] relationship with his father, this would not adversely affect that relationship.
Both the father and the ICL contend that this is the most significant consideration in these interim proceedings. Again, the father adopted the submission of the ICL in respect to this matter which is as follows:
The Mother’s proposed relocation would be a significant change for [the child]. The Mother would appear to contend that the impact on the child would be minimised because she is:
- Returning to live in a location where [the child] has lived previously which would allow [the child] to re-establish his existing friendships;
- Returning to a school which [the child] has attended previously;
- Returning to extra-curricular activities he undertook previously and has been participating in since arriving in Australia;
- Renting an apartment 5 to 10 minutes from [the child’s] school;
- Living in a location where the Maternal family can visit more readily than Australia.
It is likely that the Mother will assert that her proposal has been tested, as it is a resumption of her previous circumstances. The Mother gives evidence that she would be supported by old friends, she could re-engage with a previous counsellor and attend the monthly support group and church that she previously attended.
However, there are many aspects of the Mother’s proposal that are entirely untested. The Mother will return without the Father and without the significant financial support she previously had. It is not clear when the Mother’s new relationship commenced and this is likely to be untested given the chronology of events and their physical distance from each other.
Dr D also had some concerns about this new relationship.
The Mother’s affidavit does not provide significant information as to [the child’s] current circumstances. The Mother does not refer to any of [the child’s] Australian friendships, his extracurricular activities (other than a passing reference to piano lessons in the context of indicating he is able to do these in City A) or any other community involvement [the child] may have. The focus of the Mother’s affidavit is very heavily upon what a life in City A may look like and it does not appear to recognise or plan for the change being a significant one for [the child]
In comparison, the Father contends in his affidavit that [the child] is settled in Sydney, is doing well at school, has a group of friends who he spends time with over the weekend and his extra- curricular activities.
Additionally, the Mother does not address the potential impact on [the child] of an interim relocation and then a final decision that would see them return to Australia.
However, in terms of the Father’s relationship with [the child], Dr D observed at Page 30 that the Father’s relationship with Z was vibrant and close and if the Mother were to relocate and properly support this relationship, this would not adversely affect that relationship.
The significance of each of these factors is unable to be tested on an interim basis and are more appropriately dealt with at a Final Hearing.

I respectfully agree with the submission of the ICL which I note is consistent with the decision of Boland J in Morgan (supra) at [55], where her Honour stated:
Whilst such a move may [being a relocation by one parent], after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation.
Her Honour further stated that a trial judge should be cautious about making an order permitting an interim relocation in circumstances where the Court’s discretion in determining the child’s best interests might be “inappropriately fettered by a move which has already occurred”.
Practical difficulty of implementation
Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with their parents and whether that will substantially affect the child’s right to maintain personal relations and direct contact with the parties on a regular basis.
There are considerable practical difficulties associated with the implementation of potential interim orders permitting the mother to relocate with the child back to City A. Indeed, the ICL, supported by the father, contends that, “in fact, the proposal of the Mother may ultimately be one which is practically impossible given the current pandemic”.
Without determining that it is impossible for the mother’s proposal to be implemented, there are certainly significant practical difficulties which are, in my view, accurately summarised in the written submissions of the ICL as including:
- The limited availability of international flights;
- The current cost of international flights;
- The cost that would be associated with the Father needing to obtain accommodation for up to 10 weeks of non-block time with [the child] and during school holiday periods;
- The need for the Father to obtain an exemption for each trip out of Australia and the is uncertainty as to whether this would be approved;
- The need for the Father to quarantine in a hotel for 14 days after each trip;
- The need for the Father to pay for the cost of this quarantine after each trip;
- The uncertainty in relation to when these arrangements may change;
- The risk of contracting COVID-19 in City A as opposed to Sydney;
…
I further note that the father contends that his employment is such that he would not be able to accommodate the proposed travel arrangements set out in the mother’s proposed orders. While this issue is again a matter that would require more detailed evidence at final hearing, the father’s concern appears, at this stage of the proceedings, to be a plausible concern.
Of those difficulties identified in the written submissions of the ICL, to which I have referred, I am satisfied that uncertainties associated with the father’s ability to travel overseas and the fact that he would be required to quarantine upon his return to Australia represent the most significant practical difficulties associated with the mother’s proposal.
The existence of those practical difficulties is significant because, in the event of the father being unable to travel to the USA to visit the child, as proposed by the mother, the final hearing would be conducted in circumstances where, in the period between the making of such interim orders and the final hearing, the father would have had limited physical contact with the child.
Avoiding further proceedings
Section 60CC(3)(l) of the Act requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These are interim proceedings and it is important that parenting arrangements, including the prospect of the mother relocating, are further examined, in light of expert evidence, at a final hearing.
Other relevant matters
Section 60CC(3)(m) of the Act requires the Court to consider any other facts or circumstances the Court considers relevant.
In Attwill & Marden [2018] FCCA 1401 at [90]-[95], Judge Brown said:
[90] Two of the principles underpinning Part VII of the Act [section 60B(2) encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
[91] For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
[92] This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
[93] The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children [See AMS & AIF (1999) FLC 92,852]. For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
[94] In Morgan & Miles [supra], which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
[95] The comments, of Warnick J referred to, were as follows:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand [C & S [1998] FamCA 66].
In this matter, after considering all the evidence and detailed submissions of the parties at final hearing, the Court may determine that it is in the best interests of the child for the child to live in City A and be cared for by the mother. Such a determination would occur after considering and applying a number of principles which were succinctly summarised by Boland J in Morgan (supra) at [59] as follows:
•The best interests of the child are the paramount but not sole consideration.
•The applicant is not required to demonstrate “compelling reasons” for the proposed relocation.
•A court must evaluate and weigh the competing proposals of the parties against the relevant provisions of the Act, and may, subject to procedural fairness considerations, formulate its own proposals in the best interest of the child.
•The evaluation of the competing proposals is to be undertaken as part of the overall determination of the issue of where the child should live, the relocation issue not standing as a separate issue.
•That the objects and principles in s 60B of the Act (as it then was) informed or guided a court in applying the criteria relevant to “best interests” (then determined having regard to s 68F (2) factors).
•A court will take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
Her Honour, in Morgan (supra) at [61], noted that, before the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), in circumstances where a parent relocated with a child prior to final hearing, cases tended to be determined on the basis of retaining the status quo. That is, the cases “focussed on maintaining stability for a child pending a final hearing on the basis of the well-known principles in Cowling and Cowling (1998) FLC 92-801; (1998) 22 Fam LR 776 (see, for example, C v S [1998] FamCA 66; D and H [1998] FamCA 1487; T and T and Child Representative [2000] FamCA 1812; G and G [2003] FamCA 478; B and L [2003] FamCA 1512 and T and J [2006] FamCA 145)”.
However, as further noted by Boland J in Morgan (supra) at [85]:
In Goode [supra] the Full Court considered whether the principles in Cowling [supra] remained applicable after the introduction of the amending Act [being the Family Law Amendment (Shared Parental Responsibility) Act 2006], particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change “which required reconsideration of that paragraph.
The following passages from Goode (supra) at [71]-[73], as referred to by her Honour, were as follows:
71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
The changes to the objects referred to by the Full Court in Goode (supra) included s 60B(1) of the Act, which now provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
…
Accordingly, on the basis of the principles adumbrated in those cases, it is no longer the case that a trial judge should prioritise maintaining stability for the child over and above the totality of considerations set out in s 60CC of the Act in determining what orders are in the best interests of the child. However, nonetheless, stability is an important consideration. This includes the fact that the making of interim orders permitting the child to relocate to City A may, in the event of the trial judge taking a different view after considering the totality of evidence at final hearing, result in a situation where the child would be required to once again internationally relocate. At such time, that relocation would be from City A back to Australia. Such disruption for a second occasion would not, in my view, in the circumstances of this case, be in the child’s best interests.
As an additional consideration, counsel for the mother contends that the Court should approach this matter on the basis of a finding that the mother was misled or deceived by the father in coming to Australia in circumstances where it was inevitable or, at least, highly likely that the parties’ relationship would end upon the mother’s arrival or shortly thereafter. The evidence presented in these proceedings is not sufficient for the Court to make a finding to that effect.
Even if, however, the evidence was sufficient to justify the making of such a finding, any such finding would not alter the fact that the Court is required, in these interim proceedings, to consider and to make orders that the Court is satisfied are in the best interests of the child.
CONCLUSION
Having regard to the totality of those considerations to which I have referred in this decision, I am not satisfied that the orders proposed by the mother in her Application in a Case filed 23 October 2020 are in the best interests of the child.
As previously noted, both parents sought extensive orders which would result in a change of the child’s current parenting arrangements. During the course of these proceedings, the primary focus was upon whether orders should be made permitting the mother to relocate with the child to the USA. The Court was not otherwise adequately addressed on the appropriateness of current parenting arrangements being varied.
Accordingly, in those circumstances, I will make orders as sought by the ICL dismissing the mother’s Application, as set out at the commencement of these Reasons for Judgment.

I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 23 November 2020

File number(s):	SYC 5377 of 2019
Judgment of:	MCCLELLAND DCJ
Date of judgment:	23 November 2020
Catchwords:	FAMILY LAW – CHILDREN – Interim parenting – Relocation – Where the parties and child relocated from the United States to Australia in 2019 – Where subsequently the parties have separated on a final basis – Where the mother seeks to relocate back to the United States with the child on an interim basis – Where the father and Independent Children’ Lawyer oppose the mother’s Application – Where the mother suffers from a depressive anxiety condition – Where both parties make allegations of the other engaging in family violence – Where the Court noted such factual dispute cannot be resolved in interim proceedings – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII, s 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited:	Attwill & Marden [2018] FCCA 1401 B & L [2003] FamCA 1512 Babcock & Waddell [2019] FamCAFC 129 Banks & Banks (2015) FLC 93–637) C & S [1998] FamCA 66 Champness & Hanson (2009) FLC 93-407 Cowling v Cowling (1998) FLC 92-801 D & H [1998] FamCA 1487 G & G [2003] FamCA 478 Godfrey & Sanders (2007) 208 FLR 287 Goode and Goode (2006) FLC 93-286 M & S (2007) FLC 93-313 Masson v Parsons (2019) 368 ALR 583 Mazorski & Albright (2007) 37 Fam LR 518 Morgan and Miles (2007) FLC 93-343 O v S FC Palmerston North FAM 2003-054-000859, 21 January 2005 Sigley v Evor (2011) 44 Fam LR 439 SS & AH [2010] FamCAFC 13 T & J [2006] FamCA 145). T & T & Child Representative [2000] FamCA 1812
Number of paragraphs:	139
Date of hearing:	5 November 2020
Place:	Sydney by web conference
Counsel for the Applicant:	Mr Sweeney
Solicitor for the Applicant:	Broun Abrahams Burreket
Counsel for the Respondent:	Mr Cummings SC
Solicitor for the Respondent:	Lander & Rogers (Sydney)
Solicitor for the Independent Children's Lawyer:	Ms Kelso of Legal Aid NSW Sydney Central Family Law

SYC 5377 of 2019
BETWEEN:	MR ANGELI Applicant
AND:	MS FARINA Respondent
LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW Independent Children’s Lawyer

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	23 NOVEMBER 2020