Angeli & Farina - [2021] FedCFamC1F 266

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Angeli & Farina [2021] FedCFamC1F 266

File number(s): SYC 5377 of 2019

Judgment of: ALTOBELLI J

Date of judgment: 9 December 2021

Catchwords:
FAMILY LAW – PARENTING – International relocation – Where mother seeks to relocate to the United States of America with the child – Where the father opposes the relocation application – Consent orders made for equal shared parental responsibility – Mental health of the mother – Findings that the mother’s mental health was caused by or exacerbated by family violence in her relationship with the father – Order made permitting child to relocate with the mother and to spend time with the father.

FAMILY LAW – CHILD SUPPORT – Application to depart from administrative assessment of child support – Future financial circumstances of the parties so unclear that the Court cannot be satisfied as to the presence of any factor in s 117 of the Child Support (Assessment) Act 1989 (Cth) – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC

Child Support (Assessment) Act 1989 (Cth) s 116, s 117

Cases cited:
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Carlson & Fluvium [2012] FamCA 32

Champness & Hansen (2009) FLC 93-407; [2009] FamCAFC 96

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Sanders [2007] FamCA 102

Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170

Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209

Taylor v Barker (2007) FLC 93-345; [2007] FamCA 1246

U v U (2002) 211 CLR 238; [2002] HCA 36

Division: Division 1 First Instance

Number of paragraphs: 125

Date of last submission/s: 23 September 2021

Date of hearing: 7-14 May 2021, 13-16, 23 September 2021

Place: Sydney

Counsel for the Applicant: Mr Schonell SC

Solicitor for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Ms Christie SC

Solicitor for the Respondent: Lander & Rogers

Counsel for the Independent Children's Lawyer: Ms Shea

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

SYC 5377 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ANGELI

Applicant

AND:
MS FARINA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

9 DECEMBER 2021

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

THE COURT ORDERS BY CONSENT THAT:
2.The mother and father have equal shared parental responsibility for the child Z born on … 2011 (“Z”).

Communication
3.While Z is living with the mother, in the United States of America (“USA”), the mother will 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 three days each week at such times as agreed between the parties, and failing agreement each Sunday, Wednesday and Friday during between 5.30pm and 7.30pm (City A time), and for that purpose;
(a)The mother and the father will each do all things necessary to ensure each has in place the necessary technology to enable FaceTime and Skype communication between Z and the father; and
(b)The mother will allow Z a space within her residence so that communication between Z and the father can occur without interruption.

4.During periods both parents are in Australia, the mother and the father will each facilitate Z having communication with the other parent when he is in their care 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 at such times as agreed between the parties, and failing agreement between 6pm and 7pm on each day Z is not spending time with the other parent and for that purpose:
(a)The mother and the father will each do all things necessary to ensure each has in place the necessary technology to enable FaceTime and Skype communication between Z and the other parent; and
(b)The mother and the father will allow Z a private space within their residence so that communication between Z and the other parent can occur without interruption.

5.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.
Notification Provisions
6.Each party will keep the other party advised in writing at all times of their residential address, the names of other people residing at this address, contact telephone number and Skype/FaceTime details by which Z may communicate with the other parent.
7.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.
8.The father will authorise and take the necessary steps to facilitate:
(a)Any medical practitioner upon which Z may attend from time to time, to communicate with the mother in respect to Z's medical condition and/or requirements, and
(b)Any school (including any extracurricular activity) at which Z may attend from time to time to:
(i)Provide the mother copies of all school reports, school notices and school photographs in relation to Z; and
(ii)Communicate with the mother, either by telephone, in writing or other electronic means in respect to Z's progress at his school as well as all other school related matters.

9.The mother will authorise and take the steps necessary to facilitate:
(a)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
(b)Any school (including any extracurricular activity) at which Z may attend from time to time to:
(i)Provide the father copies of all school reports, school notices and school photographs in relation to Z; and
(ii)Communicate with the father, either by telephone, in writing or other electronic means in respect to Z's progress at his school as well as all other school related matters.

Restraints
10.Each party be restrained from:
(a)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;
(b)Discussing these proceedings, including the contents of any document filed by or on behalf of either parent, with Z; and
(c)Showing Z any documents filed by or on behalf of either parent.

Family Law Watch List
11.The Family Law Watch List Order made on 16 October 2019 is discharged.
12.The parties do all things and sign all documents as may be required to request Australian Federal Police to remove the name of Z born … 2011 from the Family Law Watch List.
Other
13.The parties and the Independent Children’s Lawyer are granted leave to provide a copy of Dr D’s Reports dated 20 December 2019 and 9 September 2021 to the following:
(a)Dr F (mother’s medical general practitioner);
(b)Dr C (mother’s clinical psychologist);
(c)Ms K (mother's therapist);
(d)Ms O (mother's therapist in City A);
(e)Ms L (father’s consultant);
(f)Ms N (child’s therapist); and
(g)Ms P (family therapist).

14.The parties and the Independent Children's Lawyer are granted leave to provide a copy of any Reasons for Judgment and Orders made by Justice Altobelli to Ms N and Ms P (or such other child or family therapist upon which either Z or the parties may attend as agreed in writing between the parties).
15.Following release of these orders and reasons for judgment, the parties engage in confidential family therapy by electronic means with Ms P or such other family therapist as may be agreed between the parties in writing for a period of at least six months or as otherwise agreed between the parties in consultation with Ms P.
16.For the purposes of Order 15:
(a)appointments will be scheduled as soon as practicable after judgment is delivered;
(b)each party will meet their own costs of attendance upon Ms P and half the costs of any joint sessions noting that the parties shall initially meet with Ms P individually and will thereafter consider recommendations made by Ms P in relation to how such sessions may best be conducted;
(c)the parties will use their best endeavours to encourage their respective partners to participate in such therapy as recommended by Ms P; and
(d)the parties shall not be permitted to subpoena the family therapy files or notes.

17.Within 28 days of the date of these orders, the mother and the father shall pay the amount of $9560.75 to Legal Aid NSW being the costs of the Independent Children’s Lawyer.

THE COURT FURTHER ORDERS THAT:
18.Z live with the mother.
19.The mother be permitted to relocate with Z to City A, B State in the USA on a permanent basis no earlier than 1 January 2022.
20.That Order 19 be conditional upon:
(a)The mother obtaining an exemption to travel by the Department of Home Affairs, if applicable;
(b)The mother having received two doses of the COVID-19 vaccine herself and;
(c)The mother ensuring that Z has received two doses of the COVID-19 vaccine (or as many doses as reasonably possible, if any, having regard to the date of availability of the same, the date of these orders, and the date of travel pursuant to these orders), if available to children under the age of 12 before 1 January 2022.

Arrangements for the father’s time
21.Z spend time with the father from 9am on 11 December 2021 to 5pm on the date three days prior to the mother and Z’s flight to the USA.
22.Provided both parents have received a COVID-19 vaccine, Z spend time with the father by agreement between the parties and failing agreement as follows:
(a)35 consecutive days during Z’s summer school holiday break (occurs between May and August) and in odd numbered years this period may include Z’s birthday;
(b)14 consecutive days to commence during Z’s Christmas school holiday break with this period to include Christmas Day in even numbered years, noting that in even numbered years Z will return to school after the commencement of the January school term;
(c)At such other times as the parties may agree in writing.

23.For the purpose of Order 22 and in the event that any requirements for quarantine remain in place at the time of travel, the time Z is to spend with the father is not to include any periods of time that Z must spend in quarantine in Australia, or the USA, or any other place to which he travels.

Additional time subject to the father’s availability
24.In the event that the father is able to travel to City A, B State and has received a COVID-19 vaccine, and provided he has complied with Order 30, the father shall spend time with Z:
(a)For 14 consecutive days including Z’s spring holiday break (occurs in April) in the USA;
(b)During school terms, by agreement between the parties, and failing agreement for up to 10 weeks per calendar year provided that:
(i)In the event the father elects to spend a block period of up to 14 days, then Z spend time with the father uninterrupted for that period;
(ii)In the event the father elects to spend a block period exceeding 14 days, then Z spend time with the mother during that period each alternate weekend from after school Friday until before school Monday with the first weekend occurring after the first full weekend of time spent with the father noting that the purpose of this Order is to ensure that Z is not spending extended periods away from the mother during term time; and
(iii)The nominated time occurs during Z's school term including weekends (with the exception of Order 24(b)(ii)) and does not take place during any other holiday or school free days (including long weekends) unless otherwise agreed between the parties;
(iv)There is a seven day period where Z is in the mother’s care between exercise of any term time block and any holiday block.

Changeover
25.Unless otherwise agreed, in the event Z is spending time with the father in Australia, changeover take place as agreed between the parties and failing agreement at Sydney International Airport or City A International Airport and shall occur in accordance with Order 36.
26.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.
27.Z will be returned to the mother by the father in accordance with Orders 25 and 36 by no later than 24 hours prior to commencement of school term.

Communication
28.In the event Z is spending time or living with the father in Sydney, Australia, in accordance with these orders, the father will 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 on no less than three days each week at such times as agreed between the parties, and failing agreement up to thirty (30) minutes each Wednesday and Friday between 7.00am and 7.45am and each Sunday between 8.00am and 10.30am (Sydney time) during school term; and each Wednesday, Friday and Sunday between 8.00am and 10.30am (Sydney time) during school holidays when:
(a)Both parties will 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
(b)The father will allow Z a private space within his residence so that communication between Z and the mother can occur without interruption.

29.In the event that the father’s birthday and the mother’s birthday do not fall within Orders 3 and 28, Z will have electronic communication on these dates in accordance with Orders 3 and 28.

Notification provisions
30.For the purposes of Orders 22 and 24, the father will nominate the dates and give the mother at least 12 weeks' notice in writing of his nominated travel dates.
31.The father be entitled to attend and fully participate in all and any activities at the school/s or connected with the school/s at which Z will attend, to which the parents, or parents generally are invited to attend or participate, irrespective of whether Z is in his care at the time.
32.The father be entitled to attend and fully participate in all extra-curricular activities Z is enrolled in to which parents generally are invited to attend or participate, irrespective of whether Z is in his care at the time.

Costs associated with travel
33.The mother is 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 USA summer breaks each year, and 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.
34.The father is 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 Christmas school holiday period, and the father 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.
35.The father is responsible for meeting the costs of his travel to the USA for the purposes of spending time with Z in accordance with these orders and will provide the mother with a copy of his travel itinerary by no later than 28 days prior to the father’s arrival.
36.Until Z has attained the age of 15 years, Z must travel with a parent, or be accompanied by a third party nominated by the parent making the travel arrangements 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 these orders.

Passports and visa arrangements
37.The mother hold Z’s passports and shall ensure that Z travels with his passport for the purposes of Order 22.
38.The mother shall ensure that Z’s American and Country E passports (“the passports”) remain valid and for this purpose:
(a)If the following has not already occurred, then within seven days of the date of these orders, the mother provide a completed American and Country E passport application to the father (“passport applications”), and within a further seven days, the father returned signed copies of the passport applications to the mother. The mother will thereafter lodge the passport applications, with the parties sharing the costs associated with renewing the passports;
(b)The mother shall begin the application procedure for renewal 12 months prior to their expiration and provide the relevant documentation including signed copies of the passport applications to the father for completion and signature;
(c)The father shall provide all duly completed and signed paperwork to the mother promptly and no later than one month after being provided with the applications;
(d)The mother shall then lodge the application within one month of receiving the signed documents;
(e)The parties shall share the costs associated with renewing the passports.

39.The father is responsible for making arrangements and meeting the costs of Z’s travel visas to Australia at all times if they are required.
40.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.
Child support
41.The mother’s application for a child support departure order is dismissed.
Other
42.The Independent Children’s Lawyer shall be discharged after she has met with Z in the presence of Ms N in order to advise him of the outcome of these proceedings.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Angeli & Farina has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

This case is about a child, Z (“Z”) who is 10 years old and currently lives with the Applicant mother, Ms Farina (“the mother”), and spends time with the Respondent father, Mr Angeli (“the father”), in Sydney. The Court has made a very difficult decision about whether Z should live with his mother in City A in the United States of America (“USA”) or with his father in Sydney. These reasons for judgment explain why the Court has allowed Z to return to live in City A with his mother, and spend time with his father whether in the USA, Australia or elsewhere. The Court also decided an issue about child support.
APPLICABLE LAW
The applicable law in parenting matters is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration (s 60CA). Section 60CC of the Act specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note:        Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The parents agreed to equal shared parental responsibility, and neither submitted that equal or substantial and significant time were appropriate in this case.
Relocation cases are not a separate category of parenting cases. Nor is relocation treated as a discrete issue. Rather, the preferred approach is to regard it, where possible, “as just one of the proposals for the child’s future living arrangements” (Taylor v Barker (2007) FLC 93-345 at [53]). The Court is not bound by the proposals of the parties (U v U (2002) 211 CLR 238 at [80]). The best interests principle remains the paramount consideration in the determination of relocation applications and the standard legislative pathway applies (Sayer & Radcliffe (2012) 48 Fam LR 298).
The Court recognises that each party is entitled to live where they choose without the need to provide “compelling reasons” (AMS v AIF (1999) 199 CLR 160 at [191]) but such right of freedom to mobility must ultimately defer to the paramount consideration (U v U (2002) 211 CLR 238 at [89]). The interaction between these principles was described by Full Court in Franklyn & Franklyn [2019] FamCAFC 256 at [27]–[28] as follows:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
THE EVIDENCE
In support of his case, the father relied on the following documents:
(a)His Initiating Application filed 15 August 2019;
(b)His Financial Statement filed 29 January 2021;
(c)His Affidavit filed 9 April 2021;
(d)Affidavit of Mr M filed 9 April 2021;
(e)Affidavit of Ms Q filed 9 April 2021;
(f)Affidavit of Mr S filed 7 May 2021;
(g)Affidavit of Mr R filed 7 May 2021;
(h)Affidavit of Mr U filed 7 May 2021;
(i)His Affidavit filed 30 August 2021;
(j)Affidavit of Ms T filed 30 August 2021;
(k)His Affidavit filed 2 November 2021;
(l)Affidavit of Ms T filed 8 November 2021;
(m)His case outline document filed 3 May 2021;
(n)His outline of submissions filed 22 September 2021; and
(o)Various documents tendered and marked as exhibits A1 to A26.
In support of her case, the mother relied on the following documents:
(a)Her Response to Initiating Application filed 9 October 2019;
(b)Her Financial Statement filed 29 January 2021;
(c)Affidavit of Ms H filed 9 April 2021;
(d)Affidavit of Dr C filed 9 April 2021;
(e)Affidavit of Ms O filed 9 April 2021;
(f)Affidavit of Mr V filed 9 April 2021;
(g)Affidavit of Ms W filed 9 April 2021;
(h)Her Affidavit filed 12 April 2021;
(i)Affidavit of Ms H filed 31 August 2021;
(j)Affidavit of Dr C filed 31 August 2021;
(k)Her case outline document filed 3 May 2021;
(l)Her outline of submissions filed 22 September 2021;
(m)Various documents tendered and marked as exhibits R1 to R42.
In support of her case, the Independent Children’s Lawyer relied on the following documents:
(a)Her case outline document filed 4 May 2021;
(b)Her outline of submissions filed 21 September 2021; and
(c)Various documents tendered and marked as exhibits ICL1 to ICL13, including the single expert report of Dr D dated 29 November 2019 and the update single expert report of Dr D dated 9 September 2021.
OVERVIEW OF THE CASE AND THE EVIDENCE
On 15 January 2019 the father relocated to Sydney from City A to take up a position as an educator at a leading Australian university. The mother and Z visited once in April 2019, and the father travelled to City A several times. On 2 July 2019 the mother and Z arrived in Sydney to live with the father.
The parental relationship was at all relevant times deeply unhappy, a fact that pre-existed the parties’ move to Australia. The relationship broke down shortly after the mother arrived in Sydney. The father commenced the present proceedings on 15 August 2019. On 23 August 2019 the father left what was their family home. The mother was served with the father’s documents on 26 August 2019. Z has since lived with the mother and spent time with the father.
The evidence in this case (from both parents, Dr D, Ms N, as well as the school he attends) clearly indicates that Z is currently under an enormous amount of stress. Indeed, he is currently overwhelmed. He is anxious and sad. Whatever order the Court makes must address this as a priority. He is a child who is vulnerable for at least as long as the parental conflict continues, and the parental conflict is inextricably interwoven with the litigation.
The parents fundamentally disagree as to whether Z’s stress will be alleviated by orders that cause him to remain in Australia with his father, or return to City A with his mother. In short, both the mother and Independent Children’s Lawyer suggest that it is the latter.
Notwithstanding this, Z’s relationship with his father is thriving, he has developed friendships in Australia, has been doing well at school (both in City A and in Sydney), and has maintained close friendships in City A.
Dr D, the single joint expert in this case, described Z as reasonably resilient, albeit stressed by his mother’s situation. He is able to compartmentalise, including the ability to extricate himself from the parental conflict and his mother’s stressed mental health and have good experiences both with his father and at school. Dr D was of the view that, currently, his relationship with his father is less vulnerable than his relationship with his mother. There was little contest about this and, in any event, the Court agrees with Dr D.
The mother’s experience of isolation after relocating to Sydney was palpable. She is isolated from: her friends in City A; her partner, Ms H (“Ms H”); the relative proximity she enjoyed to her parents and family in Country E; the social network she had established with families associated with Z’s school in City A; as well as the therapeutic relationships she had there. This isolation had a cascading adverse effect on the mother’s mental health.
According to both Dr D and Dr C (the mother’s treating psychologist since August 2019), the mother suffers from adjustment disorder with mixed anxiety and depressed mood and major depressive disorder. Dr D agreed with the Independent Children’s Lawyer that the mother is emotionally depleted if not empty at moment.
The Court must decide whether her mental health is likely to improve or deteriorate should she return to City A, with or without Z.
Mistrust permeates the parental relationship, and much of it is historically rooted. Communication has been highly problematic in the past. No doubt the litigation has made it worse, but they managed to arrange an extension to the father’s time with Z during the COVID-19 home-schooling period with minimal assistance, with much child focus, and despite the mother’s reluctance.
The mother was the primary carer before relocation to Australia. That is not to deny the father’s involvement in his son’s life, but it recognises the roles that the parents themselves adopted during their relationship, with the father working to develop his professional career as an academic. The mother remained Z’s primary carer after relocation, though the father’s role increased and certainly became even more important for Z.
The mother experienced the father as controlling of her. That this was her experience is undeniable. The Court will need to find whether there was a factual basis for this.
There were only two options available to the Court—either Z lives with his father in Sydney, or lives with his mother in City A. The father will not move back to City A, and the mother will not remain in Sydney.
The mother’s relocation proposal is detailed and well-considered. She has clearly thought about and led evidence in relation to issues such as schooling, finances, accommodation, employment, and friendships etc.
Credibility issues have limited relevance in this case despite the strident submissions made by senior counsel for the father. It may well be that the mother was untruthful about certain issues, was non-responsive in cross-examination, and was occasionally evasive. The same observations can be made about the father, albeit on different issues. From the Court’s perspective, on the critical issues for the Court to decide, credit issues were not determinative. Both parents engaged in exaggeration and embellishment at times, but this does not make their evidence untruthful. As explained by Kent J in Carlson & Fluvium [2012] FamCA 32, and affirmed by the Full Court in Sahrawi & Hadrami (2018) FLC 93-857:
165.     As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166.     To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.     Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.     These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.     Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
(Emphasis added)
Fault or conduct issues likewise have limited relevance in this case. This Court firmly believes that it makes no difference to Z’s best interests whether or not the Court adjudicates on which of his parents was: more culpable as regards the breakdown of the relationship; the more deceitful and manipulative before and after separation; the greater hypocrite; or the angrier at the other.
Historical matters are only relevant insofar as they assist to understand the present and inform the future. The circumstances surrounding the decision to relocate and whether the mother agreed or not, or whether the father had been manipulative or not, is of limited assistance in deciding this case. The mother’s unsuccessful interim application to relocate is also of limited relevance to the present application.
The COVID-19 global pandemic overshadows this case. It is a new reality for families. The Court’s view is that family life cannot be suspended indefinitely whilst the pandemic runs its course. The pandemic is simply another level of uncertainty that must be considered with the other relevant factors in this case.
This is a case where the actions of the parents speak louder than the words uttered at the hearing. Thus, for example, the concerns they both raise about risk of harm to Z must be understood in the context of their own past and present actions as well as proposals for the future.
The single joint expert, Dr D, provided two reports which were of assistance to the Court, but which contained no specific recommendations.
COMPETING PROPOSALS
The proposals of each party and the Independent Children’s Lawyer are reproduced in Schedules A to C to these reasons for judgment.
The father, in his amended minute of order (marked as exhibit A1), proposed that the parties have equal shared parental responsibility for Z, that Z live with the parents in a week-about arrangement, and on special occasions, if the mother stays in Australia. In the event the mother lives overseas, the father proposed that Z spend time with the mother during the entirety of the Term 1 and 3 school holidays and for half of the Term 2 and 4 school holidays. The father proposed that Z’s name be removed from the Family Law Watch List, and that the father hold Z’s American and Country E passports. The father also provided an alternate minute of order in the event Z is permitted to relocate to City A (marked as exhibit A23), in which he seeks to spend time during the summer and Christmas school holiday breaks.

In her minute of order (marked as exhibit R1), the mother sought sole parental responsibility and that she be permitted to relocate with Z to City A. She proposed that Z live with her and spend time with the father during the school summer break each year. She further proposed that Z time spend time with the father in the spring break in odd-numbered years and during the Christmas school holiday in even-numbered years. She proposed that this time occur in the USA until both parents have received a COVID-19 vaccine and/or international travel restrictions in Australia have been lifted, after which the time could occur in Australia. The mother’s proposed minute also provides for Z to spend up to 10 weeks per calendar year during the school term with his father in City A. Like the father, the mother tendered an alternate minute of order containing orders sought by her in the event that Z remains in Australia with the father (marked as exhibit R41). In her alternate minute, the mother proposed that Z spend time with her for the whole of the short holiday school holiday periods in Terms 1 and 2, and the whole of the Term 4 school holiday period in one year and four weeks of the Term 4 school holiday in the next year.
The Independent Children’s Lawyer provided several minutes of order to the Court, the final one of which was provided by way of email on 1 October 2021 to reflect the closing submissions made by counsel for the Independent Children’s Lawyer (marked as exhibit ICL14). The final minute proposed that the parties have equal shared parental responsibility and that Z be permitted to relocate to City A with his mother. On this proposal, Z would spend time with his father during his summer school holiday period and Christmas school holiday period, plus additional time in the spring holiday break and during school terms in the event that the father is able to travel to City A. The mother would hold Z’s passports and ensure they remain valid, and Z’s name would be removed from the Family Law Watch List.
Both parties and the Independent Children’s Lawyer proposed some form of Skype or FaceTime contact, albeit in different scenarios.
Counsel for the Independent Children’s Lawyer provided an insightful, succinct summary of the issues presented by this case in her written closing submissions. She submitted that no matter what decision the Court makes Z would be separated from one parent thus resulting in grief and loss being experienced by at least one parent and Z. There were strengths to the proposals made by both parents, as well as weaknesses. Ultimately the Independent Children’s Lawyer submitted that the risk of emotional and psychological harm to Z was marginally less if he were to relocate to City A because:
a.Z’s relationship with his Father is stronger and therefore more capable of being sustained over a long distance than his relationship with the Mother;
b.Z knows his Father is well and does not worry about him in the same way that he worries about his Mother, and
c.The Father is more psychologically robust than the Mother – he is therefore more capable of managing the grief and loss of separation from Z, and more importantly, has greater capacity to protect Z from his own grief and loss.
As it turns out, the Court will accept this submission.
OUTLINE OF THESE REASONS FOR JUDGMENT
The evidence will primarily be discussed by reference to the considerations referred to in s 60CC of the Act. The Court will then conclude what order is in the best interests of Z.
Primary considerations
Meaningful relationship
Z will have a meaningful relationship with his parents whether he is in Sydney or City A. There is no doubt that he has a meaningful relationship now. Equally, there is no doubt that, in a prospective sense, maintaining that is desirable. In any event, the law is quite clear that “meaningful” does not necessarily mean “optimal” (Champness & Hansen (2009) FLC 93-407; Godfrey & Sanders [2007] FamCA 102).
The father’s case seemed to contend that a meaningful relationship would not be possible if Z were in City A for two main reasons. The first seemed to be based on the mother’s mental health, and the risk that this posed to Z, particularly in the context of her facilitating an ongoing relationship with the father. These related issues will be considered elsewhere in these reasons. The Court will conclude that neither will result in the father not being able to have a meaningful relationship with his son, even if Z lives in City A. The second reason was founded on anticipated difficulties that could be created as a result of the COVID-19 pandemic. The Court does not accept that any such difficulties will inhibit the future meaningful relationship between Z and his father. The reality is that the impact of the pandemic on family life has ebbed and flowed in the same way that the impact of the pandemic on all other aspects of life (including travel) has risen and fallen.
The Court did not understand the evidence of Dr D to be in any way inconsistent with the above. Z’s relationship with his father will continue to be meaningful even if he is in City A. Despite the closer and deeper relationship that Z enjoys with his mother, the same conclusion applies. Meaningful relationship is not determinative in this case.
Protecting the child from harm from being subjected to, or exposed to, abuse, neglect or family violence
A difficulty the Court has with submissions to the effect that Z is at some risk of harm in the care of one of his parents is that this is fundamentally inconsistent with the proposals made for time with the other parent. This was a more prominent feature of the father’s case than the mother’s case. It is to be noted that the father’s original proposal was for equal time with each parent in Sydney. On the father’s proposal, in the event that the mother relocates to City A and Z were to live with him in Sydney, Z would be spending time with his mother for all of his Term 1 and Term 3 school holidays, and one half of the Term 2 and Term 4 school holidays. This totals approximately 11 weeks annually. Moreover, the father proposed no orders in relation to the mother’s mental health e.g. that she continue to engage with her treating professionals, or take medication as prescribed etc. The proposal is inconsistent with the stated concern.
That does not mean, of course, that the father’s concerns about the mother’s mental health, and the impact of this on Z, are ignored by this Court. He says that the mother’s mental health presents a risk of harm to Z, as well as being an obstacle to the facilitation of a long-distance relationship with him.
The inconsistencies between his stated concerns and the proposals made can be variously interpreted. It is clear that the father loves his son and would do nothing to consciously expose him to a risk of harm. Nonetheless, the reality of the adversarial nature of litigation about children might mean that he presents concerns in his case but does not attach the same weight personally to these concerns as he would otherwise contend in Court. In other words, his concerns are overstated. Another possibility is that the father holds no concerns whatsoever. The Court very much doubts this. He is right to have some concerns about the mother’s mental health. From the Court’s perspective, there is little or no new evidence about the mother’s mental health that would explain the inconsistencies between the father’s stated concerns and his proposals for time. The most likely explanation is that the father has overstated his concerns about the mother’s mental health, and its potential impact both on Z and on Z’s relationship with his father.
The Court accepts the evidence of Dr D and a central tenet in the mother’s case—that is, the question is whether the mother’s parenting capacity is impaired by any mental health issues she suffers, including any emotional fragility or vulnerability, and any personality traits, or any other reason. None of these issues, per se, contraindicate adequate parenting. It is self-evident, however, that impaired parenting capacity does not necessarily entail risk of harm to a child. Moreover, in this case the relevance and impact of the mother’s mental health and its impairment of her parenting capacity needs to be explored not just by reference to various geographical scenarios (e.g. child in Sydney or child in City A) but also by reference to the present and the future. Yet another relevant set of factors include the causes of the deterioration in the mother’s mental health, as well as its continuation and exacerbation. In this regard, it is part of the mother’s case that her mental health concerns (and thus, implicitly, any impairment in her parenting capacity) were caused, or exacerbated, by the father’s family violence. This family violence is in itself another risk of harm to Z.
The evidence of the single joint expert, Dr D, and the evidence of the mother’s treating professionals, all indicate unequivocally that the mother suffers from depression and anxiety. This is undoubtedly having an effect on Z, and even the mother concedes that this is affecting her present parenting of her son. The mother’s depression was observed to noticeably worsen between the first and second reports of Dr D (prepared on 29 November 2019 and 9 September 2021) and of Dr C (prepared on 6 October 2020 and 7 April 2021).
The mother’s mental health concerns certainly predate relocation to Australia. The evidence (including what the mother told Dr D, Dr C, and her therapist in City A, Ms O) indicates that she has been consulting mental health professionals on a non-continuous basis from at least 2003, and possibly earlier. Dr D explained that some of the mother’s pre-existing conditions suggest that some of her behaviour was part of a lifelong pattern which contributed to personality vulnerabilities. The mother contends that most of these mental health attendances were as a result of difficulties she was experiencing in her relationship with the father. When the records of the mental health professionals in question are carefully scrutinised, the mother is, like the father, found to have overstated her case. The clearly unhappy relationship with the father, and her experience of him as being coercive and controlling, were certainly issues raised, but there were other issues predating the marriage and relating to the mother’s own experience of being parented. As Dr D opined, these were likely operative underlying factors as regards her mental health.
The present impact of the mother’s mental health concerns on her parenting of Z were not in contention. To her credit, the mother’s evidence on this issue was transparent. In his second report, and confirmed in cross-examination, Dr D referred to it as the mother being so depressed that she found it difficult to break away from her own self-absorption to focus on Z’s needs across the whole spectrum. Thus, whilst she was well able to provide for his physical needs, his emotional needs suffered, she was insufficiently attuned to him, and her ability to respond intuitively to his emotional state was significantly compromised. Dr C’s evidence was consistent with this.
The predicament for Z was apparent from the evidence that Z seemingly sought to support his mother through her current mental health difficulties. Dr D described it as reverse parenting. Z is anxious about his mother but, Dr D noted, this anxiety would not be alleviated by an order that he live with his father. Nonetheless, the mother’s mental health vulnerabilities presented a risk to Z.
Is this a temporary situation, and thus a manageable risk of harm for him? The Court accepts the submission of the Independent Children’s Lawyer in this regard. She submitted that the risk that Z will continue to be stressed and burdened by worry for his mother will be mitigated by a return to City A, not exacerbated by it. Indeed, by not allowing relocation the already anxious and insecure relationship Z has with his mother may further deteriorate. The Independent Children’s Lawyer submitted, and the Court accepts, that the mother’s recovery will certainly be slower and harder if Z is not with her. This submission is consistent with Dr C’s evidence and aspects of Dr D’s evidence.
The fact that the mother’s mental health concerns are long-standing is a relevant consideration in assessing the likelihood, or otherwise, of the mother’s mental health improving if she is permitted to relocate to City A with Z. The strong impression formed from the evidence of Dr D and Dr C is that on this scenario the mother’s mental health is likely to improve, but it is difficult to predict to what extent, and how long it will take. The Court accepts this evidence. Amongst other things, the conclusion makes sense. The litigation will be over. The mother will be returning to her home, with all of the supports she had in place before relocation, including access to Ms O who has provided weekly therapy for her since at least 2017. The Court acknowledges that there is uncertainty about this, especially if the mother’s return to City A is met by unforeseen difficulties with, for example, obtaining suitable accommodation, work and the relationship with Ms H. In this regard, however, the Court was impressed by the extent to which the mother had given detailed consideration to the practicalities of returning to live in City A, both for herself and Z. Moreover, Ms H also impressed the Court with her child-focused and grounded attitude, and her obvious love for the mother.
On balance, therefore, the Court is satisfied that any risk of harm to Z arising from his mother’s mental health is a manageable risk should he be permitted to relocate with her to City A because of the support system available there to both of them.
The risk of harm to Z arising from his mother’s mental health is a risk that subsists if the Court orders that he lives with his father in Sydney. Dr D explained that he would be distressed and experience guilt, powerlessness and a sense of abandonment. Nonetheless, his father would clearly be a significant support for him.
There is no evidence of any physical harm to Z. There is no evidence of abuse or neglect. There is evidence of family violence to which Z was exposed.
The issue of family violence needs to be carefully examined. The definition of family violence is found in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
(Emphasis in original)
There is evidence in this case of family violence as broadly defined in the Act. There is also evidence that Z was exposed to this in the sense that, at the very least, he experienced the effects of family violence on his mother.
The mother’s evidence about family violence as broadly defined above is set out at length in her affidavit. This evidence is detailed and expansive. It includes evidence of repeated derogatory taunts, denial of financial autonomy, unreasonably withholding financial support needed to meet reasonable living expenses, and preventing her from making or keeping connections with family and friends. This evidence is corroborated in part by the evidence of Ms O and Dr C. The mother was cross-examined extensively about these allegations. As it turns out, nothing turns on this for reasons set out below. Nonetheless the Court records that it found some of the mother’s evidence to be exaggerated as to some of the alleged facts, but not as to how she experienced the events in question, which clearly left her feeling demeaned and controlled.
The Court finds that the father’s denials in cross-examination about family violence, and the explanations proffered, were disingenuous. The clearest evidence in support of a finding of family violence is the father’s own admissions. His apologetic communications with the mother e.g. in the text messages that became exhibit R16 and his engagement in a behavioural change program for violent and controlling men called X Program, constitute clear admissions by him of, at the very least, his controlling conduct. The Court does not accept that the father was simply placating the mother.
The Court’s findings about family violence are unaffected by the reality that the father was not cross-examined about every allegation made against him. There is ample material before the Court, the provenance of which is the father, which enables findings to be made against him.
Once it is accepted that the father perpetrated the family violence referred to above, it becomes incongruent for the father to then suggest that the mother’s mental health issues present a risk of harm to Z, when her mental health issues were either caused by, or exacerbated by, his family violence. The evidence of Ms O and Dr C suggest that the mother’s mental health issues are attributable, or at least primarily attributable, to the father’s family violence. Even if the mother’s mental health vulnerabilities pre-existed the relationship, which seemed to be an important aspect of the father’s case, given an adverse finding of family violence it is both logical and plausible to infer that any pre-existing condition was exacerbated, at the very least, by that family violence.
In cross-examination Dr D acknowledged that sometimes it may take some time for a parent who has been subjected to verbal abuse and control to re-establish their competence as a parent. This was especially so in the present case where the mother has been living in the shadow of these proceedings and has had to deal with the father perhaps in a way that she has found inherently coercive in itself. The Court agrees. There is no doubt that the mother did experience these proceedings as coercive and controlling.

The opinion of Dr D was that Z was not exposed to any family violence. Nonetheless, the reality is that Z actively lived in the shadow of its consequences for some time, in the form of his mother’s exacerbated mental health issues. In s 4AB(3) of the Act all that is needed for a child to be exposed to family violence is that the child “otherwise experiences the effects of family violence”. Thus, exposure to family violence is neither physically nor temporally linear in nature.
COVID-19 is a risk of harm, but not an unmanageable one. Arguably, it is a risk of harm with which families simply need to live. It is not possible to find on the evidence before the Court that the risk in City A is either greater or lesser than the risk in Sydney, especially given the fluctuating and evolving nature of the disease. COVID-19 of course potentially raises practical issues about international travel, but to elevate these issues into matters of risk of harm to Z is an overreach. Dr D offered the (admittedly non-expert, but nonetheless sensible and plausible) view that the Australian border situation will probably synchronise with the United States reasonably quickly. It is possible that this has already occurred.
Additional considerations
The views of the child
Z’s views in this case are not determinative. He is caught in a high conflict parental separation. The Court notes the poignancy of Z declining to accept the invitation by Dr D to express his views. This amply signifies the impossible position in which he finds himself. Dr D described that as a very strong conflict of loyalty which is distressing to him. In any event, Dr D found Z to be a somewhat anxious, insecure, and slightly emotionally immature child, and this would reflect on the weight the Court would have placed on his views in any event.
Nature of child’s relationships
It is quite clear that Z has a good relationship with both his mother and father, although the relationship is different with each parent. This was noted by Dr D, for example, in his second report, where he described Z’s relationship with his father as being significantly more positive and unburdened than with his mother. Dr D described Z’s relationship with his mother as an anxious and insecure attachment. At the moment Z is probably emotionally supporting his mother, at least in part, through her mental health struggles. This dependent relationship is not necessarily a good thing, and Dr D suggests that this will be relieved by a return to City A.
In City A the mother has the benefit of her relationship with Ms H, and Z the benefit of the relationship with her son, Y. In this context, the latter relationship is an important one for Z and Y is probably the strongest friendship he has outside of family. Dr D describes this relationship as his best friend and longest friendship. They have maintained this close relationship by virtual means as a result of the commitment and ingenuity of both the mother and Ms H.
Z’s paternal grandparents live in South America, and his maternal grandparents in Country E. The Court had the benefit of evidence from both sets of grandparents. These are important relationships for Z and, in reality, are relationships much easier to maintain from City A due to geographical proximity. The maternal family is a strong support for both the mother and Z and they are clearly protective of him.
Both parents have re-partnered and the Court had the benefit of evidence from both. The mother’s relationship with Ms H is longstanding and established, even though they have not physically cohabited. The father’s relationship with Ms T (“Ms T”) has evolved much quicker and involves physical cohabitation. It is unusual that Ms T is not mentioned in the father’s first trial affidavit. Moreover he did not mention her in cross-examination during the first five days of the hearing. The father and Ms T tragically lost the child she was bearing after the evidence concluded.
Both Ms T and Ms H presented as impressive witnesses but in different ways. Ms H’s child-focus and sensitivity was exemplary and clearly reflects her extensive experience as a parent. She has an existing close relationship with Z which has been maintained virtually since his relocation to Sydney. She is committed to her relationships with the mother and Z. Ms T has less experience as a parent but presents as having an attitude and temperament that will well suit her to parenting. She will be an excellent support to the father in his parenting of Z. Z’s relationship with her is very new, however, and untested.
The extent to which each of the parents has taken, or failed to take, opportunities to participate in decision-making, or spend time, or communicate with the child
This consideration is not determinative and is, in any event, subsumed under issues of parental attitudes. The Court observes that if there were missed opportunities, or exclusions from joint decision-making, in the overall context of this case they make little difference to the outcome. The father’s contention that the mother played the role of gatekeeper in relation to Z’s time with his father is, firstly, hardly surprising given their relationship and the circumstances of their separation and, secondly, did not extend for any significant period of time given how quickly the proceedings were commenced and came before the Court.
The extent to which each of the child’s parents has fulfilled obligations to maintain the child
This was not an issue in this case. The father paid child support as assessed as well as paying for Z’s private school fees at a prestigious Sydney school.
The likely effect of any changes in the child’s circumstances
Change has many dimensions for a child. At the very least it can be physical change in terms of place and space, both of which are important to provide comfort, security, predictability and certainty for the child. Perhaps more significantly, change can be measured by reference to relationships which provide nurture and foster development from childhood to adulthood.
Dr D rated Z as a six out of 10 in terms of coping with change and suggested that the father was better able to cope with any changes about where child lives, as compared to the mother. This is consistent with the Court’s impression about the parents, but does not really address the issue from the child’s perspective.
Z presents as a resilient child. He adjusted quite well to a new life in Sydney, notwithstanding the maelstrom of his parents’ separation.
The evidence indicates that Z would miss his father if he lives with his mother in City A, and would miss his mother if he lives with his father in Sydney. He has a close and important relationship with both parents. The fact is, however, that Z has lived with his mother all of his life, whilst having the benefit of his father’s substantial involvement in his life. Z has never lived away from his mother for extended periods of time. Z has never lived with his father for extended periods of time other than during school holiday periods. From this perspective, much more change will be experienced by Z if he cannot return to City A with his mother. Indeed, Dr D spoke of Z experiencing a possible sense of abandonment that will not necessarily go away with maturity if his mother returns to City A without him. This would be a most unwelcome change from his perspective. Given the emotional burden that Z currently carries, it is possible that Dr D’s fears are more than a mere possibility.
It could not be said that Z has formed a relationship with his father’s partner that is going to have an adverse effect on him should he return to City A. In his father’s household change is also possible as both the father and Ms T have deposed to wishing to fall pregnant again. The potential significance of this on Z cannot be minimised.
It is more likely than not that for Z, he is returning to a familiar environment in City A, his hometown. It was common ground between the parents that he will return to school where he previously attended. It is inevitable that after two years, there will have been changes. Nonetheless, his best friend Y will still be there, as will his mother and Ms H.
Of course, there will be less change in one sense if he remains in Sydney. He will remain close to his father, and remain at school where he has attended since arriving in Australia. The one certainty is that his mother will not be present. This is the biggest change in his circumstances, and which indicates that City A is the better option.
At one point in his evidence Dr D spoke of the risk that the mother, who had hitherto been consistently supporting the relationship between father and son, would cease to do so on return to City A. Ultimately he agreed that this was mere speculation and that it was equally likely that on return to City A the mother would support the relationship even more. In any event the Court cannot discern from the evidence any suggestion that a return to City A somehow increases the risk of diminished maternal support for the paternal relationship.
Issues of practical difficulty and expense
It is self-evident that Z will need to undertake considerable travel in order to maintain a relationship with the parent with whom he does not live.
The father’s case emphasises the uncertainty brought about by COVID-19 in terms of travel arrangements. That is undeniable. The impact of this pandemic is unpredictable, and the situation seems to change on a daily basis. The reality of this uncertainty is something with which the parents will have to live, and it cuts both ways as COVID-19 could strike at any time irrespective of whether Z is with his mother in City A, or his father in Sydney. The reassuring thing is that both parents are able to meet his needs should that happen. The unpredictability of COVID-19 is not a factor that contraindicates the making of any order.
The father’s case that he only has four weeks of annual leave, does not have unlimited financial capacity, and has aspirations to parenthood, are all relevant considerations. Dr D was sceptical about the father’s contended inflexibility of his employment arrangements. The Court shares this scepticism. The father’s assertion is inconsistent with his own enterprise bargaining agreement which, in substance, gives him five weeks of annual leave as well as public holidays, access to flexible work arrangements, as well as long service leave. The father’s assertion ignores the fact that historically the father has travelled extensively in the course of his employment, including attendance at conferences. Neither parent has unlimited financial capacity, but that does not mean they cannot afford to implement the proposals that they have each advanced.
The parents have travelled extensively in the past, as has Z. They seem to have the financial means to have done so, and in all likelihood to continue to do so.
Issues of communication do not present as being substantial ones. This is a family well-versed in the nuances of transcontinental electronic communication. Z seems to have kept his relationship with his best friend Y entirely by electronic means. The diversity of the activities undertaken between the mother and Ms H, Ms H and Z, and Z and Y, gives a snapshot of what can be achieved long-distance. The father may well have told Dr D that he finds FaceTime artificial, but that perhaps suggests he needs to develop some skills in this regard.
The available evidence (pages 64–65 of exhibit R40) indicates that the time difference between Sydney and City A appears workable from an electronic communication perspective. The Court accepts the submission made on behalf of the mother that communication is slightly more practicable if Z is living in City A rather than in Sydney.
The focus of this consideration is maintaining relationships over a distance. This is a product of the actual time proposed as well as the practical issues associated with implementing that time.
If Z is living with his father in Sydney, his mother proposes that he spend time with her outside of Australia for the whole of the Terms 1 and 2 school holiday periods. At the school he currently attends, this amounts to approximately six weeks. In Year 1, he would also have the entirety of the Term 4 summer holiday period with his mother, outside of Australia. In Year 2 it would be four weeks at the end of Term 4 holidays. For Z this would entail travelling overseas and returning at least four times annually, but he would be able to spend up to 14 weeks with his mother somewhere outside of Australia.
If he is living with his mother in City A, however, he would spend time with his father as follows. Prior to international travel restrictions being lifted, for four consecutive weeks during the summer break and either the spring break in odd-numbered years (about one week) or the Christmas school holiday period in even-numbered years (about two weeks), as well as up to 10 weeks during the school term. After international travel restrictions are lifted, it would be for up to six consecutive weeks during the summer break and either during the spring break in odd-numbered years (about one week) or Christmas school holiday period in even-numbered years (about two weeks), in addition to the 10 weeks during the school term. She proposes therefore that he eventually spends time with his father for up to 17 weeks in one year, and 18 weeks in the alternate year.
On the other hand, the father proposes that if Z remains in Sydney with him, he would spend time with his mother as follows: for the whole of the Term 1 and Term 3 school holidays (totalling approximately six weeks) and half of the Term 2 and Term 4 school holidays (totalling approximately five to six weeks). This would mean Z spends about 11–12 weeks with the mother each year, either in Australia or overseas.
If he relocates to City A with his mother, his father proposes that he spend time with him for 35 consecutive days during the summer school holiday break and for 14 days during the Christmas school holiday break, meaning Z would spend at least seven weeks with his father each year.
On the Independent Children’s Lawyer’s proposal, Z would relocate to City A with his mother and spend 35 consecutive days during the summer school holiday break and 14 days during the Christmas school holiday break with his father. In the event the father is able to travel to spend time with Z in City A, the time would be extended by an additional 14 consecutive days during the spring holiday break and up to 10 weeks per year. The Independent Children’s Lawyer’s proposal therefore provides for Z to spend at least seven weeks with the father each year, and up to 19 weeks should the father be able to travel to City A.
From Z’s perspective, maintaining his relationship with both his mother and father is critically important. The importance of this overshadows matters of inconvenience and cost. He is already a well-travelled child. None of the proposals substantially affect his right to maintain these important relationships.
Parental capacity to provide for the needs of the child
This was an issue in this case. Concerns arising from the mother’s mental health have already been addressed in the context of risk of harm above. The nature of Z’s relationship with both parents has been explored. The Court accepts that there is an issue about the mother’s ability to meet Z’s emotional needs. The Court is satisfied from the evidence, however, that the mother’s capacity in this regard is likely to improve if she can return to City A with him. It must be remembered that the mother is no stranger to sole-parenting Z even during times when she suffered from mental health issues that were known to the father before they relocated to Australia. She cared for Z alone when the father was in Australia and she was in City A. She did so during his frequent work-related travels before separation. Implicit in the father’s proposals for time with the mother is an acceptance that she has the requisite capacity to meet his needs, even during extended periods overseas.
Both parents have done things, indeed quite recently, which suggest that they failed to prioritise Z’s interests over their own. The way in which the mother told him about her relationship with Ms H, and the way in which the father told him about his relationship with Ms T, are not exemplars of sensitivity and insight or the ability to provide for emotional needs. Of course it must be remembered that litigation always shines the spotlight on occasional failures and insensitivity, and not the day-to-day sensitivity, insight, and prioritisation of the child’s needs.
Apart from the mother’s mental health, the Court discerns no real differentiation between these parents in terms of their capacity to meet the child’s needs. They are both capable parents, whether parenting in Australia or the USA.
Maturity, sex, lifestyle and background of the parents and the child and other characteristics of the child that the Court thinks relevant
There are certainly strengths and weaknesses in relation to this factor.
Z will have the benefit of the diverse and rich cultural backgrounds of his parents. His father is of South American descent, and his mother of Country E descent.
His parents are highly intelligent and clearly value education, and thus he will receive the benefit of this.
Z is already a well-travelled child, and it is highly likely that he will continue to benefit from this.
Z presents as a resilient child.
Both parents clearly have his wellbeing and best interests at the forefront of their minds most of the time.
Regrettably, litigation often brings out immaturity and self-focus even with the best of parents. Dr D made the following observation at page 29 of his first report:
Both parents are very voluble but in different ways, and it is clear from both accounts that their relationship was quite volatile, with each blaming the other for being belligerent and intransigent. In the case of the father, he spoke expansively, persuasively and with apparent confidence, but I think he has the capacity to be autocratic, relentless and overbearing, as the mother alleges.
These observations certainly accord with the Court’s own impression of the parents having observed them closely over the course of the hearing. The volubility of the parents may well extend to other interpersonal relationships. There was, for example, evidence of the mother previously experiencing interpersonal difficulties with work colleagues and friends. There is contrasting evidence, however, of the mother’s close network of friends in City A with whom she shared an association to the school that Z attended.
In his second report at page 16, Dr D noted the very poor and distrustful nature of the parents’ relationship which caused Z stress in attempting to keep the peace between them. Nonetheless, Dr D was confident that this would settle when the Court case finalised. The Court agrees both with the observations, and the confidence that these issues should settle on the conclusion of the litigation.
The attitudes to the child and to the responsibilities of parenthood
Both parents can be relied upon to follow Court orders. Indeed, the mother has gone beyond the orders to provide further contact and communication with the father. This reflects positively on both their attitudes towards Z, and to their responsibilities as parents.
The key issue in this case is whether each parent will support Z’s relationship with the other. It was not a discernible part of the mother’s case that the father would not do so. Indeed the Court is satisfied that he can be relied on to support his relationship with his mother under any circumstances.
It was a part of the father’s case that the mother would not do so if she were allowed to return to City A. He submitted that, for example, a close examination of the mother’s conduct, both in terms of actions and omissions, would raise concerns about the priority that she places on the father’s relationship with Z. The Court accepts that there are multiple examples from the evidence of the mother expressing her antipathy towards the father, but this conduct cannot be examined or understood otherwise than in the context of her experience of the family violence perpetrated by the father. The Court has found that the mother was the victim of family violence perpetrated by the father, in the form of abusive and controlling behaviour. The focus needs to be on the mother’s actions, rather than the attitudes that she held about the father. In this regard, an objective review of the evidence demonstrates that at all relevant times the mother did support the relationship between Z and his father. She complied with all orders in relation to time and communication, and then during the 2021 COVID-19 lockdown she agreed to extend this time, notwithstanding her antipathy towards the father. It must be remembered that there is no evidence in this case to suggest that any antipathy the mother felt towards the father was manifested in the presence of Z, or that he somehow assimilated his mother’s feelings, or that he said or did anything to suggest that this was the case. Indeed, in evidence were the notes prepared by Dr C during the mother’s consultations with her. These notes clearly indicate that the mother was able to hold together two seemingly inconsistent notions: on the one hand, her anger towards the father, and on the other, a clear recognition of the importance to Z of the relationship with his father. That the mother was able to achieve this reflects very positively on her insight into the difference between her need to be totally independent from the father, and Z’s needs to have the father meaningfully involved in his life.

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 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, if Z is in the USA, each Sunday, Wednesday and Friday between 6pm and 8pm (City A time) or if Z is in Australia, each Sunday, Wednesday and Friday between 7.30am and 9.00am (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 or while in the Father's care in the USA 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.

23. That the parties forthwith do all acts and things necessary to download and utilise the parenting mobile application "Our Family Wizard" for the purposes of communicating with respect to parenting matters, and the parties share equally the costs associated with same.
Property Orders
24. That an order by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975 (Cth) (the Act) be made to address the consequences of the breakdown of the marriage and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
Bank accounts
25. That within 21 days of the date of these Orders, the Husband shall do all acts and things necessary to transfer into an account nominated by the Wife in writing within 7 days of the date of these Orders, the balance of the following accounts in the Husband's sole name:
25.1.Westpac Account #...87;
25.2.CBA Account #...47; and
25.3.FF Fund Account #...30.

26. That within 42 days of the date of these Orders, the Husband and the Wife shall do all acts and things, and sign all documents necessary, to close the following accounts, with the balance of AA Bank account #...98 and BB Trading account #...85 to be deposited into an account(s) nominated by the Wife in writing within 7 days of the date of these Orders:
26.1.AA Bank account #...98;
26.2.GG Bank account #...18;
26.3.HH Trading account #...71;
26.4.FF Fund account #...84;
26.5.FF Fund (Savings) #...95;
26.6.BB Trading Account #...85; and
26.7.JJ Bank savings account #...05 (if the account is confirmed to be in joint names).

27. For the purpose of Order 26:
27.1.Within 14 days, the Husband shall provide the Wife with all documents necessary to close the accounts outlined in Order 26 (the required documents);
27.2.Within a further 7 days, the Wife shall sign the required documents and return copies of same to the Husband;
27.3.The Husband shall thereafter sign the required documents and lodge copies of same with the relevant financial institutions; and
27.4.Within 7 days of receiving conformation from the relevant financial institutions that the accounts have been closed, the Husband will provide the Wife with copies of the written confirmation(s).

Super Fund 1 Account #...26
28. The Husband do all acts and things, and the Wife sign all documents necessary to transfer to the Wife's FF Fund account #...09 a sum calculated to provide the Wife with 65% of the overall net pool available for division (including superannuation) from the Husband's interest in the Super Fund 1 Account #...26 ("Super Fund 1 Account") and for this purpose:
28.1.the Wife engage a family lawyer in City A to do all acts and things necessary to draft a Qualified Domestic Relations Order ("QDRO");
28.2.the Wife provide to the Husband all documents required to be signed by him to obtain and give effect to the QDRO, and the Husband sign and return them to the Wife within thirty (30) days of receipt by him;
28.3.thereafter the Wife do all acts and things necessary to file the QDRO with the appropriate Court in B State; and 28.4 the parties share equally the costs associated with obtaining the QDRO, including legal fees in relation to same.

29. Within 14 days, the Husband provide a copy of these QDRO Orders to Super Fund 1.
30. Each party has liberty to apply to the court with respect to Order 28.
31. Pending the transfer of the sum payable to the Wife pursuant to Order 28, the Husband is hereby restrained by himself, his servants or agents from dealing with or doing any other act or thing which would impact on the Wife's entitlement to the Super Fund 1 account without the Wife's prior written consent.
Historical Taxation Returns in the USA
32. Within 14 days, the Wife shall instruct KK Lawyers to:
32.1.Prepare draft amended joint tax returns in the USA for 2016, 2017 and 2018 ("the relevant periods"); and
32.2.Thereafter, provide copies of the draft returns for the relevant periods to the Husband or the Husband's appointed representative for review and approval.

33. For the purpose of Order 32:
33.1.Within 28 days, the Husband shall provide all source documents necessary to comply with disclosure and reporting requirements required by the IRS and US Department of Treasury (including but not limited to past tax returns, bank account statements, W-2 forms, 1099 forms and all similar tax source documents) for the relevant periods to KK Lawyers;
33.2.Each party shall comply with any requests for further information sought by the KK Lawyers or the Husband's appointed representative within 14 days of any such request being made; and
33.3.The Wife shall instruct KK Lawyers to prepare and submit all necessary Foreign Bank Account Report forms (FinCEN Form 114) in the Wife's name for all the relevant periods.

34. Following approval by the parties of the proposed draft amended tax returns, KK Lawyers shall thereafter file the joint amended tax returns for all the relevant periods and provide copy of same to Husband or the Husband's appointed representative; and
35. The parties shall share any unpaid tax or penalties for the relevant periods.
2020/2021 taxation returns in the USA
36. Within 28 days of taxation documents relating to the 2020 and 2021 financial years and all future financial years for as long as the parties retain any joint financial interests and obligations (including but not limited to W-2 forms, 1099 forms and all other similar tax source documents) being made available to the Husband for each account in the parties' joint names, the Husband provide copies of same to the Wife so that she can prepare her income taxation returns in the USA.
General Orders
37. That, subject to the above Orders, the Husband shall retain all interest in and entitlement to:
37.1.The following accounts:
37.1.1.CBA account #...39;
37.1.2.Westpac account #...64;
37.1.3.DD Fund account #...18;
37.1.4.CC Fund Plan #...07;
37.1.5.EE Fund Account #...35.

37.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively and all interests in life insurance policies and superannuation funds standing in his sole name respectively;
37.3.All personal and real property now in his respective possession or control, including, but not limited to the Motor Vehicle 1 vehicle registered in the Husband's name.

38. That subject to the above Orders, the Wife shall retain all interest in and entitlement to:
38.1.The following accounts:
38.1.1.Westpac accounts #...51, #...31, #...28 and #...02; and
38.1.2.PP Bank #...27.

38.2.All personal and real property now in her respective possession or control, including, but not limited to the Motor Vehicle 1; and
38.3.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively and all interests in life insurance policies and superannuation funds standing in her sole name respectively.

39. That each party is hereby declared solely liable for all liabilities in his/her sole name respectively and shall indemnify and keep indemnified the other party in respect of same.
40. That both the Husband and the Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
41. That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
42. That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
43. That the parties are granted leave on seven days' notice to the Court and to the other party to relist the matter for further Orders or Directions to implement these Orders.
Spouse Maintenance
44. If the Wife is living in Australia, pursuant to section 74 of the Family Law Act 1975, the Husband shall pay, or cause to be paid to the Wife, as she may direct in writing:
44.1.The sum of $1,500 per week by way of cleared funds, directly into a bank account nominated by the Wife; and
44.2.Private health insurance for the Wife with LL Insurance or such other insurer as nominated by the Wife from time to time, at no lower than the top comprehensive family cover available for private hospital and "extras" insurance.

with such payments to continue until the Wife obtains full time employment.
45. If the Wife is living in the USA, pursuant to section 74 of the Family Law Act 1975, the Husband shall pay, or cause to be paid to the Wife, as she may direct the sum of $1,080 per week by way of cleared funds, directly into a bank account nominated by the Wife and such payments shall continue for a period of 12 months or until the Wife obtains full time employment, whichever is the earlier.
Child Support departure
46. That pursuant to section 123(1 )(a) and 124 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by the Applicant Father to the Respondent Mother for the Child Z ("the Child") born on … 2011 such that the Applicant Father shall pay 100% of the following expense for the Child as and when they fall due:
46.1.Education expenses, including tuition fees for the Child's enrolment at either MM School or NN School in City A or such other independent school as the child may attend from time to time;
46.2.Extracurricular expenses, including but not limited to piano lessons.
46.3.School uniforms, including sports uniforms for the Child and sporting requisites.
46.4.Excursions and/or school camp levies for the Child.
46.5.Books, stationery, materials and texts for the Child.
46.6.Computer requisites and/or levies as required by the Child's school.
46.7.Health insurance and medical, dental, orthodontic, physiotherapy, psychology and other health related expenses including gap payments for the Child.

47. The payments made by the Applicant Husband pursuant to these Orders shall not be credited against any child support administrative assessment issued by the Department of Human Services (Child Support) but shall be in addition to any amount payable by way of administrative assessment.
48. That in the event any of the costs referred to in Order 46 above are paid by the Respondent Mother in the first instance, the Respondent Mother shall provide an invoice to the Applicant Father and the Applicant Father shall reimburse the Respondent Mother within fourteen days of receipt of same into a bank account nominated by the Respondent Mother from time to time.
49. That the Husband pay the Wife's costs of and incidental to this application.
Respondent’s Further Amended Alternate Minute
ANGELI & FARINA
FURTHER AMENDED ALTERNATE MINUTE OF ORDER
RESPONDENT MOTHER
In the event Z is living with the Father, the Mother seeks the following Orders:
1. Z spend time with the Mother as follows:
a.For the whole of the short school holiday periods at the conclusion of Terms 1 and 2 ~~between Term 2 and Term 3 at the school Z attends to be spent~~ at a location nominated by the Mother outside of the Commonwealth of Australia;
b.In Year 1, for ~~6 weeks of the~~ the entire school holiday period at the conclusion of Term 4 at a location nominated by the Mother outside of the Commonwealth of Australia, with the time to include Christmas Eve, Christmas Day, New Year’s Eve, the Mother's birthday on … and the long holiday weekend of Martin Luther King (MLK) Day in America (noting that MLK Day falls on the third Monday in January each year);

c. In Year 2:
i.For the last four weeks of the school holiday period at the conclusion of Term 4 at a location nominated by the Mother outside of the Commonwealth of Australia, noting that during this school holiday period Z will spend time with the Father on Christmas Eve and Christmas Day; and
~~ii.For the whole of the school holiday period at the conclusion of Term 1 at a location nominated by the Mother outside of the Commonwealth of Australia.~~

d.For the purpose of these orders, Year 1 is the first Christmas holiday after final orders come into effect.
e.The Mother may elect to spend a period of 2 additional weeks each year with Z in Australia during school term, which may increase to a period of up to 4 weeks depending on the Mother's leave entitlements on the condition that the Mother provides the Father with 4 weeks written notice of the dates she elects for Z to spend with her in Australia, and the period may include Z's birthday in each alternate year commencing in Year 2.
f.By way of facetime each Wednesday and Friday between 7.00am and 8.15am (Sydney time) or alternatively, if the call is to take place between the end of the Australian DST (April) and the start of the Australian DST (October), between 8pm and 8.30pm (Sydney time); and
g.By way of facetime each Sunday between 7.00am and 10.00am (Sydney time) or alternatively, if the call is to take place between the end of the Australian DST (April) and the start of the Australian DST (October), between 8pm and 8.30pm (Sydney time).
h.Such other times by agreement between the parties.

2.For the purposes of Orders 1(a) to (c), changeover take place at an international airport nominated by the Mother on condition that the Mother provide the Father with 8 weeks written notice of the changeover location.
3.In the event Z is spending time with the Mother in Australia, changeover take place as agreed between the parties and failing agreement at Z's school or otherwise at the Father's residence.
4.Z be permitted to call the Mother at any reasonable time.
5.The Mother retain Z's Country E passport.
6.That the Mother make all travel arrangements for Z’s trips outside of the Commonwealth of Australia when Z is to spend time with the Mother and that the father reimburse the Mother for half of the travels costs for Z’s time in Orders 1(a), (b), (c) within 30 days after receiving the mother’s invoice.
7.That the father accompany Z in accordance with Orders 1(a), (b) and (c) until he reaches 15 years of age and that the Father meet his own travel costs or pay for unaccompanied minor.

8.That the mother meet the costs of travel in 1(e).

SCHEDULE C
Minute of Order Proposed by the Independent Children’s Lawyer
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEY File No.   SYC5377/2019
BETWEEN   MR ANGELI
Applicant
AND  MS FARINA
Respondent
AND   INDEPENDENT CHILDREN'S LAWYER
MINUTE OF ORDER PROPOSED
BY THE INDEPENDENT CHILDREN’S LAWYER
1.That all prior Orders be discharged.
2.That the Mother and Father have equal shared parental responsibility for the Child Z (Z) born on … 2011.
3.That Z live with the Mother.
4.That the Mother be permitted to relocate with Z to City A, B State in the United States of America (USA) on a permanent basis no earlier than 21 January 2022.
5.That Order 4 be conditional upon:
(a)   The Mother obtaining an exemption to travel by the Department of Home Affairs;
(b)   The Mother having received two doses of the Covid 19 vaccine herself and;
(c)   The Mother ensuring that Z has received two doses of the Covid 19 vaccine, if available to children under the age of 12 before 21 January 2022.

Arrangements for the Father’s Time
11. Provided both parents have received a Covid19 vaccine, Z spend time with the Father by agreement between the parties and failing agreement as follows:
(a)35 consecutive days during Z’s summer school holiday break (occurs between May and August) and in odd numbered years this period may include Z’s birthday in Australia;
(b)14 consecutive days to commence during Z’s Christmas school holiday break with this period to include Christmas Day in even numbered years in Australia, noting that in even numbered years Z will return to school after the commencement of the January school term;
(c)At such other times as the parties may agree in writing.

12.For the purpose of Order 11 and in the event that any requirements for quarantine remain in place at the time of travel, the time Z is to spend with the father is not to include any periods of time that Z must spend in quarantine in either Australia or the USA.

Additional Time Subject to the Father’s Availability
13.In the event that the Father is able to travel to City A, B State and has received a Covid 19 vaccine provided he has complied with Order 21, the Father shall spend time with Z:
(a) For 14 consecutive days including Z’s spring holiday break (occurs in April) in the United States;
(b) During school terms, by agreement between the parties, and failing agreement for up to 10 weeks per calendar year provided that:
(i)In the event the Father elects to spend a block period of up to 14 days, then Z spend time with the Father uninterrupted for that period;
(ii)In the event the Father elects to spend a block period exceeding 14 days, then Z spend time with the Mother during that period each alternate weekend from after school Friday until before school Monday with the first weekend occurring after the first full weekend of time spent with the Father noting that the purpose of this Order is to ensure that Z is not spending extended periods away from the Mother during term time; and
(iii)The nominated time occurs during Z's school term including weekends (with the exception of Order 16(b)(i)) and does not take place during any other holiday or school free days (including long weekends) unless otherwise agreed between the parties;
(iv)There is a seven day period where Z is in the mother’s care between exercise of any term time block and any holiday block.

Changeover
14.Unless otherwise agreed, in the event Z is spending time with the Father in Australia, changeover take place as agreed between the parties and failing agreement at Sydney International Airport or City A International Airport and shall occur in accordance with Order 31.
15.Unless otherwise agreed, in the event Z is spending time with the Father in City A and 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.
16.Z will be returned to the Mother by the Father in accordance with Orders 14 and 31 by no later than 24 hours prior to commencement of school term.

Communication
17.While Z is living with the Mother, in the United States of America, the Mother will 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 three days each week at such times as agreed between the parties, and failing agreement each Sunday, Wednesday and Friday during between 5:30pm and 7:30pm (City A time), and for that purpose;
(a)The mother and the father will each do all things necessary to ensure each has in place the necessary technology to enable Facetime and Skype communication between Z and the Father; and
(b)The Mother will allow Z a space within her residence so that communication between Z and the Father can occur without interruption.

18.In the event Z is spending time or living with the Father in Sydney, Australia, in accordance with these Orders, the Father will 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 on no less than three days each week at such times as agreed between the parties, and failing agreement up to thirty (30) minutes each Wednesday and Friday between 7:00am and 7:45am and each Sunday between 8:00am and 10:30am (Sydney time) during school term; and each Wednesday, Friday and Sunday between 8:00am and 10:30am (Sydney time) during school holidays when:
(a)Both parties will 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
(b)The Father will allow Z a private space within his residence so that communication between Z and the Mother can occur without interruption.

19.In the event that the Father’s birthday, Z’s brothers birthday and the Mother’s birthday do not fall within Order 17, Z will have electronic communication on these dates in accordance with Order 17 and 18.
20.During periods both parents are in Australia, the mother and the father will each facilitate Z having communication with the other parent when he is in their care 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 at such times as agreed between the parties, and failing agreement between 6pm and 7pm on each day Z is not spending time with the other parent and for that purpose:
(a)The mother and the father will each do all things necessary to ensure each has in place the necessary technology to enable Facetime and Skype communication between Z and the other parent; and
(b)The mother and the father will allow Z a private space within their residence so that communication between Z and the other parent can occur without interruption.
(c)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.

Notification Provisions
21.For the purposes of Orders 11 and 13, the Father will nominate the dates and give the Mother at least 12 weeks' notice in writing of his nominated travel dates.
22.Each party will keep the other party advised in writing at all times of their residential address, the names of other people residing at this address, contact telephone number and Skype/FaceTime details by which Z may communicate with the other parent.
23.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.
24.The Father will authorise and take the necessary steps to facilitate:
(a)Any medical practitioner upon which Z may attend from time to time, to communicate with the Mother in respect to Z's medical condition and/or requirements, and

25.The Mother will authorise and take the steps necessary to facilitate:
(a)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
(b)Any school (including any extracurricular activity) at which Z may attend from time to time to:
(i)Provide the father copies of all school reports, school notices and school photographs in relation to Z; and

(j)Communicate with the father, either by telephone, in writing or other electronic means in respect to Z's progress at his school as well as all other school related matters.

26.For the purposes of Order 25, the Father be entitled to attend and fully participate in all and any activities at the school/s or connected with the school/s at which Z will attend, to which the Parents, or Parents generally are invited to attend or participate, irrespective of whether Z is in his care at the time.
27.For the purposes of Order 25, the Father be entitled to attend and fully participate in all extra curricular activities Z is enrolled in to which parents generally are invited to attend or participate, irrespective of whether Z is in his care at the time.

Costs Associated with Travel
28.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 breaks 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.
29.The Father 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 Christmas school holiday period, when the Father 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.
30.The Father will be responsible for meeting the costs of his travel to the United States for the purposes of spending time with Z in accordance with these Orders and will provide the Mother with a copy of his travel itinerary by no later than 28 days prior to the Father’s arrival.
31.Until Z has attained the age of 15 years, Z must travel with a parent, or be accompanied by a third party nominated by the parent making the travel arrangements 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 these Orders.

Passports and Visa Arrangements
32.The Mother hold the Z’s passports and shall ensure that Z travels with his passport for the purposes of Orders 11.
33.The Mother shall ensure that Z’s American and Country E passports (the passports) remain valid and for this purpose:
(a)Within 7 days of Order, the Mother provide a completed American and Country E passport application to the Father (passport applications), and within a further 7 days, the Father returned signed copies of the passport applications to the Mother. The Mother will thereafter lodge the passport applications, with the parties sharing the costs associated with renewing the passports;
(b)The Mother shall begin the application procedure for their renewal 12 months prior to their expiration and provide the relevant documentation including signed copies of the passport applications/s to the Father for completion and signature;
(c)The Father shall provide all duly completed and signed paperwork to the Mother promptly and no later than 1 months after being provided with the application;
(d)The Mother shall then lodge the application within 1 month of receiving the signed documents;
(e)The parties shall share the costs associated with renewing the passports.

34.The Father be responsible for making arrangements and meeting the costs of Z’s travel visas to Australia at all times if they are required.
35.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.

Restraints
36.Each party be restrained from:
(a)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;
(b)Discussing these proceedings, including the contents of any document filed by or on behalf of either parent, with Z; and
(c)Showing Z any documents filed by or on behalf of either parent.

Family Law Watchlist
37.That the Family Law Watchlist Order made on 16 October 2019 be discharged.
38.That the parties do all things and sign all documents as may be required to request Australian Federal Police to remove the name of Z born … 2011 from the Family Law Watchlist.
39.That the parties and the Independent Children’s Lawyer are granted leave to provide a copy of Dr D Reports dated 20 December 2019 and 9 September 2021 to the following:
(a)Dr F (mother’s medical general practitioner)
(b)Dr C (mother’s clinical psychologist)
(c)Ms K (mother's therapist)
(d)Ms O (mother's therapist in City A)
(e)Ms L ( fathers consultant)
(f)Ms N (child’s therapist)
(g)Ms P (family therapist)

40.That the parties and the Independent Children's Lawyer be granted leave to provide a copy of any Reasons for Judgment and Orders made by Justice Altobelli to Ms N and P (or such other child or family therapist upon which either Z or the parties may attend upon as agreed in writing between the parties).
41.That following release of Orders and reasons for judgment, that the parties engage in confidential family therapy by electronic means with Ms P or such other family therapist as may be agreed between the parties in writing for a period of at least 6 months or as otherwise agreed between the parties in consultation with Ms P.
42.For the purpose of Order 41:
(a)appointments will be scheduled as soon as practicable after judgment is delivered;
(b)each party will meet their own costs of attendance upon Ms P and half the costs of any joint sessions noting that the parties shall initially meet with Ms P individually and will thereafter consider recommendations made by Ms P in relation to how such sessions may best be conducted.
(c)the parties will use their best endeavours to encourage their respective partners to participate in such therapy as recommended by Ms P.
(d)16.4 the parties shall not be permitted to subpoena the family therapy files or notes.

43.The Independent Children’s Lawyer shall be discharged after she has met with Z in the presence of Ms N in Order to advise him of the outcome of these proceedings.
44.Within 28 days of the making of these Orders, the Mother and the Father shall pay the amount of $9560.75 to Legal Aid NSW being the costs of the Independent Children’s Lawyer.

File number(s):	SYC 5377 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	9 December 2021
Catchwords:	FAMILY LAW – PARENTING – International relocation – Where mother seeks to relocate to the United States of America with the child – Where the father opposes the relocation application – Consent orders made for equal shared parental responsibility – Mental health of the mother – Findings that the mother’s mental health was caused by or exacerbated by family violence in her relationship with the father – Order made permitting child to relocate with the mother and to spend time with the father. FAMILY LAW – CHILD SUPPORT – Application to depart from administrative assessment of child support – Future financial circumstances of the parties so unclear that the Court cannot be satisfied as to the presence of any factor in s 117 of the Child Support (Assessment) Act 1989 (Cth) – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC Child Support (Assessment) Act 1989 (Cth) s 116, s 117
Cases cited:	AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Carlson & Fluvium [2012] FamCA 32 Champness & Hansen (2009) FLC 93-407; [2009] FamCAFC 96 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders [2007] FamCA 102 Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170 Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209 Taylor v Barker (2007) FLC 93-345; [2007] FamCA 1246 U v U (2002) 211 CLR 238; [2002] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	125
Date of last submission/s:	23 September 2021
Date of hearing:	7-14 May 2021, 13-16, 23 September 2021
Place:	Sydney
Counsel for the Applicant:	Mr Schonell SC
Solicitor for the Applicant:	Broun Abrahams Burreket
Counsel for the Respondent:	Ms Christie SC
Solicitor for the Respondent:	Lander & Rogers
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 5377 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ANGELI Applicant
AND:	MS FARINA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	9 DECEMBER 2021