Armin & Kisho - [2022] FedCFamC1F 972

Federal Circuit and Family Court of Australia
(DIVISION 1)
Armin & Kisho [2022] FedCFamC1F 972

File number: MLC 11988 of 2018

Judgment of: CARTER J

Date of judgment: 8 December 2022

Catchwords: FAMILY LAW – CHILDREN – international relocation – where the mother seeks to relocate to Country B – whether Australian parenting orders can be registered or enforced in Country B – allegations of sexual abuse perpetrated by the father – unacceptable risk considered – allegations of poor mental health and alcohol misuse by both parties – where relocation not permitted – whether orders permitting travel to Country B for holidays are in the best interests of the children – whether the mother presents a flight risk – appropriate amount of surety.

Legislation:
Evidence Act 1995 (Cth) ss 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 69ZW

Hague Convention on the Civil Aspects of International Child Abduction 1980 Art. 21

Cases cited:
A & A: Relocation Approach [2000] FamCA 751

Adamson & Adamson [2014] FamCAFC 232

AMS v AIF [1999] HCA 26

Beckham & Desprez [2015] FamCAFC 247

Fitzwater & Fitzwater[2019] FamCAFC 251

Godfrey v Sanders [2007] FamCA 102

Heath v Hemming (No 2) [2011] FamCA 749

Isles & Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

KB & TC [2005] FamCA 458

Keane & Keane [2020] FamCA 99

Line & Line (1997) FLC 92-729

M & M (1988) 166 CLR 69

Mazorski v Albright [2007] FamCA 520

McCall v Clark [2009] FamCAFC 92

H & Miles [2007] FamCA 1230

MRR & GR [2010] HCA 4

Oberlin & Infeld [2021] FamCAFC 66

Taylor v Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 1 First Instance

Number of paragraphs: 682

Date of last submission: 16 September 2022

Date of hearing: 27 – 29 April 2022
2 – 5 May 2022
6 – 7 June 2022
19 August 2022

Place: Melbourne

Counsel for the Applicant: Mr Andrew Combes

Solicitor for the Applicant: Rowan Skinner & Associates Lawyers

Solicitor for the Respondent: Mr Patrick Mulligan, Mulligan Lawyers

Counsel for the Independent Children's Lawyer: Dr Renata Alexander

Solicitor for the Independent Children's Lawyer: Macgregor Barrister & Solicitors
ORDERS

MLC 11988 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KISHO

Applicant

AND:
MR ARMIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CARTER J

DATE OF ORDER:

8 December 2022

THE COURT ORDERS THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the children X born 2008 (“X”) and Y born 2012 (“Y”) (collectively referred to as “the children”).

X
2.For the balance of 2022, X live with the mother and spend time with the father each alternate weekend from the conclusion of school Friday (or 9.00 am if a non-school day) to the commencement of school Monday (or 9.00 am Tuesday if Monday is a non-school day).
3.Subject to compliance with Order 24 herein, from the commencement of the school year in 2023, X shall live with each of the parties on a week-about basis during school terms, with changeovers to occur each Friday.

Y
4.For 2022 and 2023, Y shall live with the mother.
5.Until the commencement of the school year in 2024, Y shall spend alternate weekends with the father, during school terms, from the conclusion of school Friday (or 9.00 am if a non-school day) to the commencement of school Monday (or 9.00 am Tuesday if Monday is a non-school day), with such alternate weekend to coincide with X’s time with the father.
6.Subject to compliance with Order 25 herein, from the commencement of the school year in 2024, Y shall live with each of the parents on a week-about basis, during school terms, with changeovers to occur each Friday and with such time to coincide with X’s time with the father.
7.Until the commencement of Y’s time with the father in 2024, the paternal grandmother, paternal grandfather, paternal aunt, or such other agreed person, shall be in substantial attendance during any time Y is sleeping overnight in the father’s care.

School holidays
8.For the long summer holidays in 2022/2023;
(a)X shall spend time with the father for three weeks, at times agreed; and
(b)Y shall spend time with the father for four consecutive nights in each of the three weeks that X spends with the father, at times agreed.

9.Commencing in the Term 1 school holidays in 2023, the children shall spend half of each school term holiday period with each of their parents at times agreed, and failing agreement the father shall have the first half and the mother the second half, with changeovers to occur at 6.00 pm on the middle Saturday.
10.Commencing 2023/2024, and subject to the children’s travel to Country B as provided for in Order 26 herein, the children shall spend half of the long summer holiday period with each of their parents at times agreed.

Special occasions
11.The children shall spend the Father’s Day weekend with their father, from the conclusion of school Friday to the commencement of school Monday.
12.The children shall spend the Mother’s Day weekend with their mother, from the conclusion of school Friday to the commencement of school Monday.
13.The children shall spend time with the parent who would not otherwise spend time with the children on the children’s birthday at times agreed and failing agreement for three hours if a school day and for four hours if a non-school day.
14.When the children are in Australia, the children shall spend Christmas with the parties as agreed, and failing agreement, as follows:
(a)with the father from 9.00 am 24 December to 12.00 pm Christmas Day, and with the mother from 12.00 pm Christmas Day until 6.00 pm Boxing Day in 2022 and each alternate year thereafter; and
(b)with the mother from 9.00 am 24 December to 12.00 pm Christmas Day, and with the father from 12.00 pm Christmas Day until 6.00 pm Boxing Day in 2023 and each alternate year thereafter.

15.In relation to changeovers that do not occur at school, changeovers shall occur at the mother’s home.

Communication
16.Each parent is at liberty to communicate by telephone/video call to the children, each Tuesday and Thursday between 7.00 pm and 7.30 pm that the child/ren are not in his or her care, with the parent exercising the communication to initiate the contact.

Education
17.Both parties are at liberty to contact the children’s schools and teachers, and to attend all school functions to which parents are routinely invited.

Country B school
18.Both parties shall ensure the children are enrolled in and attend Country B school at their equal expense.

Restraints
19.Both parents be and are restrained from:
(a)consuming more than two standard drinks per day at any time the children are in his or her care;
(b)denigrating the other parent, member of his or her family or household to or in the presence or hearing of the children or knowingly permitting any other person to do so; and
(c)discussing these proceedings to or in the presence or hearing of the children or knowingly permitting any other person to do so.

Counselling and programs
20.The parties forthwith do all acts and things and sign all necessary documents to arrange for Y to participate in a protective behaviours program at their equal expense. In the event they are unable to agree as to an appropriate program within 28 days of these orders, the Independent Children’s Lawyer shall nominate the program.
21.Both parties forthwith do all such acts and things and sign all necessary documents to ensure that X continues to attend upon his psychologist.
22.The father forthwith enrol in and attend upon a drug and alcohol counsellor, and comply with all reasonable directions of that counsellor as to attendance and treatment.
23.The father shall continue to attend upon his psychiatrist, or her nominee and comply with all reasonable directions as to attendance and treatment.
24.No later than 28 January 2023 (or as soon thereafter as practicable), the father shall provide to the mother’s solicitors written confirmation from both his drug and alcohol counsellor and his psychiatrist that he has attended upon them in accordance with their directions. X’s time shall not progress to week-about until such written confirmation has been provided.
25.No later than 28 January 2024, the father shall provide to the mother’s solicitors written confirmation from both his drug and alcohol counsellor and his psychiatrist that he has attended upon them in accordance with their directions. Y’s time shall not progress to week-about until such written confirmation has been provided.

Travel to Country B
26.Commencing not before the long summer holidays 2023/2024 and subject to compliance with Order 27 herein, the mother is permitted to travel to Country B with the children for up to five weeks each year, at times agreed in writing.
27.Prior to the mother’s departure from Australia the mother shall:
(a)provide the father with a detailed itinerary of the trip, including copies of the children’s return airline tickets;
(b)travel only to and from Country B, unless otherwise agreed in writing;
(c)provide the father with a mobile telephone number for the facilitation of the children’s communication with the father whilst they are in Country B; and
(d)deposit the sum of $75,000 by way of security with the father’s solicitors, with such sum to be held on trust by the father’s solicitors, and repaid to the mother upon her return to Australia.

28.In the event:
(a)the mother does not return to Australia on the agreed return date; and
(b)that failure to return is not as a result of matters outside the mother’s control; and

then the funds held by way of security shall be released to the father, and utilised by him to secure the children’s return to Australia.
29.Both parties shall do all such acts and things to ensure the children’s Australian and Country B passports are renewed prior to expiration.

Family Law Watchlist
30.Each of MS KISHO and MR ARMIN and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born 2008 and Y born 2012 from the Commonwealth of Australia.
31.IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until 18 December 2023.
32.Upon expiration of the period referred to in Order 31 hereof, and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watchlist.

Independent Children’s Lawyer Discharged
33.The order for the Independent Children’s Lawyer is discharged upon compliance with Order 20 herein.

Applications Dismissed
34.All extant applications are dismissed and the matter be removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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 Armin & Kisho has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
Introduction

This a parenting dispute regarding the parties’ two children, X, who is 14 and Y who is 10. The issues in dispute include competing allegations of alcohol misuse, concerns regarding the parties’ mental health, the mother’s allegations that the father has subjected Y to sexual abuse and her assertion that he poses an unacceptable risk to Y should his time with her not be subject to supervision. Additionally, the mother wishes to relocate to Country B.
Mother’s proposals
Mother’s primary proposal
At the conclusion of the trial, it was the mother’s primary proposal that she should be permitted to relocate to Country B prior to the commencement of the Country B school year in 2023.
She proposed the children spend time with the father in Australia for two periods of two weeks each year, in December/January and in July/August. She proposed X would spend the whole of each two week period with the father, and that Y’s time would be day time only, for eight hours each day, and the paternal grandmother or other agreed adult to be in substantial attendance. She proposed Y’s time could increase when Y turned 14 years old to include overnight time.
In addition the mother proposed the father could travel to Country B for up to two weeks each year. During that time, X would be in the father’s care, and Y would spend eight hours each day with the father, with the paternal grandmother or other agreed person to be in substantial attendance. The mother proposed she would supply a residence for the father and children to stay in when he attended in Country B, if that was requested by the father.
She also proposed the children speak with their father by Skype twice a week.
She proposed further she would provide the sum of $50,000 as security, to be retained in a solicitor’s trust account until Y turned 18, and that prior to any relocation, the parties would do all things “to have these Orders acknowledged under Country B law”.
Mother’s fall-back proposal
The mother also put forward proposed orders, as a fall-back position only in the event that her application to relocate was refused. If that was the court’s determination, she proposed that the father spend each alternate weekend with X from after school Friday until before school Monday, and each alternate Sunday with Y from 9.00 am to 5.00 pm.
She also proposed X spend a week with the father in Term 1 and 3 school holidays and for longer blocks of time over the long summer holidays. Her proposals for Y’s time during holidays was limited to two eight hour days during the week X was with the father.
Additionally, the mother proposed the father spend time with the children on their birthdays and video calls twice a week.
This fall-back proposal also sought that any time Y spent with the father should be in the substantial attendance of the paternal grandmother, paternal aunt or any other agreed party. There was no proposal to extend that to overnight visits when she turned 14, but it seems to me that may just have been a drafting error.
The mother also sought that she be at liberty to travel to Country B twice annually with the children.
The mother’s fall-back proposal did not, as drafted, include the provision of a security for any trips to Country B. However the sum of $50,000 was nominated by her counsel as an appropriate amount of security if one was required.
Additional orders sought by the mother
The mother wanted orders requiring the father to ensure X attends Country B school when he is in his care. She sought orders restraining the parties from drinking more than two standard drinks on any day the children are in their care, injunctions on the parties denigrating each other, or discussing the proceedings with the children. Additionally, she also sought to enrol Y in a Protective Behaviours course, to educate her about sexual abuse.
The father’s proposals
The father wishes to remain living in Melbourne. He opposed the mother’s application to relocate with the children to Country B. He also opposed the mother being permitted to travel to Country B with the children without leaving a substantial surety, as he said she is a flight risk.
The father sought orders that the parties have equal shared parental responsibility for the children, that Y live with the mother who shall remain living within 20 kilometres of the children’s schools in the Suburb C/Suburb D suburbs of Melbourne, and that X live with him. He sought that X remain at Suburb D School and that Y also attend there once she has completed her primary education at Suburb C School.
The father proposed X spend time with the mother from after school Friday to before school Monday each alternate weekends, for one week of all term holidays, and for half of the long summer holidays as well as time on special occasions.
In relation to Y, he proposed she commence spending time with him from Friday to Monday on alternate weekends, and then an additional Monday night be introduced in 2023, making it four nights per fortnight in the father’s care. He then proposed that from 2024 Y live with her parents on a week-about basis. In addition he proposed time with Y for holidays and special occasions that mirrored his proposals for X.
The father nominated that, without admitting such an order was necessary, until 2024 the time Y spent with him be subject to the substantial attendance of either of his parents or his sister.
The father sought orders that the mother pay for Country B school and he would ensure the children attend when they are in his care.
In relation to overseas travel, the father proposed orders permitting the mother to travel with the children to Country B for up to five weeks, presumably annually. However, he said such travel should not occur until Y is 14 years old, and would be subject to a number of conditions, including the provision of a $100,000 security to be held by the husband’s solicitors until both children returned to Australia. He further sought that the wife renew the children’s passports at her expense, and that they be delivered to him.
The father sought orders for the provision of information, and injunctions in similar terms to the mother, save that he sought a complete prohibition on alcohol consumption at any time the children were in the care of that party.
He sought that X continue to engage with his psychologist at the parties’ equal expense, that the mother attend her GP, that he continue to attend his GP and psychiatrist and that Y be engaged with E Psychologists, child psychology, at the father’s expense.
Father’s fall-back position
In the event the children were permitted to relocate with the mother, the father sought orders that they spend time with him in Australia, at the mother’s expense, for the entire Country B long summer break and during the Country B mid semester holiday. Additionally, he proposed he spend time with the children in Country B for a week each year.
He proposed an order be made requiring the mother to provide a bond of $100,000 to his solicitors, such sum to be utilised by him to ensure enforcement of the orders for the children’s time with him, should those orders be breached by the mother.

He further sought that the mother be required to register any orders of this court in a Country B court.
The Independent Children’s Lawyer’s proposal
The Independent Children’s Lawyer similarly did not support a relocation.
She proposed the parties have equal shared parental responsibility for the children, and that they remain living primarily with the mother, and that she remain within 20 kilometres of the children’s schools.
The Independent Children’s Lawyer further proposed that the children spend alternate weekends with their father, from after school Friday to before school Monday, a week in each term holidays and half of the long summer holidays, along with a division of special occasions. Video calls were proposed to be twice a week.
The Independent Children’s Lawyer also proposed that for the balance of this year, any time Y spent with her father be subject to either a paternal grandparent or aunt being in substantial attendance. The proposed orders of the Independent Children’s Lawyer included a notation that towards the end of next year, the parties attend mediation to discuss the possibility of Y spending more time with the father.
From the commencement of 2023, the Independent Children’s Lawyer proposed X live with each of his parents on a two week-about basis during school terms.
The Independent Children’s Lawyer supported the father’s proposals for Country B school, for the obtaining and holding of passports, for injunctions and for the continuation of the parties and X engaging with their treators. She did not propose orders for Y to engage with counselling.
In relation to overseas travel, the Independent Children’s Lawyer supported the orders proposed by the father for that travel to be subject to her providing security of $100,000. However, the Independent Children’s Lawyer proposed such travel could commence in the upcoming long summer holidays.
In the event the mother was permitted to relocate, the Independent Children’s Lawyer sought orders that the mother provide a $100,000 security to be used in the event the mother did not comply with orders for time to occur for four weeks in the mid-year long break and for 10 days over Country B winter break. She also proposed the father be able to visit for up to two weeks twice per year and that the children otherwise have video communication with him twice weekly.
The Independent Children’s Lawyer also sought orders that the mother register any orders of this court in a Country B court.
Issues to be determined
The significant issues I need to determine are:
(a)the allocation of parental responsibility;
(b)what care arrangements for the children are in their best interests, including: and
(i)whether they live in Country B or remain in Australia,
(ii)what time they should spend in their father’s care, and
(iii)on what conditions.
(c)if the children remain living in Australia;
(i)should the mother be permitted to travel to Country B with them for holidays, and
(ii)if so, whether the mother should be required to leave a bond in Australia and the amount of any such bond.
The evidence
The trial commenced in person at the Melbourne Registry on 27 April 2022. It was conducted partly in person, and partly via Microsoft Teams. There were issues with availability of witnesses and counsel, which meant the trial took place over several months. Additionally, shortly after final submissions, X received a preliminary assessment for Autism Spectrum Disorder (“ASD”). This assessment was tendered by agreement, and accompanied by further written submissions from the parties.
There were a few technical issues during the course of the trial, but they were readily addressed. I am satisfied that in relation to the parts of the trial that were conducted using Microsoft Teams, I was sufficiently able to hear the evidence to make my determination.
In addition to hearing from each of the parties, the court heard evidence from the following witnesses:
(a)Dr F (“Dr F”) – the mother’s treating psychiatrist. She relied upon her affidavit filed 18 January 2022;
(b)Mr G (“Mr G”) – who prepared psychological reports regarding the mother’s mental health. His affidavit filed 16 February 2022 was relied upon;
(c)Mr H (“Mr H”) – the ex-husband of the father’s sister. He relied upon his affidavit filed 18 January 2022;
(d)Mr J (“Mr J”) – a Country B lawyer who gave evidence on behalf of the mother as to the ability to have parenting orders made and enforced in Country B, and as to the implementation of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”). His affidavit filed 19 January 2022 was relied upon;
(e)Mr K (“Mr K”) – a Country AC lawyer who gave evidence on behalf of the father as to the ability to have parenting orders made and enforced in Country B, and as to the implementation of the Hague Convention. His affidavit filed 28 July 2021 was relied upon;
(f)Ms L (“Ms L”) – the paternal grandmother. She relied upon her affidavits filed 3 February 2020, 5 March 2021, 25 January 2022 and 26 April 2022;
(g)Mr M (“Mr M”) – the paternal grandfather. His affidavit filed 3 February 2020 was relied upon;
(h)Ms N (“Ms N”) – the father’s sister. She relied upon her affidavits filed 5 March 2021 and 25 January 2022;
(i)Ms O (“Ms O”) – forensic psychologist, who provided an analysis of the VARE conducted on Y in March 2019. She relied upon her affidavit filed 25 January 2022;
(j)Dr Q (“Dr Q”) – X’s previous psychologist. She relied upon her affidavit filed 19 March 2021;
(k)Ms P (“Ms P”) – formerly a Family Consultant with the court. She conducted the first Child Inclusive Conference, dated 20 December 2018;
(l)Ms R (“Ms R”) – a senior Child Protection practitioner with the Department of Families, Fairness and Housing (“the Department”). She prepared the s 69ZW response dated 22 May 2019, which was relied upon; and
(m)Dr S (“Dr S”) – the Family Consultant, who prepared the Family Reports and psychiatric assessments of both parties. His reports relied upon in the proceedings were dated 28 August 2019, 23 September 2019, 23 March 2020 and 30 March 2020.
The wife’s solicitor, Mr Skinner, provided the court with an affidavit, to which was exhibited a transcript of the VARE. Ms O also included a version of a transcript of the VARE. The VARE tape was played in open court and admitted into evidence on the first day. There were some inconsistencies and inaccuracies between the actual VARE and both Ms O’s and Mr Skinner’s versions of the transcript. Accordingly, I have relied on the actual VARE rather than the provided transcripts.
It is common ground that the reports of the family contact service set out that the children’s time progressed very positively when professionally supervised. No professional supervisor was required to give evidence.
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof for facts which are in dispute in these proceedings is to a balance of probabilities. However, as set out later in these reasons, that is “not the measure by which an unacceptable risk of harm is to be assessed” (see Isles & Nelissen [2022] FedCFamC1A 97 (“Isles & Nelissen”) at [47]).
Background and Procedural History
The mother is 47 years old and lives with the children in the Suburb C area. She was born in the Country B city of City T, where her family continue to reside. As I understand, the mother is a permanent resident in Australia but not an Australian citizen, and has retained her Country B citizenship.
The mother has been employed full-time since the end of 2021, following a period of unemployment. Her employer is a Country B company. She anticipates that there will be an opportunity to progress with the company in Country B if she is permitted to relocate. The mother says that whilst she has made some friends through the Country B community in Australia, she feels isolated residing here. The mother has not re-partnered.
The father is 55 years old. He lives in the U Town area with his parents. He has been employed as a Manager on and off for a number of different companies over the past twelve plus years. He informed the court that depending on the outcome of these proceedings he would like to secure his own accommodation closer to where the children reside with the mother and nearer to their schools. It was described that he has a close-knit relationship with his family. The father has also not re-partnered.
The parties met in Australia in 2003 whilst the mother was here studying. The mother returned to Country B the following year and in 2004 the father moved to live with her in City JJ. They married there in 2005. It is common ground that the parties’ relationship was tumultuous, although each asserts the other party was the cause for the unsettled and unhappy relationship.
In 2008 the parties’ first child, X, was born in Country B.
The father became unemployed in early 2009, and was unable to secure other employment in Country B. The parties agreed to move to Australia, although it is fair to say the mother was reluctant to do so. It was a condition of her agreement that they would consider returning to Country B in three years. Shortly before the parties were to move to Australia, the mother then reneged on the agreement to relocate, but was convinced to do so by the paternal grandmother. It was further agreed the mother would be able to return frequently to Country B for visits.
Events following the parties relocation to Australia
The parties relocated to Australia in early 2010 and the mother obtained permanent residency later that year.
It is evident that shortly after the parties arrived in Australia there were a number of hostile incidents that occurred between them, often in the presence of the children and at times resulting in one or other of the parties calling the police. The parties each allege that the other perpetrated verbal, physical and financial abuse towards the other. The parties also took to secretly – or obviously – recording the other parent, presumably in an attempt to shore up evidence of the other party’s parenting deficiencies. It is also plain that on a number of occasions either or both parents were alcohol affected. Both say the children were scared of the other parent at various times. No doubt the parental conflict created a stressful and difficult environment for the children.
There were significant differences in the narratives deposed by the parties as to the events that have occurred since their relocation to Australia, with each parent asserting the other was the aggressor. As indicated, the police were called to the home on multiple occasions. In 2012, the parties obtained mutual Intervention Orders. However, they continued their relationship, and Y was born in 2012.
In or around 2014 there are allegations that the mother woke at night and observed the father’s hand over Y’s genital area. Y and the father were asleep (“the 2014 sleeping incident”).
In mid-2014 the mother was visiting her family in Country B with both of the children. During this time there was conflict between the parties. The mother acknowledged that in a conversation via Skype video call she threatened that she would not return to Australia with the children. However, she subsequently did return with the children.
There was an incident in late 2014, involving the parties and the father’s parents. The particulars of what occurred that day are in dispute – but it seems unlikely to assist me in the overall determination of what is now in the children’s best interests that I make findings of fact beyond noting the dispute occurred in the presence of the children, and that the mother – at least – was distressed and upset – which would have been unsettling and confusing for the children.
There were ongoing disputes between the parties later in 2014 and beyond, including disputes around appropriate bed time routines for X. Again, these disputes occurred in front of the children. The mother sought another Intervention Order against the father in late 2014 but then withdrew that application.
In or around 2015 the mother asserted that a small cut on Y’s labia may have been caused by the father having sexually assaulted Y whilst he was assisting her to take a bath (“the 2015 bath incident”).
There were further arguments and altercations in 2015, with both parties reportedly drinking to excess.
By 2017, the parties both say the children were frightened by the other parent’s behaviours. The mother said the father drank to excess, and would yell and scream. The father said the mother would drink to excess, become emotionally uncontained, and cling on to X in particular. Again the police – and the paternal grandparents – were called on several occasions to assist the parties.
Sometime between late 2017 and around mid-2018, the parties separated under one roof. Their conflict continued.
The mother said that in mid-2018 the father pushed Y as he was reading to X in bed. She said Y hit her head against the edge of the bed and began crying and complained to the mother. The father disagreed with this recollections of events and said the injury was caused by Y jumping onto the bed in the master bedroom, flinging herself back and hitting her head on the bed’s backboard.
Also in mid-2018, there was a verbal and physical dispute between the parties, during which the mother’s finger was shut in the bedroom door. The police were again called to the home.
In mid-2018 the mother visited Country B with the children. Prior to this trip the mother had returned to see her family about twice per year with the children since relocating in 2010. She has not been able to return to Country B since that time.
The mother said “things worsened” between the parties when she returned and this impacted on her mental health. After an argument between the parties in late 2018, the mother left the house, and called Lifeline for mental health assistance. She described feeling depressed, “trapped and unable to leave the marriage”. Lifeline assessed the mother as being at risk, so they called the police to the home. The mother was not at home when the police attended and she arrived later. The police then called paramedics to assist the mother, with the father asserting the mother was heavily intoxicated – which the mother denied. The mother was then taken to hospital for assessment, and released in the early hours of the next morning.
The hospital records report the mother had three glasses of wine that evening. She described feeling worthless, like a bad mother, and felt unable to leave the marriage as she would lose her children. She said that the father had been violent until two years ago, and was now emotionally abusive and controlling. She also told the hospital that he was not physically abusive with the children but she felt they were scared of him. She was expressing suicidal thoughts, without plan or intent. She was not described in the hospital records as being heavily intoxicated.
The mother said in late 2018 she called a woman’s shelter through a domestic violence organisation, seeking refuge due to fear caused by the father’s behaviour. In her affidavit filed 21 February 2020 the mother said the parties had an argument and the father “told me I was not a good mother which upset me”. The father said on this day he returned home from work to find the mother behaving strangely, packing belongings and appearing to be intoxicated. He said she mentioned someone collecting her and the children, and he noticed in amongst her packed belongings were the family passports. The father immediately called the police, who attended promptly, and he expressed his concern that the mother would leave with the children to Country B. The mother remained at the home with the father and children.
In late 2018, the mother said she found Y naked in bed with the father (“the late 2018 bedroom incident”).
In late 2018, the mother sent the father a text message that read:
I ask you to leave the original documents as [X's] and [Y's] passports, [Y's] birth certificate, [X’s] citizens certificate and my tax file number on th [sic] kitchen table by tomorrow morning. Otherwise they need to be reported stolen.
The father said at that time he had genuine concerns the mother was making arrangements to leave Australia and return to live in Country B with the children.
In late 2018, the father sought to take the children to the paternal uncle’s home to play with their cousins and have a sleepover. The mother did not agree. Once again, there was an altercation between the parties in front of the children, and the police were called to the home. The father described that the mother had followed X to his room and pushed herself on top of him on his bed, covering his body.
The mother conceded she had been drinking on this occasion, which may have impacted her judgment and decision making. She also reflected that it was inappropriate for her to handle X in this way.
When the police attended that day, the mother reported that four days earlier the father had been in bed with Y who was naked.
Events following the initiation of proceedings
The father initiated these proceedings on 16 October 2018, seeking an urgent Application to place the children on the Family Law Watchlist.
The father said the mother was again intoxicated when he was trying to put the children to bed on 17 October 2018. He said the mother entered X’s room, climbed over him and woke him up, causing him distress. The mother said she did not recall this occurring.
The matter first came before this court on 30 October 2018. On that occasion a Senior Registrar made an order placing the children on the Family Law Watchlist. Consent Orders were made which provided that the mother attend upon her regular GP and that both of the parties participate in an alcohol rehabilitation program and an anger management course. An order pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) was also made on that occasion.
In late 2018, the mother said she called the police when the father drunkenly pushed her in the chest as she was trying to say goodnight to X. That was denied by the father. It is my understanding that the police did not pursue the matter any further after they arrived. It seems to me that both parties were likely affected by alcohol at this time.
Also in late 2018, following another argument, the father moved out of the matrimonial home and went to stay at his sister’s house. The parties have not resided under the one roof since that time.
Further interim consent orders were made by a Senior Registrar on 27 November 2018. Those orders provided that the parties have equal shared parental responsibility and that they live with the mother. The children were to spend week-about time with the father for the remainder of the school term, a period of three nights over Christmas, and commencing in Term 1 2019 one a week about basis. By that time the father had secured rental accommodation for himself and the children in Suburb V.
In late 2018, Child Protection interviewed the mother to discuss protective concerns for the children.
On 12 December 2018, the parties only, and on 19 December 2018 the parties and the children participated in a Child and Family Meeting. Family Consultant P provided a memorandum dated 20 December 2018 which raised significant concerns about the mother’s presentation at interview.
Y was interviewed by Child Protection on 13 December 2018. No disclosures of sexual abuse were made. She did say the father smacked her bottom and that really hurt. She confirmed her parents fought a lot, and yelled and that she told them to stop. She said X would cry. She said she slept in the bed with both of her parents.

In late 2018, the children were due to spend the week with the father. The paternal grandmother attended at the school to collect the children. The father said the mother had the children with her, and that Y was crying hysterically and clinging to the mother. The mother did leave the school and Ms L was able to take the children back with her.
In late 2018, the father attended to collect the children from the mother’s home. It is common ground that notwithstanding that the mother had given X a Nintendo Switch for Christmas, she initially refused to allow him to take it to the father’s home. X was, understandably, very upset. She did ultimately let him take it with him, after the father intervened. This altercation meant X was simultaneously exposed to his mother’s somewhat selfish decision to deprive him of the use of his present at the father’s home and the father’s undermining of the mother’s parenting.
In January 2019 the father was interviewed by Child Protection.
The s 69ZW response was completed on 24 January 2019. It was Child Protection’s assessment that there was no evidence gathered to suggest that Y had been sexually assaulted by her father. The report was closed at intake. Recommendations were made that both parents engage in family violence programs to address the concerns raised around family violence.
The matter came before a Senior Registrar on 31 January 2019. On that occasion interim consent orders were made which provided that changeovers were to occur at McDonald’s, instead of at the parties’ homes. I note over the Christmas and New Year period the mother asserted the father had gone inside her home during changeovers. The parties were also ordered to attend upon Dr S for the purposes of a psychiatric examination, and with the children for the purposes of the preparation of a Family Report.
The mother said in early 2019 she was discussing hygiene practices with Y at bedtime when she made what the mother asserted was a disclosure about the father touching her “girly bits” as she was falling asleep. The following day the mother called the Suburb W Sexual Offence and Child Abuse Investigation Team (“SOCIT”) team to report her concerns. Arrangements were made for the mother and Y to attend the Suburb W Police Station in early 2019 (“the early 2019 discussion”).
Subsequently, in early 2019 the mother made a statement to police and Y participated in a VARE interview regarding the allegation of sexual abuse.
On 12 March 2019 the mother filed an Application in a Case seeking that the father’s time with the children be suspended pending further investigation by the police. The children then did not spend time again with their father until 14 July 2019.
In early 2019, Mr H, the ex-husband of Ms N (the father’s sister) made a statement to the police about historical sexual abuse allegedly perpetrated by the father on his sister. That statement was not tendered in evidence before me.
The mother was interviewed by child protection on 8 April 2019. She advised Y was not displaying concerning behaviours, nor apparently was she impacted by the alleged abuse. The mother said she would like Y to engage in counselling. She also proposed time with the father provided it was appropriate and safe.
On 22 April 2019, the Mother said she was informed through her lawyers that Suburb W had concluded their investigation relating to the allegations of sexual abuse towards Y. She was told they had determined there was insufficient information to charge the father.
On 8 May 2019, Child Protection interviewed the children at school. It is reported that both children “articulated their distress” regarding the ongoing court proceedings “and their parents’ inability to prioritise their emotional needs”. Y was not asked about the protective concerns. She did not volunteer any information about those issues. She said she wanted to see the father, but preferred to sleep at the mother’s home. The reasons for this were apparently not explored.
X said he wanted to spend two to three weeks in each parents’ home, as packing his belongings on a weekly basis was distressing for him.
The father was interviewed by Child Protection on 10 May 2019. He denied the allegations of abuse and violence. The Department – who at that point had accepted the statements made by Y to be disclosures of abuse – said the father:
demonstrated a complete lack of insight into the protective concerns and was not able to acknowledge the disclosures of sexual abuse had come directly from [Y].
The father then played video footage of the mother interacting with X, and left them with footage to review later. I have not seen any of the footage. The report notes that X does not appear distressed by his mother’s presence in his room, and that the father can be heard undermining the mother and accusing her of abusing them. The children can apparently be heard asking the father to stop recording. This does not reflect well on the father.
The paternal grandmother was also interviewed, on 17 May 2019. She also denied the allegations. She also demonstrated no insight into what Child Protection described as the father’s “abusive behaviours towards [the mother] in front of the children”.
On 22 May 2019, a further Child Protection report prepared by Ms R was completed. That response set out the substance of the interviews to which have just referred. In that report it is said that based on the information at hand, and on the basis that Y’s “disclosure of sexual abuse” by the father to SOCIT “appearing to be truthful, clear and consistent”, there was sufficient information to suggest Y had suffered sexual and emotional harm by the father. If time was to resume, it was recommended that it be supervised with the paternal grandmother having been assessed as an appropriate supervisor. They said Y’s overnight time with the father ought be “subject to her wishes”, and that for X, he should spend two to three consecutive week blocks with each parent. Child Protection again recommended Y engage in counselling. Concern was expressed that the father’s anger management course he was undertaking at that time was online only, and that he had only attended one drug and alcohol counselling session.
On 10 July 2019, consent orders were made by a Registrar. The orders provided that the previous spend time arrangements between the father and the children be discharged and that the father spend professionally supervised time with the children. Additionally, he was to communicate with the children by telephone on two days per week.
Professionally supervised time between the children and the father commenced in mid-2019 at the Family Contact Service in Suburb AB each Sunday for two hours. It is agreed that the supervised periods proceeded well and without incident. The children were described as very much enjoying the time with their father, and being relaxed and comfortable in his care.
The parties attended upon Dr S on 16 and 19 July 2019 for the preparation of psychiatric examinations and a Family Report. The children also attended upon Dr S for Family Report interviews on 19 July 2019. The assessment and Family Report was released to the Independent Children’s lawyer on 28 August 2019.
Further consent orders were made by a Senior Registrar on 10 September 2019. Inter alia those orders progressed X’s time with his father to unsupervised time each alternate weekend from 5.00 pm Saturday until Sunday afternoon. I note that the father or his family have been wholly responsible for all transport of the children to and from the mother’s home.
Dr S provided an addendum report dated 23 September 2019 after having the benefit of inspecting the VARE interview, as well subpoena documents and reports previously prepared and filed in the matter.
Orders were made by a Senior Registrar on 15 October 2019 dismissing the mother’s application to travel with the children to Country B for six weeks over the 2019/2020 summer holiday period. The Senior Registrar also ordered that the father’s time be supervised by the paternal grandmother, subject to a comprehensive personal undertaking.
Time supervised by the paternal grandmother then commenced on 20 October 2019.
On 24 November 2019, the mother filed an Amended Response to Final Orders, in which she sought liberty to relocate to Country B with the children.
The matter came before Justice McEvoy on 2 December 2019. On that day inter alia procedural orders were made for the parties and children to attend upon Dr S for the purposes of an updated Family Report. The matter was set down for a four day final hearing in April 2020 and the mother was named the applicant in these proceedings.
By the end of December 2019, the father deposed to a deterioration in his mental health, in which he was experiencing panic attacks, insomnia and feelings of depression. He also acknowledged at this time he “had been using drinking alcohol as a fairly bad means of trying to deal with [his] problems”. With assistance from his sister, the father was referred to see Dr BB. In his oral evidence the father said that he received medication to assist him with sleeping, and his alcohol intake significantly reduced after attending upon Dr BB.
On 24 February 2020, the parties each attended upon Dr S for the purposes preparing of an updated Family Report, with the children attending the following day. The updated Family Report was provided to the Independent Children’s Lawyer on 23 March 2020. A further addendum report was provided on 30 March 2020 after Dr S had the benefit of reading the Contact Supervisor’s reports for the children’s time spent with their father.
In late March 2020, the mother sought the father’s permission to travel overseas to Country B as her grandmother was unwell. The father did not agree to that request.
Throughout the height of the COVID-19 pandemic in 2020, there were difficulties with the paternal grandmother supervising the father’s time with Y. For a period of time, the paternal grandmother decided to self-isolate. As a result, Y did not spend time with her father in accordance with the court orders from 22 March 2020 until 17 May 2020, when the paternal grandmother recommenced supervising time. The father had sent the mother a message requesting that the paternal aunt be allowed to supervise time in lieu of the paternal grandmother. However, the mother declined the father’s request at that time, as there were no formal court orders in place reflecting those arrangements.
As I understand, the four day final hearing listed to commence in April 2020 was adjourned to May 2020 to enable a five day final hearing. Regrettably, the matter was unable to proceed in May 2020, due to the COVID-19 pandemic as the matter was assessed as needing to proceed in person, and the trial was re-scheduled for 13 October 2020.
The father’s time with Y temporarily ceased again from July 2020 as a result of the paternal grandmother re-entering into self-isolation. Additionally, as the COVID-19 pandemic spiked, restrictions on travel were imposed, which prevented the grandmother from travelling into the Melbourne metropolitan area. The father said the mother would not consider alternative arrangements to ensure Y could spend time with the father. The mother said she did not receive correspondence from him requesting his sister be the supervisor. I note there is no evidence the mother proposed any alternate arrangement to facilitate Y’s time with her father.
On 2 September 2020, the matter came before a Senior Registrar. On that date interim spousal maintenance and final property orders were made by consent. The final hearing scheduled for October 2020 was also vacated with a request that the trial judge relist the matter for a date in early 2021.
On 4 September 2020, the mother’s lawyer wrote to the father’s lawyer, accepting the father’s earlier request for the paternal aunt to supervise time between Y and the father when the paternal grandmother was unavailable. The mother required that the operative orders be varied to reflect this agreement and that the paternal aunt sign an undertaking mirroring that of the paternal grandmother’s. There was some dispute about the wording of the undertaking, including a verbal disagreement between the parties at a changeover, in front of the children. These issues delayed the recommencement of Y’s time by a further month. Y’s regular time with the father recommenced on 4 October 2020, supervised by the paternal aunt. Prior to that, Y had only seen her father briefly at changeovers and for one longer period on Father’s Day since the middle of the year.
In around late 2020 the father had surgery. He then became unemployed.
Court orders were made by consent on 7 October 2020, varying the Senior Registrar’s orders of 15 October 2019 to enable Ms N to provide supervision of Y’s time with the father if the paternal grandmother was unable to do so.
On 15 November 2020, the paternal grandmother returned from self-isolation and recommenced supervising time between the father and Y.
In about late 2020, the father moved from his home in Suburb V and relocated to his parents’ home in U Town. The father and his family have continued to do all the driving to facilitate time.
As I understand it, by consent, X spent extended holiday time with the father from 4 to 10 January 2021. Through the parties’ lawyers a month later, there was an agreement that the father’s supervised time with Y be extended on each alternate Sunday, from 10.00 am to 5.00 pm, and that X’s time be extended from 5.00 pm Saturday to Monday morning each alternate weekend.
The parties attended Judicial Mediation on two occasions in 2021, but were unable to resolve the matter. The trial originally scheduled for March 2021 could not proceed as an interpreter had not been arranged for the mother.
After the second of the Judicial Mediations in mid-2021, the mother reported a significant deterioration in her mental health. She said she felt “hopeless and defeated by the further delay of the current proceedings and the possibility of not being permitted to relocate to [Country B] with the children”. In mid-2021 she visited her GP and obtained a referral to attend upon Dr F.
The parties agreed that X could spend the week commencing 7 August 2021 with the father. The father said that during that week it became apparent to him that X was far behind in his studies. The father said he and X spent that week working hard to catch him up. The father said the discovery of X’s incomplete work was very distressing.
X also spent six nights with the father commencing 20 September 2021, for school holidays, and another six nights commencing 19 October 2021 during school term, which at that time was being conducted online.
It only became apparent from evidence tendered at final hearing that the father then experienced his own mental health struggles around this time. Subpoena material showed that the father was referred again to Dr BB in late 2021 and that he voluntarily admitted himself to CC Health Service in late 2021 for assistance. He remained as a patient at the clinic until he was discharged some days later. He had not advised the mother of his admission, notwithstanding that X came into his care for an extended period, just three days after being discharged. The only document put before me was the discharge summary. That summary does not identify the reason for the father’s admission, which remains unclear to me.
The parties also agreed for the father to have both children on 2 November 2021. They spent the day with their paternal cousins. The mother also agreed to the children spending time with the father in late 2021 to attend their cousin’s birthday.
The father commenced his current employment in late 2021. That is a full time and permanent position pursuant to which he receives $150,000 per annum, inclusive of superannuation contributions.
The parties were able to agree to the children spending some additional time with the father over Christmas. X remained with his father for a week, and Y spent 10.00 am to 6.00 pm with the father and her brother on 25 December 2021. The parties also agreed for X to spend another 10 days with the father in early 2022.
In early 2022 the mother withheld Y from spending time with the father. It is my understanding that this occurred as a result of a discussion between Y and the paternal grandmother about Harmony Day, which the mother said upset Y.
The final hearing then commenced before me on 27 April 2022, and regrettably, proceeded in fits and starts over the course of the following five months.
The children
X
X is 14 years old. He is in Grade Eight at Suburb D School. He also attends Country B school each Saturday morning during school terms. The mother agreed in her oral evidence that he has a close network of friends at school.
X is a dual Australian and Country B citizen, being granted Australian citizenship in mid-2008. X is registered in Country B using the mother’s last name. In her oral evidence the mother said it was a requirement of registration that the children have her surname, as she is the Country B parent.
X particularly enjoys maths and science. He and the father share an enjoyment in computer gaming. It is common ground that X is a very bright young man, although his school attendance is patchy. The father is also concerned about X’s progress at school, which he described as poor. He said this does not reflect X’s true academic ability.
At trial, each of the parties raised issues regarding X’s presentation and functioning, including his anxiety issues, being overly focussed on computer games, poor sleep routine, dislike of disruption to routine and some unusual physical behaviours. X has now received a provisional diagnoses of ASD. He previously had night time enuresis although I understand this has substantially resolved.
X can get anxious and does not like changes to his routine. It can be difficult for him to move between activities. It can be difficult to encourage him off electronic devices. He also struggles with expressing his feelings and can become withdrawn and shut down.
From late 2018 to 2021, X attended upon Dr Q, regarding his anxiety, emotional regulation and long standing sleep issues. Her time with X ceased after the last appointment in late 2021 as Dr Q moved away from the clinic. She saw him 25 times in total.
X currently attends upon Ms EE (“Ms EE”), psychologist. He commenced seeing her in about mid-2022. The mother said that was necessary as X was so distressed about a conversation at his father’s home regarding these proceedings. Ms EE formed a view that X should be assessed for ASD.
In mid-2022 X was provisionally diagnosed as meeting the ASD criteria. I note in the report completed by Ms DD (“Ms DD”), clinical psychologist, she expressed significant surprise that this had not been “flagged by a health professional at some point prior to now” as he “very clearly” met the criteria. She opined that the parties’ separation and parenting dispute had been the parties’ primary focus and likely explained the delay in X’s diagnosis. She said the parties’ separation did not cause X’s issues, which she said were evident from infancy.
That provisional diagnoses requires confirmation from a paediatrician. I understand arrangements are being made for that to occur.
Dr Q
Dr Q provided a report to the court dated 10 March 2021, and also gave evidence at the hearing.
Dr Q emphasised that X does not manage changes to his routine, or transitions which can significantly exacerbate his anxiety. For instance, X’s anxiety escalated following his parent’s separation, and it is agreed that he did not manage well emotionally during the periods of time he had no contact with his father. Remote learning and other social restrictions also contributed to X’s anxiety levels.
Dr Q noted that in her sessions with him, X was withdrawn and socially distant. She described that he:
…often misses humour and social cues, and he has some rigid patterns of thinking which interferes with other daily tasks.

Dr Q also noted that X at times lacked enjoyment in tasks he previously enjoyed. She said that was particularly evident around mid-2019. At that time he was not seeing his father and his anxiety levels were increased. Dr Q noted that in sessions conducted at that time, X communicated with her in writing rather than orally.
Dr Q said X appeared to be:
sensitive to changes occurring within the family and themes of relational insecurities have been present, such as when his contact with his father has been compromised. [X’s] presentation across the span of therapy has been indicative of generalised anxiety with secondary depressive symptoms.
Dr Q said she had provided both parties with advice around the need for routines, consistency and positive reinforcement for X. In her oral evidence Dr Q said X had a real need for consistency – and every time there is a disruption to his routine, there is an evident increase in his anxiety. She said periods of transition “were incredibly difficult for him”. She said his anxiety was elevated at times he was not seeing his father. At times he was so severely anxious he would be non-verbal when attending upon her.
In her oral evidence, Dr Q expressed concern that a relocation would be quite disruptive to X’s ongoing therapy (which he had recently commenced with a new treator). Dr Q said it takes X a long time to build relationships, and if there is inconsistency in his treatment she expected there would be “very little chance” of therapeutic progress.
In her oral evidence Dr Q also noted that X using avoidance as a coping strategy. For that reason she said he needs more guidance and supervision to ensure he stays up to date with his school work.
Dr Q emphasised X’s need for clear and consistent boundaries in the home. In her report, Dr Q said she provided information:
about the importance of reinforcing strategies and implementing consistent boundaries at home. A lack of consistent structure and boundaries has impacted [X’s] progress, particularly when he is not getting enough sleep or exercise.
In relation to sleep issues, X reported to Dr Q in late 2018 that he had concerns around his sleep routine and feeling tired. The routine for his sleeping was not consistent following the parents’ separation. Those issues for X’s sleeping continued, with Dr Q noting that his mood and energy levels were impacted by inadequate sleep, resulting in X experiencing increased anxiety, depressive symptoms and avoidance.
I note that Dr Q formed an impression that the mother (who brought X to his sessions):
…appeared to maintain an expectation that the children would be responsible for their device use and bed time routine, however the children were experiencing difficulties with self-direction within these domains.
Dr Q did also note that by late 2020, the mother was reporting that she had been able to implement some bedtime routines. However, it is clear that any improvements have been short lived. X’s sleep issues are chronic and significant.
X’s sleep routine
Each of the parties in their material asserted the other parent did not maintain an appropriate bedtime routine, and blamed the other when either of the children are tired.
In her affidavit filed 12 March 2021 the mother deposed she does not allow the children to use electronic devices after 8.30 pm as advised by Dr Q. In evidence when she was recalled in June 2022, the mother said she had continued to try and implement Dr Q’s advice and get him in bed, without a device by 8.30 pm. She said she managed that reasonably well until earlier this year. She also said that from mid-2021, X became increasingly resistant to the mother’s directions and the routine became less effective.
The mother advised that X’s sleeping issues had now escalated and that he was generally going to sleep around 1.00 am or 2.00 am. She said this meant “on occasion” he was late to school or did not attend school at all. It is obvious that he is not getting enough sleep. That must impact on his academic performance, as well as on his emotional and psychological wellbeing. She said this pattern of very late nights became significantly worse after the Easter holidays this year.
The mother said she has discussed this with Ms EE, and X was now keeping a sleep diary. Surprisingly, the mother said she was “not quite sure” if she knew the extent of X’s sleeping issues before he commenced with Ms EE. The mother said she goes to bed around 11.00 pm, and that she tells X to turn off his light. She said he might be doing work, or reading or playing games, all on his computer at that time. She said she checked on him hourly after that to see if he has gone to sleep – asserting she did not need to set an alarm to wake her to check on him but as she is anxious and worried, she wakes naturally. She said Ms EE has suggested X’s screen time be reduced, and that the mother is trying to encourage X to close down his electronics at 1.00 am, with a view to winding back to 12.00 am and then to 11.00 pm. She said she cannot simply remove his computer and turn off his light. She said she did that in the past, and had turned off the internet. However that infuriated X. He became hysterical, screamed at her and wrestled with her over the computer. She said she thought she was in danger so she would not do that anymore.
The mother said she wakes X up in the morning before school. She said she leaves home about 10 minutes before X is to start his bike ride to school. She accepted that he was not always ready when she left the home. When presented with the school records that showed X as being frequently late to school, the mother insisted that it was likely he had only missed the very start of the class, and that the teacher just left him marked as absent for the whole of the first period. That did not explain the records that suggest there are entire days he has been marked absent, and times he was marked absent for multiple periods during the day. On some of the days where X was late and/or missed multiple classes, the mother was working from home. She said X left for school and did not come home until after the conclusion of the school day.
The mother said she has asked X about these records that show him as being absent. She said X told her the school record was wrong, and that the teachers did not correct the record if he arrived in class shortly after roll was called. The mother accepted X’s explanation, saying “I asked the question, and he said he did attend and I trust him”.
In relation to some of the missed days, the mother said X was unwell. She did accept he was late to school on occasion. However, she said mostly the issue was with the way the school records were incorrectly kept. She said she no longer checks with the school as she is “100 per cent” confident that he is at school.
The mother’s reports regarding X going to bed very late are consistent with the father’s evidence in his affidavit filed 25 January 2022 in which he said X said he stays awake until 1.00 am to 2.00 am most night when with the mother, including on school nights.
However, it is apparent that the father also struggles to manage X’s sleeping issues, and has also delivered him late to school when he has been coming from the father’s home.
In his oral evidence in May, the father asserted that X is required to finish playing computer games by 10.30 pm on the Saturday and Sunday. At that time, he said X did not have problems falling asleep when he is with the father. However, in his oral evidence in June, the father said X now stayed up until 1.30 am at the latest in his care. He said on a Sunday night he tries to get him to bed earlier, before midnight. The father said it is difficult for him to implement a consistent regime as he only has X for two nights a fortnight. He said if X was living with him, he would work to ensure an appropriate atmosphere to wind down at the end of the day, to help X relax, and that he would instil a routine of dinner, shower and bed.
The father said when X is marked as attending late on days when the father drops him off that it is because he takes his time getting to class. The father said he drops him at school a couple of minutes before 9.00 am. The father said he has spoken to X about the importance of attending school on time, and of attending to his homework. The father said X has told him he sometimes sleeps until 1.00 pm or 2.00 pm after the mother leaves for work.
It is appalling that the parties have not ensured an appropriate or consistent routine for X. The mother in particular seemed somewhat as a loss as to what she could do. This is despite her apparently seeking additional support regarding these issues as early as 2018. X’s poor sleep routine needs to be immediately addressed by both of his parents, as it will undoubtedly be having a profound impact on all aspects of his schooling and development.
Additionally, both parents need to ensure X attends school each day, on time and that he remains at school in class for the duration of the day. They also need to work together to ensure that he undertakes his homework properly. X’s future is likely to be adversely affected if they do not find a way to do this cooperatively.
Ms DD’s report
When the parties gave their evidence, the provisional diagnosis by Ms DD had not been completed. The parties agreed for that report to be tendered, and each party has made further written submissions regarding that report.
Ms DD set out that X displayed restricted behaviours, limited facial expressions, showed limited insight into typical social relationships, and was assessed as experiencing substantial difficulties in social communication and interaction. She recommended X undergo a cognitive assessment as he may also have issues with his executive functioning. She recommended X continue to engage in regular psychological intervention:
to assist to monitor behavioural, cognitive and emotional challenges and to support [X] to engage in his social world and increase his ability to communicate effectively with his peers.
Ms DD further recommended the parties upskill themselves, so they understand how best to support X’s additional needs and to help him understand his emotions and develop skills to express his needs.
Y
Y is 10 years old. She is now in Grade Four at Suburb C School. She also attends Country B school on Saturdays. Y is a strong willed, expressive young person. She is doing very well at school, and appears to be settled there with friends.
Y’s birth was registered in Australia according to the father’s surname, and in Country B with the mother’s surname. Y is also a dual citizen.
Over the COVID-19 pandemic Y’s school attendance appeared poor. However, the mother said Y did attend to her studies at that time, but often neglected to log her attendance, resulting in her being marked absent.
There was some concern raised by the father that Y has gained considerable weight over the last couple of years. The mother acknowledged she is heavier, and also taller than average. Oddly, the mother also pointed out that Y’s feet are big, saying they were long and wide, she can only wear adult men’s shoes, and that this was “from the father’s side” and “not from my side”. This oblique criticism of the father – and Y – was unnecessary.
Y’s time with the father post separation has been marked by periods of no time. Notwithstanding the interruptions to the spend-time arrangements, and the limited time spent since early 2019, Y continues to have a good relationship with her father and wants more time in his care.
The Mother
The mother relied on her affidavits filed:
(a)24 December 2019;
(b)21 February 2020;
(c)6 March 2020;
(d)22 February 2021;
(e)12 March 2021; and
(f)14 January 2022.
At the final hearing the mother was assisted by a Country B interpreter. The mother told the court that she required a translator so that she could understand everything clearly and correctly during the trial. All her evidence was then given through the interpreter.
Whilst the majority of the mother’s evidence was given in a straightforward manner, on occasion her responses were confused and did not directly address the questions asked. She made few concessions, and at times, appeared to have limited insight into her role in the parties’ conflicts, or the children’s needs. I am aware that there may be some cultural issues impacting the manner in which the mother gave her evidence. I also am aware that I may need to make allowances for the fact that her evidence was given through an interpreter. I bear both of those matters in mind when assessing her evidence.
The mother is currently employed at FF Company, a Country B company, having commenced there in late 2021. She lives with the children in Suburb C, in rented accommodation. She agreed in her oral evidence that she is now reasonably able to support herself and the children, provided her employment remains stable, and the father reliably pays child support as assessed.
During the relationship, the mother was the children’s primary carer. Save for a short period of week-about arrangements, she has remained the children’s primary carer post-separation.
The mother said she leaves home around 8.50 am on the two days per week that she physically attends her work site, and arrives home around 6.30 pm to 7.00 pm. She said the other days she is able to work from home. She said X takes himself to school, riding about 10 to 15 minutes on his bicycle, and that Y walks about 10 minutes to her school.
The mother said that as early as 2008 the father’s alcohol consumption was problematic. She said at that time he regularly drank to excess and that when he was inebriated he was aggressive and overbearing.
The mother said the move to Australia in 2009 was always a temporary move, and that she reluctantly agreed to move to Australia on a short term basis. She said the father knows she is dissatisfied, isolated and unhappy here.
The mother said the father subjected her to verbal, emotional, physical and financial abuse following their move to Australia. She said he limited her access to funds, retained the baby bonus for himself, yelled at her, grabbed her and pushed and shoved her. The mother denied that she abused the father, but did acknowledge that in response to the father’s behaviour she would become “very upset and defensive”. She said that on one occasion on Father’s Day in 2014 the father’s parents also became involved in a dispute, with the paternal grandmother grabbing the children away from the mother and the paternal grandfather pushing her over.
The mother said the children were often present during the arguments, and that the father also shouted and yelled at them. She said she and the children were fearful of the father.
In relation to her attendance at the GG Hospital in late 2018, the mother said at that time she was very depressed. She was not admitted to the hospital after being assessed. She subsequently sought assistance from her GP and was prescribed anti-depressant medication. She said at that time she was fearful of the father and his parents and feeling very sad.
The mother acknowledged that the relationship at the end of the marriage “became toxic; there were a lot of fights between us” and that she “called him names which [she] should not have”. She also acknowledged that particularly towards the end of the marriage she drank too much alcohol. She said she drank two to three glasses of wine, or two bottles of beer, four or five nights a week.
The mother said the last violent incident occurred in late 2018 when the father had come home drunk and pushed her out of X’s bedroom.
The mother agreed that both children love their father and are close to him. However, she said Y never asks her if she can spend more time with the father and his family. That is in contrast to what Y told Dr S and more recently the Independent Children’s Lawyer. I note the mother also said in her evidence in June 2022 that she “recently” asked Y about wanting to have overnight stays with the father “and she said she doesn’t want to stay overnight”. She also said “last week” she asked Y if she wanted to go to her father’s house and stay there, and she said no. At the same time, the mother said that she does not discuss the proceedings with the children, and she could not remember what triggered her to ask this question. I am unclear why the mother had these conversations with Y, and has sought to involve her in the adult issues in this manner.
In her oral evidence the mother acknowledged that Y has good friends and enjoys school currently, and that she would miss her friends in Melbourne if she relocated. That was her explanation as to why Y told the Independent Children’s Lawyer in May 2022 that she wanted to go to Country B, but for holidays only. However, the mother said Y would find new friends in school in Country B quickly. She also said if the children speak to the father on video, and “if we manage to come to Australia for a holiday” she did not think Y would miss her father.
When asked about increasing Y’s time with the father if she remained in Australia, the mother said that on some weekends, Y does not want to see her father. The mother said “I can’t force her too much”. She did not accept Y wants to see more of her father, and members of the extended paternal family. Instead, the mother responded that Y often says she is bored when she is with the father.
During these proceedings, however, the mother has readily agreed for X to spend additional and extended time with the father. He has enjoyed additional weekends, and extra time during a period of online learning, as well as extended time over school holidays.
When asked about X’s indication to the Independent Children’s Lawyer in May 2022 that he would like to visit Country B on holidays, but does not want to live there, the mother said that was because he has good friends at his current school. She said he has always had a desire to go to Country B.
Mother’s alcohol consumption
In her affidavit material, the mother acknowledged she drank to excess in 2018. The mother conceded in her oral evidence that she told Dr F she was drinking three to four glasses of wine on three to four evenings each week, which is more than she had deposed to drinking.
Ms P was troubled by the mother’s denials to her that misuse of alcohol was or had been an issue for her. Ms P said the mother’s denials were inconsistent with X’s reports of the mother’s behaviour being impacted by alcohol consumption.
The mother completed a drug and alcohol counselling course with HH Health Service in early 2019. She has also completed an anger management and a parenting course.
The mother told Dr S in early 2020 that her alcohol consumption was then limited to up to two glasses of wine on a weekend, and that in the preceding six months there had only been occasional times she had consumed more than two glasses in one day. She subsequently deposed during that she had stopped consuming alcohol altogether in around late 2021. She told Mr G that prior to stopping, she had been drinking three to four drinks a week.
However, the mother conceded in her oral evidence that she does drink now. She said she drinks on some weekends, and only around two cans of full strength Country B beer. That does not appear to be excessive or affecting her parenting capacity. I note that the father does not assert that the children have complained to him about the mother drinking or behaving poorly following separation.
Mother’s belief regarding the sexual abuse allegations
The mother maintains she genuinely believes that Y has been the victim of sexual abuse perpetrated by the father, and that he continues to pose an unacceptable risk to her. The mother said that risk can be ameliorated by the paternal grandmother or other agreed person being in substantial attendance when Y is in his care. This is notwithstanding the mother’s oral evidence that her relationship with the paternal grandmother is “very bad”, that she does not trust her and that according to Y’s reports, sometimes Ms L does not properly supervise.

I have significant concerns about the impact on the children – and on their capacity to maintain a meaningful relationship with their father – if they relocate to Country B. A relocation would see the children uprooted from their lives in Australia, from their schools, and from their friends and community here. It would substantially reduce the time the children could physically spend with their father, to at best, two weeks over Christmas and a further two weeks over winter in Australia each year, with a possibility that the father could also travel to visit them each year in Country B, subject to his financial capacity to do so.
Both children have a close and loving relationship with their father, and with their paternal grandparents, who have played a significant role in their lives to date. Both children have struggled when their time with their father has been interrupted. This has been particularly felt by X, who is an anxious and sensitive young man, with a strong affinity for his father. The children’s relationships with the father are likely to be adversely impacted by the significantly reduced time they would be able to spend in his care, and by a reduced ability for him to engage meaningfully in their day to day lives. Similarly, the substantial reduction of time spent by the children with their paternal grandmother in particular would likely be experienced as a significant loss by the children.
Dr Q emphasised her view that X needs structure, boundaries, stability, routine and predictability. She said he has a real need for consistency. Changes to his routine can cause him to become severely anxious. She said transitions were “incredibly difficult” for X. I am very concerned that a relocation to Country B, to which he is opposed – with all the inherent changes to X’s schooling, community, lifestyle, and reduced access to his father and other paternal family members – would be very difficult for X to manage.
If he moved to Country B, X would also need to engage with a new psychologist. I note that he has already had to adjust to Ms EE, after Dr Q was no longer available to assist him. The move to Country B would require him to engage with a third treator. I note Dr Q’s concerns about the impact on X and on the progress of any therapeutic intervention if he has to start afresh with a new psychologist.
Further, given X’s additional needs as outlined by Ms DD, I have concerns about the impact on him of not having both of his parents readily available to substantially support and assist him. I note the support avenues outlined by Ms DD that might be available in Australia, including government provided supports for carers, individual therapies and NDIS funding for which X may now qualify.
Notwithstanding X’s additional needs, the mother had not made any specific enquiries into supports for X in the event she moved to Country B. I am not aware whether supports similar to those available to X in Australia would also be potentially available to him in Country B. In her oral evidence the mother suggested that her parents and other family members would provide support. When asked about professional supports, she said she was “planning to organise” that, and anticipated taking him to a paediatrician in Country B. The mother attached a translated webpage screenshot from the VV Hospital to further written submissions. I put little weight on that document for obvious reasons.
As observed, neither child wants to live in Country B. At 14 years old, X’s clear view – that he does not want to live in Country B – should be given some weight. As should his desire for increased time with the father. Similarly, although she is younger, it is appropriate that proper consideration also be given to Y’s views. She also does not want to live in Country B, and wants to spend more time with her father.
The mother has been diagnosed with a major depressive disorder, and may experience further major depressive episodes throughout her life. Not allowing her to relocate to Country B could trigger a deterioration in her mental health. Indeed, stressors could trigger a relapse in her mental health whether she lives in Australia or in Country B.
To Dr S, the mother referred to being stressed and disappointed if she was to remain in Australia, rather than being concerned that she would relapse into a depression. The mother was also described by Mr G as normally confident, optimistic and resilient. Notably, the mother has sought appropriate mental health supports and assistance when required. She engaged well with her treators, and said she was substantially compliant with medication, although there was some evidence to the contrary. The mother made a rapid recovery from a major episode of poor mental health in mid-2021. There was no evidence that her parenting capacity had become impaired to the extent that the children were adversely affected at that time. These matters give me significant comfort.
I have concerns the mother has not adequately considered the children’s views about this proposed move, and the impact it will have on their relationships with the father. Additionally, I have some concerns about the mother’s commitment to fostering and supporting the children’s relationships with the father. She does not apparently see much benefit in the children having a relationship with their father. She did not really acknowledge the impact on X of being separated from his father in the event of a relocation. Similarly, she was somewhat dismissive of Y’s views that she wants more time with the father, saying she really only wanted to see her cousins, that she is reluctant to go to her father’s on some weekends and is often bored with him. She did not think Y would miss the father if she lived in Country B. She did not propose any overnight time until Y turns 14 – which means not until 2026.
Additionally, there were periods of time Y did not see her father as the paternal grandmother was unable to supervise, and the parties were unable to reach an agreement as to an alternate supervisor. It took some months for the mother to agree to the paternal aunt being a supervisor. The mother did not appear to have significant concerns about the periods of time that Y missed out on seeing her father. She did not make Y available for time shortly before the trial commenced over a discussion about Harmony Day.
The mother remains of the view that Y has been sexually abused by the father, and that he poses an unacceptable risk to Y. Dr S opined the mother would probably not change her beliefs about risk notwithstanding the findings made by this court, and those beliefs would likely compromise the mother’s ability to support Y’s relationship with her father. I further note Dr S’s view that the likelihood of the mother really supporting the children’s relationship with the father in the event of a relocation is “significantly diminished”. In the circumstances there seems to me to be a real risk that if the mother were permitted to relocate with the children, she may not support the orders I make for their time with the father.
There may then be further proceedings in the Country B courts. As already set out, there is no easy mechanism to have orders of this court recognised and enforced in Country B. Moreover, if there were further proceedings in Country B, the court there may not have the same access to the information and evidence that is before me. A court in Country B would not be bound by my findings, and may come to different conclusions. Additionally, it is unlikely a Country B court would enforce orders for the children to spend time in Australia.
Notably, there was no evidence by any of the professionals to support a finding that the mother’s parenting capacity would be impaired in the event orders were made for Y to spend unsupervised time with the father, or that she would be unable to cope psychologically with such orders. The mother herself only said if unsupervised time was ordered she would be “very worried”. She did not put it higher than that. At any rate, orders that another adult be in substantial attendance at least for overnight stays will, in my view, provide the mother with sufficient reassurance regarding Y’s safety.
Having another adult present for overnight periods will also provide protection in relation to the father’s alcohol misuse.
I have some reservations about the proposals for time put forward by the father and the Independent Children’s Lawyer as they envisage very different routines for Y and for X. However, the children have been on different routines for a protracted period and neither parent said this was causing the children significant difficulties. Dr S in his oral evidence said for these children, given their different ages, history of care with each parent, genders and interests, having different arrangements for time was not inappropriate.
But there is a fundamental logistical problem with the proposal by the Independent Children’s Lawyer that X spend fortnightly blocks with each of his parents. If X spends blocks of two weeks with each parent, then Y’s fortnightly weekend arrangement will not dovetail in. Over a four week period, the arrangements would be:
(f)Weekend 1 – both children with the father
(g)Weekend 2 – X with the father and Y with the mother
(h)Weekend 3 – Y with the father and X with the mother
(i)Weekend 4 – both children with the mother.
The children would only spending two out of four weekends together. They would also spend weekends separately with each of their parents.
I understand and appreciate that X does not like packing up and moving on a weekly basis. But the proposals for him to move to a fortnightly regime is not, for the reasons to which I have just referred, practicable.
I note the father’s application is that X live with him. That does not appear to be reasonably practicable to immediately implement. The father currently resides with his parents in U Town. Although the father said he can commute to X’s school, it seems to me that would impose a considerable travel burden on X. I also note that X has lived primarily with the mother throughout his life. The significant step of changing his residence is not supported by the Family Consultant. There is no evidence that he has expressed a wish to live primarily with his father. This would be a very significant adjustment for him to manage, and in light of the evidence that X can become quite anxious, I am concerned not to overwhelm or overburden him.
It seems to me that by the commencement of the 2023 school year, X can commence to live with his parents on a week about basis. This ‘lead up’ will give the father time to secure appropriate accommodation, and give X time to ready himself for this change in his care arrangements. The progression of time to week about will be dependent upon the father engaging with drug and alcohol counselling, and with his psychiatrist. As set out, I understand X wanted longer periods of time to settle in each household, but that does not seem to be able to be managed when considering his sister’s best interests as well.
In relation to Y, I am of the view that her best interests will be met by immediately commencing spending three nights a fortnight with the father. Dr S agreed that if the court was not of the view that the father poses an unacceptable risk, that proposal was appropriate.
Further, I am satisfied that Y’s best interests will be met by her time with the father reverting to a week about arrangement commencing in 2024. Y was having week about time with the father at the end of 2018/early 2019. There is no suggestion that she found it emotionally difficult being away from her mother for that time, or that she was not managing in the father’s care. Indeed, it was by consent that arrangement was implemented.
Y wants more time with the father. Commencing the three night weekends will give Y the opportunity to settle into spending time with her father, before progressing to an equal time arrangement to be implemented in 2024. In his evidence, provided the court was of the view that the father did not pose an unacceptable risk, Dr S did not envisage any issues with both children moving to a week about arrangement within around 12 months. The progression of Y’s time to week about, however, will be similarly dependent upon the father complying with orders for counselling.
I note the father’s proposals include that a member of his family will be in substantial attendance until 2024. However, I also note Dr S’s evidence that there is likely little utility in another adult being present during the day. He said as Y is older and X will also be present, these are significant protective factors, and having another adult would “not add much”. He said it was reasonable for Y’s day time visits to be unsupervised, provided X is also there. He also said it was probably reasonable for even overnight times to be unsupervised, although he was hesitant about that.
In the circumstances it seems to me that it is appropriate that another adult be present only during times Y is staying overnight with the father. The father has proposed this to alleviate some of the mother’s concerns, and his mother and sister have indicated they will assist. Their attendance will provide the mother with some comfort, and should make it more palatable for her to encourage and support Y’s time with the father.
In relation to holidays, the mother’s fall-back proposals effectively proposed a sharing of the school holidays for X, subject to the mother being able to travel to Country B annually during school holidays. Both the Independent Children’s Lawyer and the father proposed effectively an equal division of school holidays for both children.
I am of the view that both children should spend holidays and special occasions with each of their parents. That should commence over the long summer holidays in 2022/2023 with X spending three weeks with the father, and for Y to spend four consecutive nights with the father in each of those weeks. That will provide Y with an opportunity to become familiar with spending longer periods in the father’s care, having only had day time contact with him for over three years.
From the school holidays in 2023, the children shall spend half of each holiday period with each of their parents, including the long summer holidays.
No one addressed me in relation to special occasions and they each proposed slightly different arrangements. I have done my best to make orders that reflect the parties’ substantive agreement that there be a sharing of the special occasions.
I am not prepared to make an order restraining the mother from living within 20 kilometres of the children’s school. Firstly, no one made any submissions to me regarding the imposition of that limitation. Secondly, the orders I am making are for equal shared parental responsibility. The children are currently attending schools agreed by the parties. That cannot be changed without the parties’ agreement or court order. No one was suggesting there was a dispute about schools. It is a matter for each of the parents as to where they wish to live, and how they will get the children to the school they have agreed upon. I also note that the father currently lives significant kilometres from the children’s school, and he said travelling between U Town and the children’s schools was quite feasible, at least for a period of time.
Travel to Country B
It is clear that the children would benefit significantly from being able to travel to Country B and visit their maternal family.
The parties all agree that it is appropriate that the mother leave a security bond prior to any travel with the children. The father and the Independent Children’s Lawyer propose the sum of $100,000. The mother proposes $50,000.
The case law makes it plain that the sum to be provided is one that will realistically entice the travelling parent to return to Australia and that will also provide adequate funds to the remaining parent to bring action to agitate for the children’s return; Line & Line (1997) FLC 92-729. I must also consider the degree of risk that the mother will not return, whether the country is a signatory to the Hague Convention, and the hardship that will flow if the security is increased or decreased.
I am satisfied there is a real risk that the mother could determine to remain in Country B if she was permitted to travel there with the children for holidays. She has a strong desire to return to live in Country B. Her counsel described in his closing that she has a “desperate longing” to see her family, and that her desire to return to Country B “hasn’t wavered” since her arrival here in 2010. She feels unsupported and isolated here. I accept that she has travelled with the children multiple times previously and returned, but those trips pre-dated the complete breakdown of the parties’ relationship and the allegations of sexual abuse. Whilst Country B is a signatory to the Hague Convention, there are aspects of this particular case that could potentially be relied upon by the mother in Country B to enliven the discretion to not order the return of children wrongfully retained or removed on the basis of an exception.
In my view, the sum of $75,000 is an appropriate security amount. That is a sufficiently significant sum that will, in my view, both deter the mother from breaching my orders requiring her to return, or would alternatively assist the father in bringing proceedings in Country B if she retained the children there. If the sum were higher, there is a real possibility that the mother will be unable to raise that amount, and therefore be unable to travel.
In my view, however, such travel should be delayed until the end of 2023/early 2024. The children will be a little older by then, and will have had a chance to settle into the new regime of time that I am ordering.
I will order that the parties ensure the children’s passports are kept up to date. No submissions were made to me, however, as to who should hold the passports and why. There was some suggestion that Chambers would be provided with a minute of proposed consent orders with respect to the children’s passports. That did not eventuate and the parties will need to work that out themselves.
Country B school
The parties agree the children will continue to attend Country B school. Each party will take the children there on the weekend the children are with that parent.
The father sought an order the children’s attendance be at the mother’s expense. I have no evidence as to who has paid for that to date, or indeed the costs of Country B school, or the capacity of either parent to make contributions.
I note that previously in the proceedings there was a notation to orders made on 14 March 2019, that each party would pay half of the children’s educational expenses including the Country B school.
Given that both parties agree the children should attend, that both parties will share in taking the children there, and that I am ordering equal shared parental responsibility, it seems in all the circumstances appropriate that the parties share the costs of Country B school.
Counselling and treatment
For the children
It remains unclear to me what the benefit of counselling like that offered by TT Centre would be for Y. The alleged abuse occurred three years ago now. Y does not bring it up. She does not exhibit any behavioural issues that might suggest she is struggling to manage her psychological well-being. According to SOCIT, Y did not appear to be troubled by the alleged touching at any rate. Indeed, the mother conceded that if she did receive counselling regarding the sexual abuse, this could negatively impact her relationship with her father. Moreover, having carefully considered the evidence I have am not formed a view that the abuse occurred. Nor am I satisfied that the father poses an unacceptable risk to Y.

It does however seem to me appropriate that Y engage with a protective behaviours program. This will give Y understanding about safe behaviours, her body, who can touch, or check her genitals, and importantly give her an appropriate vocabulary to describe her body and her feelings. The agency who provides this support should not be doing so on the basis that Y has been abused, but to provide education and information to Y.
It is clear that X needs to continue to attend upon his psychologist. I do not understand that to be opposed by any party.
For the parents
As observed by Gaudron J in AMS at paragraphs [85]-[87], the power of the court to exercise its welfare power and place limits on a parent’s conduct is restricted only to what is necessary for the welfare of the child. It is not a supervisory power. I also note the comments by the Full court in Oberlin & Infeld [2021] FamCAFC 66, that an order for treatment cannot be a self-standing order, untethered from a particular parenting order.
In the circumstances of this case, I am not of the view that the mother needs to be ordered to attend upon her treators. It is apparent she has appropriately sought support when required.
However, I remain less certain about the father’s mental health and alcohol abuse issues. It does seem to me that there is a real need for the father to fully and deeply address his chronic alcohol issues which he minimised and obfuscated in his evidence. I note orders were made in March 2019 for both parties to undertake drug and alcohol counselling. The mother did. The father did not. In his oral evidence he said he attempted to enrol in a program through WW Hospital but had been unable to take time off work to attend. The father has engaged with AA in the past on at least one occasion, which has been unsuccessful.
Whilst he said he is engaging well with his psychiatrist to address the underlying issues that triggered his alcohol abuse in the past, and that he employs various techniques to reduce his stress and anxiety, the court has not had the benefit of hearing evidence from his treators.
It seems to me that in this particular case, it is necessary for the children’s welfare that the father both undertakes drug and alcohol counselling and that he continue to engage with his psychiatrist in order for the children’s time with him to progress. This is particularly given that he will shortly move out from his parents’ home – meaning he will then be the only adult in the home attending to the children. Accordingly, I need to be satisfied that he remains sober at all times he has the children in his care, and that his mental health is being monitored and remains stable, so that he is able to look after the children. If the father resumed drinking at the levels he has in the past, his parenting capacity would obviously be seriously impaired.
Restraints
Clearly the evidence in relation to the parties’ drinking makes it appropriate that there be orders restraining them from consuming alcohol to excess when they have the children in their care.
Proposed notations
I note there were notations proposed by the Independent Children’s Lawyer. It is to be remembered that notations are not orders. They are not binding on the parties or the court. There were no submissions made in relation to those notations. I do not propose to make those notations.
Registration of orders
The parties agreed that if the mother was permitted to relocate to Country B, she should do all necessary acts and things to register the final orders in a Country B Court. I will not be making this order, in circumstances where the mother’s application to relocate has not been granted, and where the evidence before me identified there was no simple mechanism for registering orders in Country B.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding six hundred and eighty-two (682) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 8 December 2022

File number:	MLC 11988 of 2018
Judgment of:	CARTER J
Date of judgment:	8 December 2022
Catchwords:	FAMILY LAW – CHILDREN – international relocation – where the mother seeks to relocate to Country B – whether Australian parenting orders can be registered or enforced in Country B – allegations of sexual abuse perpetrated by the father – unacceptable risk considered – allegations of poor mental health and alcohol misuse by both parties – where relocation not permitted – whether orders permitting travel to Country B for holidays are in the best interests of the children – whether the mother presents a flight risk – appropriate amount of surety.
Legislation:	Evidence Act 1995 (Cth) ss 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 69ZW Hague Convention on the Civil Aspects of International Child Abduction 1980 Art. 21
Cases cited:	A & A: Relocation Approach [2000] FamCA 751 Adamson & Adamson [2014] FamCAFC 232 AMS v AIF [1999] HCA 26 Beckham & Desprez [2015] FamCAFC 247 Fitzwater & Fitzwater[2019] FamCAFC 251 Godfrey v Sanders [2007] FamCA 102 Heath v Hemming (No 2) [2011] FamCA 749 Isles & Nelissen [2022] FedCFamC1A 97 Johnson & Page (2007) FLC 93-344 KB & TC [2005] FamCA 458 Keane & Keane [2020] FamCA 99 Line & Line (1997) FLC 92-729 M & M (1988) 166 CLR 69 Mazorski v Albright [2007] FamCA 520 McCall v Clark [2009] FamCAFC 92 H & Miles [2007] FamCA 1230 MRR & GR [2010] HCA 4 Oberlin & Infeld [2021] FamCAFC 66 Taylor v Barker [2007] FamCA 1246 U v U [2002] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	682
Date of last submission:	16 September 2022
Date of hearing:	27 – 29 April 2022 2 – 5 May 2022 6 – 7 June 2022 19 August 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Andrew Combes
Solicitor for the Applicant:	Rowan Skinner & Associates Lawyers
Solicitor for the Respondent:	Mr Patrick Mulligan, Mulligan Lawyers
Counsel for the Independent Children's Lawyer:	Dr Renata Alexander
Solicitor for the Independent Children's Lawyer:	Macgregor Barrister & Solicitors

MLC 11988 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KISHO Applicant
AND:	MR ARMIN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CARTER J
DATE OF ORDER:	8 December 2022