Bilson & Trang - [2023] FedCFamC2F 1734

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bilson & Trang [2023] FedCFamC2F 1734

File number(s): NCC 27 of 2019

Judgment of: JUDGE BETTS

Date of judgment: 13 December 2023

Catchwords: FAMILY LAW – parenting – final orders – two children ages 10 and 5 – where the mother is primary carer and seeks to relocate from Town B to Sydney – where the Father is the biological parent of the youngest child only – where the Father opposes the relocation and seeks an increase in time with the youngest child – where the relationship between the parents was volatile and remains high conflict – where the youngest child has autism – where there mother’s attitude toward the father raises serious concerns as to her willingness and capacity to promote the father’s relationship with the child – best interests of child for mother to have sole parental responsibility, child live with mother in Town B area and have an increase in time with father.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Adamson & Adamson (2014) FLC 93-622

U & U (2002) FLC 93-11

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 272

Date of last submission/s: 5 July 2023

Date of hearing: 3-5 July 2023

Place: Newcastle

Counsel for the Applicant: Mr Taylor

Solicitor for the Applicant: Grace Family Law

Counsel for the Respondent: Ms McKensey

Solicitor for the First Respondent: Collett Lawyers

Counsel for the Independent Children's Lawyer: Mr Squires

Solicitor for the Independent Children’s Lawyer Legal Aid NSW
ORDERS

NCC 27 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BILSON

Applicant

AND:
MR TRANG

First Respondent

MR MURRAY

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

13 DECEMBER 2023

THE COURT ORDERS THAT:
1.All previous Orders in relation to the children X born in 2018 and Y born in 2013, are discharged.
2.That X and Y live with the mother.

Y
3.The mother have sole parental responsibility for Y.
4.Y spend time with the second respondent father, Mr Murray, as agreed in writing between the mother and the second respondent.
5.The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of NSW to change the name of the child Y Murray born in 2013 to Y Trang and it is requested that the Registrar of Births, Deaths and Marriages for the State of NSW, upon the Application of the applicant referred to herein, give effect to this Order by doing all acts and things necessary to register the change of name of Y Murray born in 2013 to Y Trang pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the second respondent has not been obtained.
6.Unless otherwise agreed in writing between the mother and the applicant father Mr Bilson, the child Y spend no time with him.

X
7.The mother have sole parental responsibility for X.
8.In exercising parental responsibility in relation to X, except in cases of emergency, the mother will notify the father of any major or long-term decisions she intends to make for X no later than fourteen (14) days prior to the decision taking effect.
9.The mother is restrained from relocating X's residence outside of a 50 kilometre radius of Town B/Region C.
10.X spend time with the father as agreed in writing between the parents but failing agreement as follows:
During NSW school terms
(a)Until X commences Term 1 of Year 2 (in 2026) X is to spend each alternate weekend from the conclusion of school/daycare Friday or 3.00pm if a non-school or daycare day, until the commencement of school or daycare on Tuesday or 9.00am if a non-school or daycare day.
(b)Upon X commencing Term 1 of Year 2 in 2026, the father's alternate weekend time is to commence at conclusion of school on Thursday or 3.00pm if a non-school day until commencement of school Tuesday or 9.00am if a non-school day.
(c)As of X commencing year 1 in 2025, the father's alternate weekends during school term are to commence the first weekend in Term 1 and Term 4. Weekend time in Term 2 is to align with the weekend that does not include Mother's Day. In Term 3 the father's weekend is to align with the weekend that includes Father's Day.

During NSW school holiday periods
(d)During the New South Wales school holiday periods commencing in 2024 the time in Orders 10a and 10b is suspended and in lieu X shall spend time with the father as agreed in writing between the parents but failing agreement as follows:
(i)During the New South Wales Term 4 school holiday period in 2023 from 3.00pm on 24 December 2023 until 3.00pm on 29 December 2023 and from 3.00pm on 8 January 2024 to 3.00pm on 13 January 2024.
(ii)From 2024 onwards the father will have one week with X during the end of Term 1, 2 and 3 school holiday periods commencing at the conclusion of school on the last day of school Term and concluding at 3.00pm on the middle Friday of the holiday period.
(iii)During the NSW Term 4 holiday period in 2024 the father will have X from 3.00pm on the first Saturday after school finishes until 3.00pm on 24 December 2024. The father will have X from 3.00pm on 3 January 2025 to 3.00pm on 10 January 2025 and from 3.00pm on 17 January 2025 to 3.00pm on 24 January 2025.
(iv)During the NSW school Term 4 holiday period in 2025 and each odd year thereafter, the father will have X from the conclusion of Term on the last day of school until 3.00pm on the middle Saturday and in 2026 and even years thereafter the father will have X from 9.00am on the middle Saturday until 3.00pm on the last Friday.

11.If X is not already in the father's care, X is to spend time with the father on the first day of Naidoc week as agreed in writing between the parents but failing agreement from 3.00pm until 6.00pm on school days and 10.00am until 3.00pm on non-school days.
12.In order to facilitate the father's time with X, he will collect X from daycare or school at the commencement of the time and return X to daycare or school at the conclusion of the time. In the event the changeover occurs on a non-daycare or non-school day the parties will conduct changeovers inside the McDonalds at D Street, Town B.

CHANGE OF NAME REGARDING X
13.Within ten working days of the date of these Orders, the mother will complete the form required to register X's birth with the Registrar of Births Deaths and Marriages in NSW and her solicitor will send the form either electronically or by registered post to the father to sign.
14.Within five working days from receipt of the application from the mother pursuant to Order 13, the father will return the form signed by him to the mother's solicitor by registered post.
15.Within five working days from the receipt of the completed application form from the father pursuant to Order 14, the mother will apply to register X's name as "X Bilson-Trang" with the Registrar Births Deaths and Marriages NSW and will pay all associated costs.
16.The mother will provide the father with a copy of the registration within seven days of submitting to the Registrar of Births Deaths and Marriages.
17.Once issued, the mother will provide the father with a certified copy of X's Birth Certificate.
18.Pursuant to Section 28(5) of the Births, Deaths and Marriages Act NSW 1995, the Registrar will register X's name in the form specified in Order 15 of these Orders.
19.The mother shall serve a sealed copy of these Orders upon the Registrar Births, Deaths and Marriages of NSW.

AUTHORITIES
20.These Orders will be sufficient authority for any medical practitioner, allied health professional or ambulance officers who may treat the child from time to time to speak freely with the father about the child and provide the father (at his expense) with any information he may reasonably request about the child and any diagnosis and treatment the child may be receiving including providing a copy of any relevant report.
21.These Orders will be sufficient authority for the school/daycare/preschool attended by X from time to time to provide the father upon issue a copy of each school report, school newsletter, school photographs, report/s on progress and/or behaviour issues at school, any notification to parents of events affecting the child and events to which parents are normally invited.
22.The mother will do all things necessary and required to provide a copy of these Orders to all medical practitioners/allied health professionals/schools and daycares that X attends or has interactions with, and to the NDIS.
23.This Order authorises the NDIS to provide the father with any information concerning X as reasonably requested by the father (at his expense) including providing the father with copies of any reports the NDIS considers appropriate.

COMMUNICATIONS
24.All communication between the parents except in the case of emergency, occur through use of the co-parenting App "AppClose".
25.Both parties keep the other informed of their contact phone number, email address and residential address and notify the other of any change to those details within twenty-four (24) hours thereof.

RESTRAINTS
26.The mother is hereby restrained from using physical discipline (including biting or pulling hair) against X or allowing or causing any third party to do so.
27.Both parents are restrained from denigrating the other in the presence or hearing of X or from allowing X to remain in the presence or hearing of a third party who does so.
28.The father is hereby restrained from consuming illicit substances when X is in his care or in the twenty-four (24) hours before.
29.The father is hereby restrained from consuming alcohol while X is in his care, or from being in any way affected by alcohol when X is in his care.
30.Each party is restrained from wilfully exposing X to "Family Violence" as defined in section 4AB of the Family Law Act, a copy of which section will be attached to the Order.

PASSPORTS AND TRAVEL
31.The parties are at liberty to do all things and sign all documents to cause an Australian Passport to be issued for X and to thereafter ensure that X continues to hold a valid Australian Passport.
32.The costs associated with the application for a passport and its renewal are to be shared equally between the parties.
33.Within two (2) business days of receipt of X's passport, the mother must:
(a)Provide a certified copy of X's passport to the father;
(b)Make arrangements for the passport to be delivered to the offices of "E Lawyers" in Town B.

34.Thereafter, unless otherwise agreed in writing, the parties will ensure that X's passport is held in safe custody at E Lawyers, subject to these Orders.
35.The parents will equally share all reasonable costs incurred by E Lawyers in relation to storage and release of X's passport, trust account fees and any other associated costs.
36.Unless otherwise agreed in writing X is hereby permitted to travel overseas in the care of either of his parents, during the time the travelling parent would ordinarily spend with X, provided the travelling parent has written to the other parent with the following information, not less than three months before the intended departure date:
(a)The time and date of departure from Australia and time and date of return to Australia; and
(b)The address and contact details of where X will be staying throughout the trip including the names of hotels and other accommodation; and
(c)A copy of the flight or other transport details and any available itinerary; and
(d)A certified copy of X's current passport if the parent does not already have one;
(e)Should the mother wish to travel overseas she will pay by way of a security bond the sum of $25,000.00 into the trust account of E Lawyers (or another law firm as agreed between the parties in writing) before travelling with such funds to be distributed as follows:
(i)To be repaid to the mother within fourteen days of X's return to Australia;
(ii)To be released to the father within fourteen days of X not returning on the day that he was due to return to put towards the costs of initiating legal proceedings to recover X and/or the costs of travel overseas for the purpose of recovering X and returning him to Australia.

37.Unless otherwise agreed in writing, upon the non-travelling parent being provided with the information in Order 36 above, both parents will authorise E Lawyers to release X's passport to the travelling parent within seven days of a request.
38.The travelling parent must return X's passport to E Lawyers either in person or by registered post, within seven days of X arriving back in Australia.
39.In the event of the hospitalisation or death of the Maternal Grandfather or Maternal Great Grandmother, the mother is at liberty to travel to Country F for up to two weeks (unless otherwise agreed in writing with the father) with X in order to visit the family or attend the funeral provided that the mother gives notice to the father at least forty-eight hours prior to departure and lodges a security bond of $25,000.00 into the trust account of E Lawyers prior to departure with such funds to be distributed as follows:
(a)To be repaid to the mother within fourteen days of X's return to Australia;
(b)To be released to the father within fourteen days of X not returning on the day that he was due to return to put towards the costs of initiating legal proceedings to recover X and/or the costs of travel overseas for the purpose of recovering X and returning him to Australia.

40.In the event that the mother travels to Country F with X pursuant to Order 39 during time that X would ordinarily be with the father, then the parties will arrange for X to spend "make-up time" with such makeup time to be provided within three months of the mother's return to Australia.
41.The proceedings be removed from the list of active pending cases.

NOTATION:
A.When X is older and when it is developmentally appropriate, the Court expects that each parent will enable X to telephone or communicate with the other parent by electronic means at any reasonable time that X expresses a wish to do so.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS

These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
OVERVIEW
These are parenting proceedings relating to two children:
·Y Murray born in 2013, who is almost ten years of age; and
·X Bilson born 2018, who is presently five years of age.
The mother of both children is Ms Trang (“the mother”).
The applicant in the proceedings is Mr Bilson, who is the biological father of X. For a time, there was a second respondent in the proceedings, Mr Murray, who is the biological father of Y. Mr Murray has played but a limited role in the proceedings, having been joined as second respondent in December 2019 and having effectively disengaged from the proceedings in around mid-2021.
In a practical sense, most of the dispute in this case relates to the older child, X, and most of the focus of these reasons will be in relation to X and his circumstances, although obviously there is some overlap in terms of his sister, Y.
The mother was born in Country F but has been a permanent resident of Australia now for some years. She moved to Australia in 2008 at about the age of twenty, where she attended University. There she completed post graduate studies in around 2011.
The relationship between the mother and Mr Murray was a relatively short and eventful one. She started a relationship with Mr Murray, an Australian citizen, in 2012. They married in Country F in 2012, and in late 2012 the mother returned to Australia on a partner visa. The mother and Mr Murray subsequently settled in the Town B area in around early 2013, where the mother has remained living ever since.
The mother and Mr Murray had a volatile relationship, which regrettably was characterised by Mr Murray behaving violently to her, most significantly in early 2013, when he kicked the mother while she was pregnant in the early days of her pregnancy with Y. The mother and Mr Murray had already separated within about a month of Y being born, and in 2014 Mr Murray moved to Melbourne, not having spent any time with Y since.
Mr Murray is in every sense an “absent parent” in Y’s life, and to a very large extent, the orders that the mother seeks in relation to Y are essentially being sought on an undefended basis.
In terms of the applicant father, Mr Bilson, he and the mother commenced a relationship in the Town B region in around late 2016. Like her relationship with Mr Murray, the mother’s relationship with him could be described as volatile. Indeed, it was so volatile that the parties were not actually able to manage living under the same roof for more than about three (3) weeks at a time. The usual cycle was that they would argue, and the mother would kick the father out of her home.
I should say that when I refer to “the father” in these Reasons, I am referring to Mr Bilson except where otherwise stated.
The relationship between the mother and the father was characterised by some family violence in that the mother would push, shove or scratch the father and occasionally punch him during arguments, as well as calling him disparaging names such as a “white Aboriginal”. The father has Aboriginal background and identifies as Aboriginal, and obviously such an insult from the mother caused him a degree of angst.
Equally, having seen and heard all of the evidence in this case, I have little doubt that the mother found the father rather a difficult man to live with. He drank far too much alcohol during their relationship. He used illicit substances. He could be quite volatile, argumentative and difficult with her. He perhaps had a penchant, evidenced also post-separation, to be rather harassing and to make something of a nuisance of himself.
After separation between the father and the mother, there was a particular allegation made by the mother against the father in late 2018, when she rang him “out of the blue” to tell him that he was “disgusting”, that she “knew what he had been doing”, and that Y had apparently revealed to her that the father had showed Y his penis and showed her “how to wee like a boy”, as well as “touching her boobs”.
The father, an educator by occupation, was shocked. He immediately contacted Police to make sure that they were aware that he had done nothing wrong.

In many ways, this unfortunate allegation set a tone for many of the events that followed.
I should also record that when the father contacted Police on this occasion, he sounded intoxicated, which given his significant alcohol abuse during the relationship and subsequently, he probably was. Police told the father they would not investigate this matter unless the mother made a complaint to them, which she did not at that time. Nonetheless, the mother raised it as a concern, and as I indicate, it created significant increased tension in what was already a highly volatile situation.
The father attempted to organise some mediation with the mother after this event. The mother refused to go, but she offered him some supervised time with X, which he had little choice but to accept.
Subsequently, proceedings were commenced by the father in this Court, and, by way of overview, the father’s time was initially supervised before graduating to unsupervised time in June 2020, the latter being by way of agreement between the parties, which was subsequently formalised by way of an interim order.
It would be fair to say that the co-parenting relationship between the father and the mother has been fractious. They struggle to communicate, and as I have indicated, the father has a penchant to behave in a harassing manner on occasions.
Ultimately, following the appointment of an Independent Children’s Lawyer (“ICL”) in the proceedings and the commissioning of two family reports, the matter came on for a hearing before me in July of this year. To some extent, the issues had narrowed by that stage, although it was still a difficult case.
X
Fundamentally, in relation to X, the mother is seeking to be able to relocate from the Town B region where X and Y and she have always lived and to move to Sydney. The mother proposes that if she is able to relocate to Sydney, that the father can spend time with X for approximately one weekend per month together with half of the school holidays.
The father opposes the relocation. His position is that the mother should not be allowed to relocate but that she should continue to live in the Town B region and that his time with X should increase from the current arrangement, which is effectively three nights per fortnight (Friday afternoon until Monday morning), to an immediate five nights per fortnight arrangement, together with half of the school holidays.
If the mother is unsuccessful in her application to relocate with X, she seeks that the father’s time with him remain the same - that is to say, three nights per fortnight. On any reasonable view, this is ungenerous on her part.
The mother complains that she cannot really continue to live in Town B, because the father is harassing her and otherwise making life difficult, not only in his dealings with her but also in his dealings with X’s various treating medical practitioners.
A complexity here is that X has been diagnosed as being on the Autistic Spectrum. He requires various medical and allied health interventions, and the mother’s complaints about some of the father’s behaviours are well and truly justified. The mother says she fears the father and does not want to bump into him, and she is anxious about bumping into him in Town B, and particularly she is anxious about the father coming into contact with Y.
The father runs a general case that the mother is an alienator in relation to X, that she is doing the minimum she can to promote his relationship with X, and that she “cannot be trusted” to continue to facilitate their relationship in the event that she relocates.
As I indicated a little earlier, the issues in the matter had narrowed somewhat by the time of the final hearing. In her Case Outline filed just days ahead of the hearing, the mother had been proposing that the father spend no time with X:
…should the Court find that the father is an unacceptable risk.
This is the most draconian application the mother could possibly make, which dovetails very neatly with her proposal that the father spend no time with Y. At the hearing, the mother abandoned her ‘risk case’, although she still maintained that the father posed problems for her and that X’s best interests would still be better served by her being able to relocate to Sydney.
There are some other issues in the case of perhaps lesser significance, relating to X’s name, about which the parties are unable to reach an agreement, and about overseas travel. The mother has understandable desires to travel back to Country F, where her family is based and where she still has family members. Country F is not a signatory to the Hague Convention, and the father does not trust her to go. He fears that the mother might remove the child permanently, leaving he and X in a very difficult position. There are various other issues as well, which I will address later on - but fundamentally these are the major issues in relation to X, namely: the relocation question, the time that X should spend with the father, the issue of his name and overseas travel.
Y
In relation to Y, the issues are much more narrow. I propose to deal with the orders and issues concerning Y at the end of this judgment, after I have dealt with the issues concerning X. That does not mean that I entirely quarantine Y from X. Given that they live in the same household and there are common issues to both, I will endeavour not to be unduly repetitive in my reasons, but it is a matter of convenience that I address the issues concerning Y last.
Y’s name, I should add, is also in dispute, although when I say it is in dispute, Mr Murray, of course, is not actively seeking any orders in the proceeding at all, and ultimately the ICL supports the mother’s proposal in relation to Y’s change of name.
As a general statement, the ICL’s position is that the relocation should not occur, and that the father’s time with X should be increased in the Town B region. The ICL has also helpfully proposed his own overseas travel order and related passport order, which I will turn to a little later. The mother adopted the ICL’s proposed overseas travel orders (exhibit 30).
THE HEARING
The matter proceeded to final hearing on 3, 4 and 5 July 2023. Mr Taylor of counsel represented the father, Ms McKensey of counsel represented the mother and Mr Squires appeared as ICL.
The father relied upon:
·     a Case Outline document filed 30 June 2023;
·     his Amended Initiating Application filed 5 June 2023 (although the orders he sought were superseded by those set out in the draft minute which appears as exhibit 29);
·     his affidavit filed 5 June 2023.
The mother relied upon:
·     her Case Outline document filed 30 June 2023;
·     her Further Amended Response filed 25 May 2023; and
·     her affidavit filed 25 May 2023.
The ICL relied upon:
·     a Case Outline document filed 30 June 2023;
·     a Child Inclusive Conference Memorandum dated 11 April 2019 and a Child Inclusive Conference Memorandum dated 16 June 2021 (these two Memoranda being exhibits 9 and 10 respectively);
·     the first Family Report of 2 July 2020 (exhibit 11); and
·     the second Family Report of 18 November 2022 (exhibit 12).
There was a tender bundle prepared, from which various exhibits were tendered. The parties, namely the father and the ICL, also provided some draft amended orders, as I have indicated.
For the purposes of arriving at a decision in this matter, I have re-read each and every page of the affidavits and each and every one of the exhibits. I have also reviewed the notes that I took of the hearing and of the oral evidence.
I would merely make these observations about the two parents, both of whom I can say that I have quite vivid recollections of in the witness box.
The father is a somewhat difficult man. In his evidence, he could be vague and at times argumentative. Sometimes, he went off on tangents, and his evidence was quite frankly difficult if not impossible to understand. For example, at one point, he was asked how he described his own conduct during arguments that he was having with medical practitioners and the like. Having said: “I show the other person the same respect they show me” and that “It is only disrespect that I take issue with” he then went on to say that he himself was “not entitled to respect” per se.
I could not make any sense of that evidence. To be fair to him it seems to me that at times, when he is stressed or anxious, the father can become quite “flighty” in the manner in which he gives his evidence, and he definitely can go off on tangents and be difficult to understand. It is not only myself who has seen this. The mother has no doubt seen it, but so too have various other people who have had to deal with the father at different times.
In relation to the mother, I was concerned about her reliability in general. Although English is not her first language, she speaks English very well, and she is obviously a highly educated and intelligent woman. Nonetheless, her evidence was out-and-out false in at least a number of respects, particularly in relation to some physical discipline that she meted out to X at day care, in which her evidence was frankly risible, and it cast great doubts on her reliability in general. Put shortly, the mother had obviously behaved in a physically abusive manner to X by way of discipline, as was witnessed by more than one person, yet she would tell me everything except the truth about what she had done. I was most unimpressed with her evidence about this, and I will turn to that a little later. In general, I was also unimpressed with her evidence in relation to the alleged sexual abuse by the father of Y, which evidence was contradictory and which I am satisfied was driven at least in part by malice towards the father.
CHRONOLOGY OF EVENTS
I propose then to address the chronology now by way of overview, before turning to a consideration of the legal framework and the relevant considerations to which the Court is obliged to have regard in making a decision.
The father
The father was born in 1983. He is a forty year old educator living in the Town B region. He has been working at the same employer for seven years. He is a long-term resident of Region G, NSW. His extended family live at Town H, approximately an hour away. He has strong roots and connections in the Town B region.
The mother
The mother was born in 1988 in Country F. As I indicated earlier, she moved to Australia in 2008 and has been living here ever since. She conducts her own business from her home in Town B. In more recent times, she has acquired an interest in a hospitality business in Town B and in Sydney. She has been regularly travelling to Sydney for the purposes of the business, although it seems to be largely able to manage without her in a practical sense. The mother tells me very little in her affidavit about any of these businesses that she has. I find more detail in the father’s affidavit than I do in hers.
The relationship
I indicated earlier that the parties were in a relationship between late 2016 and August 2018. During the course of the parties’ relationship, they argued with such frequency the father ended up buying his own home in Town B to stay when he was evicted by the mother. It tells you really all you need to know about the dynamics in terms of the parents’ capacity to communicate. Put shortly, the father drank too much, as I have indicated, as well as using illicit substances, and the mother disapproved of all of that, and rightly so. That said, the mother was content for the father to be significantly involved in Y’s life, and he very much acted as a father figure to her. He picked her up from school. He took her to school. She began to call him “Daddy Mr Bilson”.
The father witnessed, and I accept, that Mr Murray tried to contact the mother many times to see Y. Mr Murray was markedly unsuccessful. The mother did not want Mr Murray to have anything to do with Y. To be fair to the mother, she had been the victim of family violence at Mr Murray’s hands, and he had chosen to move away to Melbourne. When Mr Murray sent Y a Christmas present, I accept the father's evidence that the mother gave it to Y but would not tell her that it was from Mr Murray.
Like the father, the mother had a capacity to be volatile, and I have already indicated that in her case the volatility would extend to some physical pushing and shoving and the like against the father, none of which was of a coercive nature. He certainly was not fearful of her, but it was nonetheless family violence. Perhaps more alarmingly than this though, the mother would make disparaging remarks to the father when she became angry, and she would do so to Y, telling her when she and the father argued that:
He’s not your dad. He’s a cunt. He doesn’t belong here.
Following one such argument, Y stopped calling the father “Daddy [Mr Bilson]”.
After X was born in 2018, both parents were actively involved in his care. The child was bottle fed after a very short period, and so the father was an active and capable parent for X.
Unfortunately, the nature of the relationship between the parents was such that co-parenting was a challenge for them. The father was regularly out of the home and staying in his home, and around the time of separation, Police were called out to their home for six separate family violence-related arguments or events. It was clearly a toxic situation.
Post-separation
Following separation, the father moved out into the home at Town B as I have indicated. I have already referred to the mother’s allegation in relation to sexual abuse of Y, which occurred in late 2018, and to the father contacting Police.
In late 2018, literally some six days or so after the mother had made the allegation in relation to sexual abuse of Y, the mother sent the father multiple texts effectively taunting him. She referred to another man perhaps having a “cock ring” and talked about:
…perhaps having a one-night stand with him just to piss you off.
She also said in a text message that she:
…should take a photo of my fanny or naked photo then send it to him to see what he thinks next.
The mother knew how to push the father’s buttons, and this was the sort of behaviour that she was willing to engage in when she was angry or volatile.
Having said that, on the very same night the mother sent an entirely different set of messages telling the father that she was willing to share X with him fifty-fifty once she stops breastfeeding. She said in the message:
From now, if you want to spend time with your son, I can meet you up at the park for a couple of hours. You don't need to come to my house. I’ll meet up somewhere. If you can’t make any agreement with me, then bring me to court if you want. Full stop from now. If you don’t wake up to yourself, then I’ll block you. Stop hassling me with all your bullshit messages.
This was the mother's response to the father's regular messages to her wanting to see X.
In late 2018, the father attended at the mother’s home, where she was in the shower. They got into an argument about X’s Birth Certificate, which, I should add, had never been registered due to the father filling out the form incorrectly. There was also a debate about what X’s name should be. The father wanted to include X’s middle name, being the paternal grandfather's first name. The mother was unhappy about that. In any event, on this occasion the father ended up taking X down to a local park while the mother was effectively in the shower and unable to stop him. She rang the Police. They attended at the scene, where they found the father agitated, loud and assertive.
To be fair to him, the father’s position was that there was no good reason why he should not be able to spend some unsupervised time with X, and walking him around in a park did not seem to be too much to ask - but clearly he did not have the mother's consent. Clearly, it was a tense situation, and things were building up between the parents, probably in part because of the sexual abuse allegations that had been made in the week or two previously, coupled with the text messaging they were exchanging, including abusive texts from the mother, as I have indicated.
The end result of the situation is that Police were clearly concerned about the father being agitated and about the somewhat unregulated nature of the situation that had emerged for X, and they decided to take out an Apprehended Violence Order (“AVO”) against the father for the mother's protection in late 2018.
Notably, it was not suggested by Police that the father had ever been physically violent to the mother, rather that he was essentially harassing her.
Late that month, the father started spending some supervised time with X at K Contact Centre for two hours per week. By that stage, the father was taking whatever time he thought he could get with X. He was obviously still quite upset about the mother having raised the issue of possible sexual abuse of Y.
It is recorded that the father spoke with the Department of Communities and Justice (“DCJ”) in late 2018 in relation to the mother. By that stage, the sexual allegations seemed to have been formally brought to the attention of DCJ and the Police.
Speaking in a very derogatory way, he was quite heightened and anxious and jumping from topic to topic. He was worried about the allegations that had been made by the mother and about the possible impact they might have on his career. The DCJ worker assured the father that the allegations would be ‘unsubstantiated’ and no adverse findings made; Y had apparently already been spoken to by Police and she had made no disclosures.
Notably, when the DCJ worker was talking to the father, they could smell alcohol on his breath, and he was evasive and not wanting to answer questions about how much he had had to drink that day. Ultimately, as I have indicated, the sexual allegations were unsubstantiated.
In early 2019, the father consented to a two year AVO protecting the mother. Around this stage, it seems that the father’s time with X was reduced to alternate weeks because the mother was unwilling to pay one half of the supervision fees.
These proceedings
The father commenced these proceedings, and the first return date was 4 March 2019.
For reasons beyond the mother’s control, X was in hospital on that day. He had apparently had an issue where he stopped breathing the night before. The father heard about what had happened to X only when he was before the Court. I am not in any way critical of the mother or her solicitor about this - but I am mindful of the fact that it would have caused the father pretty significant distress to hear in open Court on the first return date that his child was in hospital, having stopped breathing.
It was just another example of an unfortunate event that made things more difficult for these parties. It is regrettable that the father heard about it in this way. It would have been ideal if the mother had let him know earlier.
But in any event, on the first return date, the Court made some interim orders for X to spend time with the father supervised by K Contact Centre for at least two hours per fortnight and preferably two hours per week. The father was to undertake carbohydrate-deficient transferrin testing, or CDT testing, within seven days, as well as undertaking hair strand testing. The mother was ordered to undertake the Parenting After Separation course, and an ICL was appointed.
The father was clearly struggling at that stage because he was having to ‘confront his demons’ in terms of both alcohol abuse as well as illicit substances abuse and any related mental health issues. On 7 March 2019, he went to see his GP seeking a referral to a counsellor or a psychologist. As the DCJ worker had observed some four months earlier, the father, when speaking to the GP, had given a very mixed up and jumbled up history. Interestingly, the GP thought that he had done so almost in a manner as to confuse the agenda of the session. The GP suspected that the father was “doctor shopping” to get some prescribed medication. Notably, the father was talking about his family law situation, and he told the GP that he was drinking too much, but mindful that records were being kept of the attendance, he then changed his history and told the GP to record that he was not drinking too much. This statement to the GP does the father no credit whatsoever, and it highlights that he had a long way to go in terms of confronting his alcohol abuse and was also mindful not to create adverse business records that could be used against him in the proceedings.

In early 2019 the father was charged with breaching the AVO, apparently for texting Y and telling her, “I love you.” It is unclear exactly what happened save that the father pleaded not guilty and was acquitted.
The mother attempted to add Y to the AVO as a protected person and to have the AVO extended, but these applications were refused.
On 14 March 2019, the father was given a mental health plan by his GP. It was noted that he was experiencing stress and anxiety; that he was using illicit substances or had been using illicit substances to cope with the stress; all of which was against the background of chronic depression. It was recommended that he undertake some cognitive behavioural therapy, but it does not seem that he ever did so. He did, however, apparently take up some psycho-education and learned some relaxation strategies.
The father was clearly struggling at this time with the limited opportunities he was having to spend with X. He had also effectively been cut out of Y’s life in circumstances where he felt aggrieved and where he was very much seeking to continue to maintain a relationship with her and the mother was very much opposing it.
In early 2019, the father made a complaint about X coming to him with a burn. His complaint was made to both Police and DCJ. The father was critical of the mother that she was not taking good enough care of X, which the mother denied. Nothing turns on this in the sense that there was nothing sinister at all. It was an example of the lack of trust between the parties.
The mother had her solicitor send the father a hospital report in relation to the child. It would be fair to say that, more or less regularly, the father was communicating with the mother’s solicitor in a difficult manner. This was to be a feature of many of the father’s communications with various people throughout the course of these proceedings.
1^st Child Inclusive Conference
The first Child Inclusive Conference occurred on 11 April 2019. At that time, the father again presented as labile with pressured speech. He was in denial in relation to his illicit substance use in the sense that he was minimising its impact on his parenting. For her part, the mother was still pressing that the father posed a risk of sexual harm to Y, notwithstanding that those allegations had been unsubstantiated. She told the family consultant that Y had only declined to talk to the Police about what the father had allegedly done to her because Y was apparently “scared”.
Drug and alcohol testing; mental health challenges
In early 2019, the father was prescribed some medication to assist him on the journey towards sobriety or at least reduced alcohol intake.
The father had returned a late CDT test pursuant to the interim orders, and despite being late, it was still a high reading in terms of alcohol consumption.
In mid-2019, the father provided a hair strand test which was positive for illicit substances as well as being positive for prescribed medication. The father was clearly attempting to cut back on his alcohol and on his illicit substances use; he was clearly struggling with both those issues.
Notwithstanding that the father was struggling with these issues, he adopted a passive-aggressive approach in dealing with the mother’s solicitor. On 28 May 2019 he emailed the mother’s solicitor to state:
Just wanting to check up on [X]’s health and wellbeing and make sure there have not been any more instances when he has “stopped breathing”.
Though the message might look innocuous at first blush, the dynamics in this case are obvious enough, and there was an element of passive aggression in what the father was saying, if not sarcasm. And certainly the mother’s solicitor took it that way, which was entirely reasonable given the dealings he was having with the father.
The father clearly accepted that he was having some problems managing his behaviours. In May/June 2019, he consulted his GP requesting tips to manage his anger, as he apparently was:
…understanding that he must be smarter and not let his frustration undermine his behaviour.
On 9 July 2019, the matter came back before the Court for a directions hearing, and there was an agreed order for the father to undertake urinalysis at the request of the ICL and a further CDT test within 48 hours. The father also consented without admissions to completing the L Course, which he later went on to do within a matter of a few months.
I accept the father’s evidence that in around August 2019 he stopped using illicit substances. CDT tests (for alcohol abuse) carried out by him after that date were all within the normal range, albeit that there were various CDT tests that he commissioned ‘off his own bat’ that were not specifically requested by the ICL.
Changes to the time – it becomes unsupervised
In October 2019, the parties attended some mediation and agreed that the father should see X every Wednesday between 3.30 pm and 6 pm, and on another weekday for the same time, subject to the availability of K Contact Service.
Regrettably, K Contact Service were unable to facilitate a second weekday visit.
On 6 December 2019, there were some interim orders made for the father to spend unsupervised time with X, with changeovers to be facilitated by K. Time was to occur each Wednesday from 3.45 pm to 6.25 pm, each Saturday for at least four hours from 9 am to 1 pm (or such other times as K could arrange); and then in 2020 the Saturday time was to increase from four (4) hours to six (6) hours.
As it happened, K Contact Service could immediately facilitate six hour visits, and these occurred essentially straight away, so the father was now spending unsupervised time with X, and the matter was proceeding towards a more ‘normal track’ in terms of the co-parenting arrangements.
COVID-19
Unfortunately, COVID-19 intervened in March 2020, although in some respects COVID was a double-edged sword in this case.
On 27 March 2020, K Contact Centre was closed and unable to facilitate handovers in accordance with the interim orders. The father offered to affect changeover at a Police Station, which seems to me not ideal but certainly do-able particularly given X’s young age. That said, the mother refused, and so no time was able to take place for about two weeks.
The parents then agreed that changeovers would occur at the home of the mother’s friend, one Ms M. It was agreed the father would wait at the mailbox at her home. The mother was to have an agent deliver X to the father. There was to be no communication between the parents, and the same was to happen at the end of the visit.
The father was also at liberty to videotape the handovers, although one cannot imagine a less healthy idea than videotaping. In any event, perhaps it was to avoid allegations of family violence.
What the mother told the day care centre
In early 2020, the mother told X’s day care that she wanted to have X tested for autism and she was concerned about him having possible hearing loss. The autism issue had not been raised with the father. More concerningly however, the mother said to the day care staff:
[Mr Bilson] tried to get fifty-fifty access of [Y]. He abused [Y]the day [X] was born. [Mr Bilson] had [Y] at home, and he said he urinated on her head.
Y was four (4) at that time. The note says that when the mother came home from hospital after X was born, the father told her what happened and she asked him to move out straight away. The mother said the father was “a paedophile”. The note also records that the mother told them that the father was “obsessed with Y” and that he had only known Y for two years before X was born.
This is quite an extraordinary set of ‘disclosures’ made by the mother to the day care centre. Nowhere in the mother’s affidavit does she give any of this detail - despite having come to Court seeking potentially a “no time order” on the basis of risk posed by the father. Indeed, the mother’s trial affidavit effectively sidesteps the issue of sexual abuse altogether but in a way that fundamentally does her case little credit, given that it was evident in the witness box that she still holds those concerns.
The day care note also goes on to record that the mother was denigrating the father to the day care centre, as she had apparently found out that he was seeing a fellow employee at his work and that they had been together for six months. The mother suggested to the day care staff that the other employee was “married with children” and the mother said she was “embarrassed” by the father’s behaviour. She was apologising to the day care staff for what the father was allegedly doing and thanking them for their support.
This was simply denigration of the father. Although as will be seen, the day care centre found the father a difficult man to get on with, the reality is that the mother had ‘seeded the ground’ as it were, by telling them that he was “a paedophile”. A more disparaging defamatory reference is difficult to imagine, and it goes to give some context to why the father felt defensive in dealings with the day care centre and with various other authorities and health care providers.
More conflict
In this unhappy milieu, in mid-2020 there was a confrontation between the parents during a changeover at Ms M’s home. The father was telling X “I love you” and “See you soon” and words to that effect instead of just perhaps handing the boy over and leaving. He was being perhaps clingy or pushing the envelope, and the mother was right there watching. Perhaps he also knew how to push the mother’s buttons too. Having said to X “See you soon, I will miss you” and the like, the mother then snapped at him, verbally abusing the father, swearing at him and telling him to “Shut the fuck up” - all of which was said right in front of X.
Perhaps unsurprisingly, Ms M decided that she did not want to facilitate changeovers any more.
The father’s time with X significantly increases
I said earlier that COVID was something of a two-edged sword here. I now turn to the “positive” part.
On 28 May 2020 the parties agreed amongst themselves that the father would simply have alternate weekends with X from Friday afternoon until Monday morning. This was a significant extension of the time that the father was having with X, and it was an agreement that was reached without the need for a specific Court order.
The mother felt she was under pressure to agree to it and that she had no choice. She was struggling to have to deal with the father at changeovers, and there is some truth in all of that. At paragraph 396 of the mother’s affidavit, she deposed that she had serious concerns for X, and that due to the unusual progression of the matter and the circumstances surrounding it, such as COVID, she felt that the arrangement was:
…probably more than I would have agreed to if COVID did not occur.
That is to say, the mother agreed to the extension of time, but it is quite clear that she was somewhat reluctant and that such increase would not have happened but for COVID.
1^st Family Report
The interviews for the first Family Report took place on 23 June 2020.
Again, the mother continued to express the concern that the father had sexually harmed Y. She believed that Y was a victim of the father's behaviour. Notably, the mother said she did not fear the father so much as being exhausted by him.
According to the report writer, the father demonstrated minimal insight in terms of his alcohol and drug use and their potential impact on his parenting.
The thing that perhaps stands out most from the first Family Report is that the report writer was concerned about the sheer level of conflict between the parents. The report writer was concerned that the parents were potentially engaged in poorly managed high conflict, which can cause distress to children, influence their behaviour and negatively impact children's mental health.
Father ‘pushes the envelope’
On 4 August 2020, the ICL proposed some interim orders to formalise the June 2020 agreement between the parents. This was logical; having a set of orders in place would work to the child’s advantage. It would also assist the parties in terms of regulating the dispute between them.
However, the father refused to sign an order. He was wanting more time. He was, to use the colloquial, ‘pushing the envelope’ despite the obvious conflict and difficulty between the parents and despite having only recently had his time significantly extended.
Further DCJ investigation
In late 2020, DCJ conducted an investigation in relation to the father apparently being accused of being physically violent to X by shaking him. The father denied any responsibility and said that he had done nothing wrong. It would seem that a neighbour of the father with whom he had had a significant dispute may well have made the complaint and that it was without any foundation.
Nonetheless, from the father’s perspective there was a problem in terms of the DCJ assessment.
It is quite apparent from the exhibits that again he was struggling to regulate his emotion in terms of dealing with the DCJ. They record that he quickly changed thought patterns and conversations to talk about the family law courts, the injustices fathers experience as a result of Julia Gillard’s government, and feminism in the family law courts. I do not really understand the logic of those complaints. Prime Minister Gillard was long out of office by that date, and I am really not sure what the father intended at all, but the point is that he was clearly feeling that he was the victim.
To be fair to the father however, what he said is not entirely inaccurate in the sense that the mother had been violent to him. As the male in the relationship, it may well be that he had a reason to feel that he - rather than the mother - was being labelled the perpetrator of family violence. To that extent, he may have had something of a point.
The upshot of the DCJ investigation in relation to the father was that they assessed that there was a moderate risk to the child in his care. It may well be that this was a result of the earlier sexual abuse allegation made about the father and also the fact that there was clearly a lot of conflict between he and the mother. But what is clear is that the father was very upset about the “moderate risk” assessment, and he spoke to caseworkers about it, and they record that he spoke over the top of them, would not allow them to speak, and that he transitioned between narratives quickly and sometimes confused the caseworkers. They also screened the child in for a “high risk of neglect” although ultimately the case was closed.
Father begins filing COVID applications
The father ended up filing six separate COVID applications.
The fact that he filed six of them, the sixth of which was rejected by the Court, is an indicator of the fact that the father was a difficult person to please and somewhat argumentative and wanting to ‘push the envelope’ in terms of arrangements, as I have indicated.
The outcome of his first COVID application was that on 30 September 2020, interim orders were made formalising the alternate weekend arrangements that had been in force for three months, with changeovers to occur at X’s day care or at N Support Services.
Despite that application being resolved by way of a consent order, within a matter of weeks the father was writing to the mother’s solicitor suggesting that changeovers occur at the O Venue in Town B. The O Venue is an open public area with a shopping centre nearby, but it is clearly not what had been ordered by the Court, and the mother obviously - and I might say understandably - did not want to be having to deal one-on-one with the father in such an environment.
On 2 December 2020, the father filed his second COVID application, seemingly relating to changeovers on Christmas Day. Christmas Day fell on the Friday which was to be the Friday of his weekend. The cost of using the contact centre that day was $800, and I understand why the parties did not want to spend that amount of money. The father suggested a Police Station changeover instead; the mother refused. Again, she probably should have agreed. But in any event, the parties complied with the existing order, and the practical effect is that the father ended up getting the child on Christmas Day. At that stage the father had been paying the mother some child support on a voluntary basis, and it seems that for several weeks he then withheld his child support based on the high cost of the changeover.
In January 2021, the father was at it again, filing his third COVID application. There was some basis for it, to be fair, in that when he had gone to collect X on 8 January, he had discovered that X was away on holidays with the mother, so the father was effectively chasing make-up time. On 14 January 2021, the parties reached agreement for there to be a make-up weekend.
The mother went to Police to try to have the AVO extended, as it was about to expire. The Police did not consider it necessary to extend the AVO, and accordingly it expired in early 2021.
NDIS
X had by then been diagnosed with autism. Up to this point, the mother had been engaged with the NDIS and had undertaken all of the relevant NDIS administrative tasks herself. The father was wanting to have an input into X’s assessments and therapies, and seemingly he also wanted to be added to the NDIS plan so that he had some input in relation to the services provided.
Given the very poor if not non-existent communication between the parents, it would have been, in my view, disastrous for the child if the mother had agreed to give the father any sort of significant role in terms of dealing with the NDIS. This is not to say that the father is a person without some knowledge and skills in relation to children’s needs. He is an experienced educator, and I have little doubt he deals with autistic children on occasion, but the fact of the matter is that the parents just did not have a relationship which would have supported him being involved in this way without causing more problems.
2^nd Child Inclusive Conference
At the second Child Inclusive Conference on 16 June 2021 the father indicated that he was ‘giving up’ in relation to Y and no longer seeking orders about her. This is not because he did not have affection for the child. I am satisfied that he does. But he simply accepted the practical reality that he was not a biological parent of the child, and the mother wanted him to have nothing to do with Y.
The litigious path continues; another AVO is taken out
On 29 June 2021, there was a further interim hearing at which the father was seeking more time with X, and the mother was seeking to reduce the time. Both parties were unsuccessful, but an order was made for the mother to have sole parental responsibility for X and to provide the father with copies of medical reports within forty-eight hours of receipt.
Barely a week later, the father was texting the mother wanting increased time, again ‘pushing the envelope’.
X was struggling in terms of going between the parents’ homes. On 12 July 2021, the child’s speech therapist wrote a report which included this statement:
[X] often shows regression in both expressive and receptive communication during times of transition from his father’s to his mother’s care. This has been evident since I commenced working with [X].
In August 2021, the mother’s lawyers told the father to stop contacting her directly, because the mother wanted only to have the father deal with her lawyers. The father seems to have ignored that, and he promptly sent two messages to the mother on 8 September and 10 September 2021. The practical effect is that the mother felt like she was being ignored or ‘bulldozed’ as it were, and she went back to the Police. They in turn took out another interim AVO to protect the mother from the father.

At or about the same time, the father filed his fourth COVID application on 23 September 2021, again seeking more time with X. He had only lost that issue at the interim hearing three months earlier. I should also add that at that time, the matter had a looming December 2021 trial date. Perhaps unsurprisingly, the interim application was adjourned to that date.
In November 2021, the mother decided that she wanted to live in Sydney. She came to the view that it was no longer sensible or appropriate for her, X and Y to remain living in Town B in the circumstances they were in. Accordingly, she instructed her solicitor to formally amend her Response to seek a relocation order.
The mother seems to have had a rather nasty ‘falling out’ with the maternal grandmother at or about that time, apparently relating to money. The maternal grandmother had then apparently gone on to move to Sydney.
As it happened, the matter did not come on for final hearing on 13 December 2021.
There were more difficulties again at Christmas Day of that year. Again, it was going to be a very expensive changeover supervised by N Support Service. The father ended up filing his fifth COVID application, seemingly in relation to the changeover issue. He also was able to have the AVO varied so that he could contact the mother by text or by email in relation to X. Her response to that amendment, of course, was to block his number anyway so there was no way that he could get through on her phone.
The mother wanted to be able to see X on Christmas Day, which was entirely reasonable given what had happened the previous year. The father was agreeable as well, but he did not want to spend the extra money for the changeover with N Support Service, so again he suggested that changeover occur at a public place. The mother suggested instead that the father have X from the afternoon of Christmas Day through to the following Tuesday morning, which would be the same amount of time that they would normally have together, but it would mean that the mother had a part of Christmas Day with X. The father was not happy with her proposal. The end result is that the parties were not able to reach an agreement, and the father ended up having X effectively for two Christmas Days in a row.
There were some more difficulties between the parties in January 2022. At a time when the father had X in his care, he became aware that X was a close contact of another child at the day care centre, and so the father decided he should not be returning X to the mother at all.
I should pause here and observe that it is a phenomenon, in this Court at least, that COVID brought out the best and the worst in a great many litigants in this Court. It is certainly a common theme that I have seen that parties who were in high conflict almost invariably found a way to end up back before the Court because of their own interpretation of various Government health directives and the like, usually always in a way which favoured them spending increased time with the child rather than the child being returned to the other parent. This may be one such example. The mother wanted X back; the father did not want to return him. The mother ended up dropping some RAT tests to the father’s mailbox. Her solicitor asked the father to undertake the RAT test as soon as possible. The father did so, and apparently the results were clear. The ICL asked the father to return X to the mother. He refused and ended up keeping X in total for a whole week, not returning him until 28 January 2022.
Police ended up talking to the father during this period, presumably in response to the mother contacting them. Police noted that the father was uncooperative and refusing to listen to them and at times spoke over them. The father was being difficult, not for the first time.
In mid-2022, a twelve month AVO was put in place for the mother’s protection against the father. The order expired without there being any alleged breach.
In November 2022, the father undertook a Parenting After Separation (“PAS”) course.
2^nd Family Report
On 15 November 2022, interviews were conducted for the updated/second Family Report.
This time around, the father presented as much more calm and sanguine. He said that he was a different person and was more accepting of circumstances, but equally he rationalised the way in which he had communicated with the mother and with service providers, and in that sense did not accept responsibility for what he had done. The mother complained that the father had been grooming the child Y and that he was still a bit obsessive about her. The report writer was concerned about the impact on X of the ongoing parental conflict.
Christmas Day 2022
At Christmas 2022, the mother got her “revenge” on the father in relation to the previous Christmas Day problems from the last couple of years. The father was again, simply by circumstance, due to have X for the weekend on which Christmas fell, but again he did not want to use N Support Services for changeover. Instead, he again wanted the changeovers to occur at O Venue, or the Police Station or at the mother’s business, and the mother was refusing all of these.
In the circumstances, the mother kept X, and in that sense, she ended up with him for the whole day. The father had called Police to do a welfare check on X on 24 December 2022, which in my view was unnecessary and inappropriate.
Last COVID application; father’s ‘tit-for-tat’ behaviour
On 28 December 2022, the father filed his last COVID application. I am not quite sure what the application related to. Perhaps it was Christmas just gone, but in any event, sensibly and mercifully, this Court refused to accept the application.
The father was then able, in my view in a “tit-for-tat” way, to retain the child in January. The fact of the matter is that he simply kept the child for six days and effectively engaged in self-help in relation to the Christmas just gone.
Events in the leadup to the final hearing
In March 2023, various events occurred at day care involving the mother disciplining the child, and I will turn to these now.
In March, the mother collected X from day care, and the staff told her that he had been biting other children. A person identified as worker “P” reported that the mother was upset and bit X twice on the arm and once on the finger on his right hand while they were in “Q Area” - being an area within the day care unit. Worker “R” reported that she was in Q Area when X’s mother picked X up and sat down with him in her lap and she asked him about biting:
…then biting his right hand, then had asked me what finger he bit of mine. I then showed her, and she bit his right index finger. She then told us to just smack him.
A person identified as Worker “S” also in Q Area that day, saw the mother talking to X about biting a peer and how naughty he was. She walked away and heard the words “That hurt!” and turned around to see the mother holding X’s arm near her face. A Worker “T” noted that the mother told her that she had bitten X on the arm to teach him a lesson and had said to X to save it and bite his dad on the weekend.
Worker “P” observed that X’s arms and fingers did not have any bite marks, but what had happened had been hard enough to make X cry.
Now, in the face of all of those notes taken by professional workers in a day care centre, who clearly felt compelled to make a note of what they had witnessed, one might have thought the mother would simply admit that she had bitten the child in a form of what might be considered unreasonable or excessive discipline.
But she would not admit that. Instead, she tried to tell me that she had not bitten X at all but had “kissed him”, and that it was “just a fun thing”. I reject this; the mother lied in the witness box about these matters.
In March 2023, another worker at the day care centre by the name of Worker “U” spoke to the mother about X biting children at the centre again. The mother said to X:
I will bite you when we are home, [X].
In the witness box, the mother said she did not remember saying this, but I am satisfied she did.
In early 2023, there was a scuffle between the mother and the maternal grandmother. The maternal grandmother had turned up at the mother's home a few weeks earlier. She had been standing behind the mother’s car and not letting the mother go to work unless the mother gave her some money. The mother ended up calling Police; an AVO was taken out for the mother’s protection and the maternal grandmother was removed from the mother’s house.
In April 2023, the mother was again at the day care centre when a person identified as Worker “U” records that, in response to being told that X had pulled another child’s hair, she saw the mother put X on the ground and pull the back of his hair. The mother was questioned about this in the witness box. She said she did not do it and that she had been very gentle and she was explaining to X what pulling hair meant. I reject her evidence. In re-examination, she gave a subtly different version, suggesting that various therapists for X had recommended that she use visual learning cards and demonstrations in terms of behaviour management, which she now said was what she was doing on this day.
I do not accept that she did anything other than pull the child’s hair, as the day care worker observed.
On 25 May 2023 the mother filed her Further Amended Response in which she was proposing that there be a “no time” order in the event that the father was found to pose an unacceptable risk to X - also taken up in her Case Outline document filed in the days prior to the hearing.
On 5 June 2023, the father filed his own Amended Initiating Application seeking that X live with him and that he have sole parental responsibility for X.
At the hearing, the father abandoned his proposal that X live with him as well as his proposal for sole parental responsibility. He conceded that the mother could have sole parental responsibility, and the mother also abandoned her risk case, as I have indicated.
THE LAW
I am mindful of the relevant provisions of Part VII of the Family Law Act 1975 (Cwlth) (“the Act”) which regulate parenting disputes. I am aware of the objects and principles of Part VII as enumerated in section 60B, and I am aware that in deciding whether or not to make a particular parenting order, that the child’s best interests must be regarded as the paramount consideration: section 60CA.
In arriving at a best interests determination, the Act prescribes mandatory considerations in section 60CC(2) being the two primary considerations, and section 60CC(3), which sets out fourteen (14) so-called “additional” considerations.
I am aware of the provisions relating to parental responsibility as defined in the Act and in relation to the rebuttable statutory presumption that, when making a parenting order for a child, it would be in the child’s best interests for the parents to be allocated equal shared parental responsibility: see section 61DA.
I do not propose to dwell on the statutory pathway that arises in the event that the Court makes an order for equal shared parental responsibility, because I do not intend in this case to make such an order for X, nor for Y for that matter. And so it is otiose for me to address those sections.
This being a “relocation case” case, I am mindful of the Full Court's decision in Zahawi & Rayne [2016] FamCAFC 90. I am mindful that there is no need for a parent who wishes to relocate to demonstrate compelling reasons for the relocation and that each case turns on its own facts. I am mindful that parents have a right of freedom of movement, which should not be disturbed unless it is necessary to disturb that right in the best interests of a child: Adamson & Adamson (2014) FLC 93-622. I am mindful of the fact that the mother does not carry any special onus of proof and that a “relocation case”, so called, is really just a species of parenting case in which one party proposes to move a child to a distance away from where the child has been geographically resident. There is no magic in a relocation case. It is a parenting case like any other, but it throws up its own unique difficulties.
I am mindful of the High Court's decision in U & U (2002) FLC 93-11 that the Court is not bound by the competing proposals of the parties, as well as what was said by Gummow and Callinan JJ in their Honours’ joint judgment in that case:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
In terms of the issues related to the names of the children, noting the dispute about the name of each of the children in this case, the real dispute in this case in terms of X essentially relates to his middle name. There is no real dispute about his surname being Bilson Trang. There really is not much case law in relation to middle names. It would be fair to say that I accept and respect that it is a best interests decision and that questions of identity can be involved for children.
In relation to overseas travel, there are disputes as to whether the mother should be able to travel out of Australia with X. The father, as I indicated, says that she should not be able to travel to a non-Hague Convention country, which means she could never take the child back to Country F unless and until Country F signs the Hague Convention.
I am aware that the Court needs to consider the risk of a parent retaining a child wrongfully in another country, and considering the countervailing benefits to a child in being able to travel to such country. The Court must consider the best interests of the child and keep them paramount at all times.
X
I begin my consideration then by focusing on X, as I indicated earlier.
In terms of the primary considerations for him, beginning with section 60CC(2)(a), the benefit to X having a meaningful relationship with both of his parents, X will have a meaningful relationship with the mother regardless of whatever orders I make. She will remain the primary carer either in Sydney, as she desires, or in Town B, as the father desires. There is no question that her meaningful relationship with the child is not in any risk whatsoever.
Unfortunately, I cannot say the same in the reverse. I consider that the father's relationship with X is at some real risk in the event that the mother relocates in particular. The mother dislikes the father fairly intensely in my assessment, and I am concerned that she may be less willing to promote the father's relationship with X than she would have the Court believe.
In this respect, it is necessary to address the related issues of risk, and in particular the sexual abuse allegations the mother makes in respect of Y.
To be clear, the mother came to this Court, effectively at the outset of the hearing, abandoning a risk case. But when pressed about risks, she maintained that she had concerns about a number of issues, namely the father's alcohol consumption, his possible prescription drug abuse as well as illicit substance use and mental health issues. These are all legitimate concerns. None of them pose an “unacceptable risk” in terms of unsupervised time, and all of them are capable of being managed by way of injunctions and other appropriate orders.
However the issue that arose, which causes the Court the most alarm, is the prospect that the mother sees the father as a sexual abuser of Y. I have already set out what she told the child’s day care in early 2020, namely that he was “a paedophile”. She has expressed similar concerns in the various Family Reports and Child Inclusive Conference Memoranda to which I have already referred - see for example paragraph 71 of the first Family Report.
At trial, the mother was somewhat “coy” about sexual abuse risks. As I have indicated, she does not refer to the sexual abuse risks in her affidavit at all, notwithstanding the graphic account she gave the day care centre as to what she says the father admitted doing to Y. Moreover, when she first talked about risk in the witness box, the mother did not mention sexual abuse risks at all. It was only a little later in the witness box that she came out with her concerns.
I am troubled as to the mother's belief system in relation to alleged sexual abuse of Y. If the mother genuinely believes - and she seems to have some belief there - that the father did sexually abuse Y, then it would be understandable why she would be reluctant to facilitate a relationship between the father and X. When asked in the witness box whether she maintained the belief that the father was a sexual abuser of Y, the mother said “I have a concern”.
The concern may extend also to X.
It seems that on a number of occasions in 2022, X had pink urine in his pants or nappy after visiting the father on weekends. The mother refers to one such incident in mid-2022, when she says that he used the word “ouchie” when talking about it. She gave X water, thinking that perhaps it would improve, but his urine remained pink. There was another occasion where the same sort of thing happened after a visit with the paternal grandmother present. The paternal grandmother actually rang the mother and told her about this event. The mother asked the paternal grandmother to take the child to hospital.
It seems that in both households the child has been observed to have pink urine on occasions, but the concern I have is that the mother insinuates - but without coming out and directly saying it - that the father may be sexually harming X, of which, I want to be clear, there is absolutely no evidence.
The Family Report writer made the following observations at paragraph 64 of the updated Family Report:
The mother also reports that [X] has returned with a very sore penis every Monday since [late] 2022 after returning from spending time with the father, which has led to her taking [X] to the hospital more than three times. She reports [X] to have discharged pink urine on occasions too, which medical examinations to date have not been able to diagnose. The mother reports having videorecorded [X] during one hospital presentation to evidence [X]’s crying and level of pain in case she was ever questioned about this. When asked directly if she’s insinuating that the father may have sexually harmed [X], the mother expressed that she’s not accusing the father but just wonders why [X] presents in this way on returning from spending time with the father.
I reject the mother's suggestion to the report writer that the child returned home with a “very sore penis” every Monday after visits with the father as either being grossly exaggerated or confected in its entirety.
I am satisfied that the mother does consider that the father may be posing a sexual risk to X.
Against the backdrop of the statements made by the mother to the day care centre in April 2022, I am left with the strong sense of disquiet that, as with Y, the mother is harbouring a belief system that the father is or might be a sexual abuser of X. There is no evidence that the father has sexually abused Y in any way whatsoever, nor X for that matter. The mother also knows that allegations of sexual abuse are a matter the father takes extremely seriously, particularly given his occupation as an educator.
The mother feels a degree of malice and negativity towards the father by reason of some of his behaviours towards her, and I consider that sexual abuse allegations in respect of the father concerning X could be a pretext for the mother to cut the father out of X’s life. I am genuinely concerned that the mother may take such actions, particularly from a distance of some three hours’ away in Sydney, where the father would have a limited opportunity if any to have any day-to-day interaction in terms of X’s life.

The mother has certainly done some positive things, however, which need to be taken into consideration. I have already noted that she agreed to the father having time with X on alternate weekends. But to be fair, her affidavit clearly makes obvious that it was something she felt forced to do and it would not have happened but for COVID. It is also true that the mother has facilitated the time arrangements between the father and X and that over time he and X have developed a warm relationship. These things are also relevant considerations as well.
But I am concerned as to the mother's attitude and her capacity and willingness to promote the father’s relationship with X, particularly from a distance.
I am concerned about the mother’s attitude ‘rubbing off’ on Y and also onto X. The mother has taken a very hard view in terms of the father “bumping into” Y in Town B, including complaining about the father telling Y he loves her and he misses her. The mother’s actions in that respect, in my view, demonstrate a desire to exclude the father from Y’s life rather than being necessarily protective of Y as such.
Y spoke to the Family Report writer, and it is quite clear that she did not make any disclosures as to any behaviours by the father. Although Y did say she was worried when she saw the father, notably Y was unable to say why. Asked if she saw the father around Town B, she said “Not much. Not really” but gave examples of seeing him at the supermarket. She said she would feel scared if she saw him without the mother around, as her mother “keeps me safe and stuff”. She said she was uncomfortable around the father but could give no reason why.
I consider that the child Y has picked up on the mother’s concerns about the father rather than Y having any specific concerns of her own. I am concerned that any sexual risk concerns that the mother has will be transferred onto X. The Family Report writer agreed that if the mother was wilfully spreading false allegations of sexual abuse about the father, then this would increase the concerns that the Court should have about her capacity to foster a relationship between X and the father over time. And to be clear, the Family Report writer was concerned about the capacity and willingness of both parents to genuinely facilitate a relationship between X and the other parent. He described both parents as having “questionable” capacity and willingness. He observed that both had withheld the child, both had exposed him to disagreements, and I agree with that.
But of course, as I have indicated, the mother’s relationship with X is not in any dispute and not in any danger. On any view, she remains the primary carer regardless of whatever orders I make. So although the father’s capacity to promote the mother's relationship with X could also be criticised, it is the mother’s capacity which I am much more concerned about.
To finalise matters of risk under section 60CC(2)(b), I have already observed - and will not repeat - that the father has had a longstanding alcohol problem. The mother paints a picture that he was drinking something like twenty-one beers per night, which, with respect, I do not accept as being accurate. However, I equally do not accept the husband’s evidence in this respect either - that he was only drinking twenty-five beers per week. I am satisfied the truth lies somewhere between them.
It is obvious that the father has had difficulties with alcohol. It is obvious that he has struggled to give up illicit substances as well, but I am satisfied that he has done so. He has turned up clear CDT tests, and he has not had any adverse urinalysis tests or other drug tests since early 2019.
I consider that injunctions in relation to alcohol and illicit substances are entirely “appropriate” [1]in the father’s case and these injunctions will adequately address the concerns that arise.
In relation to mental health, it is obvious that the father has had some difficulties throughout his life, probably made worse by his abuse of alcohol and illicit substances, but again I do not consider that the father’s mental health per se is a matter which requires that his time with the child be unduly restricted.
The main issue of concern I have about the father relates to his capacity to parent and attitude to parenting. Though perhaps not ideally addressed under section 60CC(2)(b) so much as section 60CC(3)(f) and section 60CC(3)(i), I will deal with those issues in the context of section 60CC(2)(b) for convenience.
My main concern about the father is his combative attitude towards the mother and towards others in his orbit in relation to X. And I begin by making the observation from paragraph 92 of the second Family Report that:
There are many examples of the father’s problematic style of communication in independent material from various sources, including threatening, intimidating, disrespectful, insistent and self-righteous behaviour and ways of communicating that raised concerns for others.
These matters essentially arise due to the father becoming heightened and seemingly unable to regulate his emotions and frustrations properly, a concern expressed in paragraph 138 of the Family Report. The father himself agrees that he has been aggressive in his tone towards the mother, as well as being rude and abrupt with her solicitor at times, as well as accepting that he has behaved inappropriately in respect of some of the allied health practitioners.
It is clear that the father has managed to have some sort of a “falling out” with just about every person who is dealing with X in any sort of professional capacity.
At day care in early 2020, he got into a heated discussion with the Centre Director. The backdrop was that the Centre Director was simply applying the relevant policy, which was that the mother had enrolled the child and that they needed her consent to give him information about X.
Speaking over the top of the Centre Director, the father pointed out that he was an educator and that he knew the rules about being given information as a family member and as a parent of X. I can understand the father's frustration about this, but he did not handle the situation appropriately. He said to her:
You [people] make up your own rules. You don't know what you're talking about. I want to speak to someone who knows what they're talking about.
It was disrespectful and rude.
In late 2020, the day care centre notes record that their staff had been instructed not to meet with the father by themselves and that the Centre Director had made this decision in order to protect them. It was recorded that the father was not abusive; however, he was rude and spoke over the top of the Centre Director and was persistent with his own views and no one else’s. They had no such concerns about the mother.
In mid-2020 the father seems to have been ‘pushing the envelope’ in terms of X’s GP. He was chasing copies of X’s medical reports and referring to his own parental rights, again in a way which put the doctor on the back foot and was less than collaborative.
In late 2020, the father emailed X’s Paediatrician wanting details of all attendances the child had had there. His email made several unfortunate references of a disparaging nature. He told the Paediatrician that the Paediatrician did not know the concept of ‘parental responsibility’ under the Family Law Act. When the Paediatrician responded by asking for copies of Court orders and said that he did not appreciate being threatened with legal action, the father replied by saying that the order did not specifically provide for parental responsibility but that there was presumed parental responsibility under the legislation, telling the paediatrician:
You obviously don't know the law.
He suggested the Paediatrician contact a lawyer.
This is not how parents of children with high needs should deal with treating practitioners. Treating practitioners have a hard enough time managing a child’s medical or mental health condition without finding themselves caught up in an ugly parenting dispute which completely triangulates them and puts them in an impossible position. It is not good for X that that occur. The Paediatrician even rang the mother after this to query the orders, telling the mother that the father had been very aggressive and that the Paediatrician was worried about the father’s behaviour.
The father admitted in the witness box that he had been rude on this occasion, an appropriate admission on his part.
The father had contacted NDIS in relation to wanting to access X’s funding. He was abusive to the staff there as well.
The father was abusive to X’s speech therapist in early 2021 when she would not come to his home in order to provide some therapy to X while X was in his care. The father became very angry, and he talked over the top of her, referring to the family law dispute. The father thought that the mother had effectively ‘scuttled’ an arrangement for the speech therapist to come to his home when he had X. Whether or not that is true does not really matter for present purposes. What does matter is that the speech therapist decided, in the interests of safety, not to proceed with home visits at the father’s home due to safety concerns and his aggression. The father behaved poorly on this occasion.
The father has been difficult in his dealings with the DCJ, as I have indicated.
The father has been difficult in his dealings with the occupational therapist, offering sarcastic observations to them such as:
Have you had another meeting with the mother that I have to subpoena info for, or can we just be up-front?
The father has made it difficult for allied health providers and doctors to be able to treat the child without finding themselves in ‘the crosshairs’ of this dispute. While I understand the father’s frustration in terms of not always having all of the relevant information in relation to X and indeed not really having any input into the NDIS funding and plans, the fact of the matter is that he has reacted aggressively and effectively chosen a ‘shoot the messenger’ approach, which is most unhelpful for his son.
On 8 March 2022, the occupational therapist service emailed the father advising that they were doing the best they can to manage the needs of all parties:
However, under no circumstances will threats of defamation, insults or other negative behaviour be tolerated towards our staff. We understand the emotional side of parenting. However, as an independent company, we withhold the right to decline service to individuals who don’t treat our staff with respect.
The father responded angrily to that, but admitted in the witness box that he had at least apologised to the occupational therapist.
However, as I say, and I reiterate, the mother's allegation of sex abuse against the father in the very early days of the separation set an unfortunate tone in this respect, and I do note that the father had the sense, and indeed not unreasonably, that he may have been viewed as a dangerous person by some of these people by reason of such allegations.
These are all matters that cause me serious concern. The father says that he is more sanguine and more relaxed about things, but I have my concerns, and I consider that whatever orders this Court makes, there need to be very strict and clear lines and boundaries in terms of who makes the decisions. And in short compass, the father needs to be kept on a ‘very short lead’ in this respect; he needs to be given information, but he needs to have absolutely no decision-making role whatsoever in terms of these issues lest the situation degenerate into a disaster for this young boy. It is just the way this case is, unfortunately. If the parents communicated better and if there was more trust between them and not such high emotions, ideally the father would be more involved, as I am sure there are things where he could value-add, but this just is not a case where that can work to the child’s advantage.
In short, to summarise under section 60CC(2), I have real concerns about the father being able to maintain a meaningful relationship with X if the mother relocates to Sydney. I do not consider that any section 60CC(2)(b) factor arises which is unmanageable. That is to say, any issue of risk arising can be dealt with by way of injunctions and other related orders.
Turning then to section 60CC(3), X is too young to express any wish.
X has developed a warm relationship with the father. He obviously has a loving and close relationship with the mother and with his sister Y. The father has extended family at Town H, as I have indicated. X has seven cousins who live in that general area. The paternal grandparents live there. The cousins are aged between six and fifteen. X is the youngest of the cousins.
The father almost invariably spends his weekends, on a Saturday night at least, up at Town H, staying in a home on the paternal grandparents’ property. These are very positive and happy interactions for X. They give him an opportunity to spend quality time with extended family members, which is good for him.
In terms of section 60CC(3)(c), the mother has effectively made the decisions for X, and certainly pursuant to interim orders that give her sole parental responsibility, it is appropriate that she do so. The father wants to play a role in X’s life. He has an unfortunate habit of ‘pushing the envelope’ and never being satisfied with any arrangement for too long before wanting to increase his time. However, the father has done what he can to participate as much as possible in X’s life, and I am certainly satisfied, having seen the father through the course of these whole proceedings, that he is a most devoted father to this boy.
In terms of communication, however, the parents have very, very poor capacity to work together. Arguably, their capacity is close to non-existent.
In terms of section 60CC(3)(ca), the father is now paying child support as assessed. The mother has made application to the Child Support Agency. The father had previously paid child support to the mother on a voluntary basis. There is some uncertainty about the mother’s true financial position. That said, the father has been content to withhold or remove child support when he felt ‘hard done by’ in terms of the costs of changeover at Christmas. In any event, I do not see this as a major issue going forward. The father is an educator, and I am satisfied that he will pay what he is assessed to pay.
In terms of the likely effect of changes in circumstance in section 60CC(3)(d), I propose to address that at the end, as in a practical sense it is ‘where the rubber meets the road’ in this case.
Practical difficulties do not arise in terms of facilitating each parent’s relationship with X in the event that the mother remains living in the Town B area. Real and significant issues arise in the event that the mother relocates to Sydney, not least of which is the fact that it is at least three hours’ away by road. The mother’s proposal would involve the father’s time with X on weekends being reduced, and it is clear enough from the evidence of the Family Report writer that the child would not be able to cope with large amounts of travel as between Sydney and Town B. This is unsurprising, given the child’s relatively young age as well as the fact that he is assessed as being on the Autism spectrum. These things make it much more difficult for the child in a circumstance which is already rather difficult for him, given the problems in terms of the parental relationship.
There are no practical issues if the parties live in the same location. There are significant practical issues if the mother relocates to Sydney.
I accept the father’s evidence in relation to relocating to Sydney, namely that he considers it would take him years to be able to get a transfer there if it was possible. The father relocating to Sydney is not something which is feasible for the sake of this child any time in the foreseeable future.
I have addressed issues of capacity and attitude of each of the parents at some length, and I do not want to labour the point. I have already indicated my concerns in particular about the mother’s capacity and willingness to foster the father’s relationship. I should add to that observation that at paragraph 106 of the second Family Report that, when asked by the report writer to nominate important people for X, the father was able to mention both parents as being important, but the mother actually had to be prompted to mention the father. That is to say, he did not immediately come to the mother’s mind.
I am concerned about the father’s capacity to be satisfied with arrangements and to constantly want to ‘push the envelope’, as well as his sometimes aggression and harassing nature of communication. These are matters of which the father must be mindful. They are matters which the Court can address by way of injunctions and other strict orders that set out appropriate boundaries for these parties, but I have some concerns about the father’s capacity to regulate himself. As recently as 2013, he sent a “rant” email to the child’s day care in relation to what he asserted was discrimination. His email was entirely out of line. It was sent in response to them advertising a display of an Autistic child's artwork, with people effectively being invited to look at it. The father's response and his “rant” in that respect was entirely inappropriate.
The father has at least done a Parenting After Separation course as well as the L Course. He is able to say some positive things about the mother, but he definitely has his issues. The mother, as I have indicated already, is herself a somewhat volatile person. She is not necessarily particularly easy to deal with either. The important point here is that the parties need to have arrangements that are regulated for both their sakes, and particularly for the sake of X.
In terms of the child, I have already addressed that he has high needs because he is Autistic. The child also has two cultures, probably three cultures to be more precise. On his father’s side, X is Aboriginal. On the mother’s side, X is Country F. The father is a proud V man. He is proud of his Aboriginal culture. He celebrates Aboriginal days of celebration. He wants to impart knowledge to X of a cultural nature as X gets older. These are important matters.
The mother is Country F. At the father's suggestion, she is taking the child to an Aboriginal or Indigenous medical centre. The mother has been negative or critical of the father's Aboriginal culture and background on occasions, but albeit they were statements made in anger.
But the mother’s capacity to promote the child’s Country F culture is somewhat stunted unless she is able to take the child to Country F at some point in the future. Cultural questions are relevant also in the sense that Sydney is a much bigger place than Town B, and there is much more opportunity in Sydney for the child to be able to explore his Country F culture than there is in Town B. That said, the child can always explore Country F culture by way of travelling to Sydney during times that the mother has him as well.
A major point relating to X is his need for routine. He takes time to settle into arrangements. Things need to be done in a stepped and managed way for him. A move to Sydney would be an enormous transition for him. Apart from merely his physical address and location, if he moved to Sydney X would also have to change all of his relevant treaters. He would also have to learn to manage significant travel for the purposes of seeing the father.
The Family Report writer considered that in an ideal world, final parenting arrangements would be put in place for X before X starts school, and I agree.
I have already addressed issues of family violence, and I note that the existing family violence order protecting the mother from the father has expired. I do not see this as a case in which family violence looms particularly large.

In terms of the risk of future litigation, the Family Report writer was concerned that there was such a risk, and so am I. This matter has had a long history. It ran all the way to a final hearing, and it has resulted in a reserved judgment, which I am now delivering. The fact of the matter is that it has been a difficult road for these parties and a difficult road for X. Their capacity to find things to argue about is very real, and the fact that the father filed six COVID applications itself is evidence that he can be rather a difficult and demanding person. All of these things are true. There is a risk of litigation whatever the Court does.
The way for the Court to limit the risk of litigation is to put in place clear orders which provide for what is to occur, to limit the opportunity for the parties to have conflict at changeovers, and to put in place appropriate injunctions.
I consider that the risk of litigation attendant upon the mother moving to Sydney is much greater than the risk of future litigation in the event that the child remains in Town B, if only because there are a lot more ‘moving parts’ and things that could go wrong if the mother moves to Sydney. Quite apart from her attitude, which is of real concern to me, there are real practical considerations and many opportunities for things to go wrong and for further conflict to break out.
I turn then to the likely effect of any changes in circumstances in section 60CC(3)(d).
There are obviously some benefits to the mother and to the child in moving to Sydney. I have already touched upon the increased opportunity to participate in Country F culture. Another benefit is that the child would be removed from the day-to-day tension that can sometimes play out where both parties live in the same area.
I reject the mother's evidence that she is fearful of the father. I simply do not accept it to be true. I have seen her in the witness box. I have considered the evidence. I consider she is frustrated and angry at him; she is not fearful of him. The mother makes a legitimate point that Town B is a small town and she says she has limited support there. She does, however, have some friends in the Town B area. Indeed in the witness box she accepted that if she came back to Town B on weekends, she would expect to stay with her friends or in a hotel, so I do consider that the mother has some support in the Town B region. She says she has better supports in Sydney, essentially in the form of friends who live in some suburbs in Sydney, and I accept that from her perspective she believes she would be happier living there and to get away from the father. I accept also that she has business interests, including in Sydney.
I accept that the mother would be disappointed if she was forced to, in a practical sense, remain living in the Town B area, and that at least from her perspective she believes that she would be happier in Sydney, which is a more multicultural place.
There are some obvious disadvantages to Sydney as well. The fact of the matter is that the father would simply ‘drop off’ as an active fortnightly participant in the child’s life. The father could visit the child in Sydney, but he would have to find somewhere to stay, which would be expensive and difficult. That is not to say the father would not make an effort to see his son there, but I do not consider that there would be anything like the day-to-day opportunities or week-to-week opportunities for the father and for the child to be able to spend that time together. Such things as the father attending at the school for an awards night, for example, is a classic example of something that will not be able to happen with any regularity at all if the relocation occurs.
There is uncertainty as to exactly where the mother will live if she moves to Sydney. In her evidence she talked about living with her friend “Ms W” in either Suburb Z, Suburb AA or Suburb CC, but separately she talked about living with friends in Suburb BB, which is quite close by the other suburbs. The short point is that the mother has no clear-cut plan in terms of exactly where she will be living.
The mother does, however, have a home in Town B, which she purchased for $500,000 in 2015 and which has been the child’s home throughout his life. The mother would plan to sell that home if she relocated. There are uncertainties as to exactly where the child will be going to school in Sydney, although the mother suggests that the child could be going to some specific Autism-trained schools.
The mother would have the support of the maternal grandmother in Sydney, but to be fair, it is quite unclear how their relationship is travelling at this point in time.
The child would have to adjust to significant changes in routine and to the significant reduction in the time that he spends with the father.
Relocation cases are always difficult. The Court is effectively weighing up competing proposals that offer advantages and disadvantages to a child. The mother would certainly be happier about moving to Sydney, but ultimately the question is whether it would be in X’s best interests that she be able to do so. The choices for the Court are not particularly palatable in either direction. It would be fair to say that if the mother stayed living in Town B, I do not expect the parties’ communication to improve any time soon. X would be effectively living parallel lives in the two households. He would also have to navigate any inconsistencies in terms of each parent’s routine, and all of this while trying to develop optimally in terms of his emotional, behavioural and developmental milestones. He certainly needs some consistency and some routine.
That said, a relocation is not ideal either, as X is still young, and I am satisfied that he would miss the father and it would be a huge adjustment for him in terms of the complete change in his routine and in his life. Travel would be burdensome, and I have already indicated that I do not consider that the mother is in a position where the Court can put faith in her to promote the father’s relationship from that distance.
There are many opportunities for problems for this boy in both household scenarios, but I consider that the opportunities for problems are much greater in Sydney than they are in Town B. I should say, in this regard, in relation to Y, that the mother told the Family Report writer that Y was keen to move to Sydney and was wanting to live there, having spent quite a bit of time there with the mother in more recent times. This was not borne out by the Family Report interviews with Y. The child told the report writer that she liked Town B and Sydney “the same”.
Having regard to all relevant considerations in this matter, I am of the view that at this time it would not be in the best interests of X, given his circumstances, that he relocate to live with the mother in Sydney at this time. I consider that it would be in his best interests to remain living in the Town B region, as advocated by the ICL.
The question of the father’s time, which is a related question because the issue of relocation cannot be determined discretely, requires me to make these observations. The father has a relationship with X which needs to develop. It needs to be developed in a way that is child-sensitive, having regard to X’s particular circumstances. I do consider that the time that X spends with the father should be graduating broadly in accordance with what the ICL has proposed, somewhat slower than what the father has proposed.
Change for this child is inevitable, but I consider that orders ought be made in X’s best interests that the child spend five nights per fortnight with the father, albeit that I propose to order that it occur in a graduated way. There is, in my view, no value in keeping the father’s time with X limited to three nights per fortnight. There is no warrant for the time to be as limited as this. It would leave the father in a state of chronic resentment and the child in a state of wanting to spend more time with the father, particularly as he grows older.
I consider that an increase to five nights is appropriate - but no more than five nights during school term, because the child needs routine, and the mother is able to provide that primary care and that primary routine. I cannot make an order that the child spend three nights with the father per fortnight in the event he stays in Town B. I do not see how that would be in X’s best interests.
X’s name
In terms of X’s name, the dispute is quite narrow. It really relates simply to the middle name. Perhaps consistently, given the history of this matter, it may not surprise a person reading this judgment to read that the parties could not agree on what the child’s name was, do not agree on whether there ever was an agreement about his name, and that in any event the father seems to have completed the online Birth Certificate form incorrectly. The bottom line is that X currently has no Birth Certificate.
The father says that the child’s name is “X Bilson” - with the middle name being the paternal grandfather’s name. The father is willing to compromise with “X Bilson-Trang”. The father wants to retain the middle name because it is important to him in terms of the paternal family, and it is something of a family tradition, and I understand his perspective in that regard.
The mother intensely dislikes the middle name because she says the paternal grandfather was unkind to her after separation. She does not want the middle included in X’s name. She also refers to a historic offence that the paternal grandfather apparently committed in the past resulting in a period of imprisonment, which seems an awfully long way in the past in the circumstances of this case.
The mother wants the child to be known as “X Bilson-Trang”, in the same way that she wants to rename Y so that she is Y Trang. I understand the mother’s reasons for wanting to have “Trang” included in X’s surname because it properly records the mother’s name as well as her Country F culture, and I can indicate that I have no difficulties in this respect. I can understand why the mother wants the order that she does.
Each party has legitimate reasons for wanting what it is they want in terms of X’s name, but of course only one of them can get what they want. The ICL considers that the name should be “X Bilson-Trang” without a middle name. The mother seems to propose the same, albeit without the hyphenation of “Bilson Trang”; that is, she proposes “X Bilson Trang”.
I cannot make a finding as to whether the parties ever agreed on a middle name being the child's middle name. The mother dislikes the name intensely. The father wants it for reasons that he says are good reasons. I note that the child was apparently referred to by the mother as X Bilson Trang at day care, seemingly at a time when his name was X Bilson. She also referred to him as X Bilson in her court material, although she says that was accidental.
If I include the middle name, the father will be happy with that, and the mother will be resentful. If I remove the middle name, the child will still be left with three names, namely “X Bilson Trang ”, albeit that “Bilson Trang ”, in my view, should be hyphenated.
Middle names, in my view, are of limited value for this boy. When he is older, he can make a decision as to whether he wants to take a middle name or not. His birth has never been registered. In my view, it will be less stressful for this boy and it will be a more peaceful outcome for the parents for me to remove the middle and to simply leave the child's name as “X Bilson-Trang”.
Overseas travel
In terms of overseas travel, I have already indicated that the dispute primarily relates to the mother being able to go to Country F. I understand why the mother wants to go to Country F. I also accept that the father is genuinely fearful the mother might remove X. Against the backdrop of the concerns I have already expressed about the mother’s willingness to promote the father’s relationship with X, those concerns are understandable.
The ICL also has some concerns as well. The ICL contends that the mother should have to pay a bond of $15,000 to an independent law firm in the event that she wishes to travel overseas, and the obvious benefit of that is that it provides a degree of security: see exhibit 30.
The mother ultimately was willing to consent to the ICL’s proposal, so the real issue is whether or not the Court should go a step further and order that the mother not be able to take the child to Country F if it is not a Hague Convention country.
The mother has connections in Country F, particularly her father as well as a grandparent of hers. The maternal grandfather is seemingly quite wealthy and certainly would seem to have some capacity to provide for the mother if she went back to Country F, but the Court also has to bear in mind that the mother has chosen to live in Australia ever since 2008. She could have moved back to Country F after her relationship with Mr Murray broke down, but she chose not to. She has already travelled back to Country F a number of times when Y was younger but has been unable to do so in recent years.
There are obvious significant benefits to X in being able to travel back to Country F, given that, as I indicated earlier, he has an obvious Country F heritage. Perhaps I should have clarified earlier as well and made this observation. I said earlier that he has three (3) cultures - Country F culture, Aboriginal culture, and I would add to that the broader Australian (non-indigenous) culture as well - but the point is the child has a significant benefit in going back to Country F. There is no question about that.
Would the mother fail to bring him back? Certainly, the Court has some concerns that she might. But equally, as I have indicated, the mother has been living in Australia since 2008. She has built up an income and some businesses here. She has access to the NDIS for X in Australia, of which there is no evidence of any similar entitlement in Country F.
The father's order is effectively draconian in the sense that it would prohibit the child being able to explore at all his Country F culture in Country F itself. Obviously, X could pick up Country F culture in Sydney and in other places, but the father’s proposed order would also prevent X from being able to visit extended family members in Country F.
In the end, I consider that the risk is not so great as to require that the mother be prohibited from going to Country F. However, I consider that a bond of an increased figure is appropriate, and I will address that in the form of orders to which I will turn shortly.
Y
In terms of the child Y, I intend to be brief and simply to make these observations.
There is no proper basis for this Court to do anything other than to award the mother sole parental responsibility, given that Mr Murray is not involved in Y’s life. As with X, the only logical order is for the mother to have sole parental responsibility.
In relation to Y, Mr Murray is not seeking to spend any time with her, and so there is no reason for this Court to make any order other than as is proposed, namely that the child spend no time with him, save that I propose to order that this be unless otherwise agreed in writing.
In relation to overseas travel for Y, I do not consider that any particular specific order needs to be made. The mother acquiesces in exhibit 30, which is the ICL’s proposed draft for overseas travel. That order is addressed specifically to X. It seems inappropriate for me to make any specific orders in relation to Y travelling overseas.
In the end, for these reasons, I propose to make very detailed orders, which I will now read out and which are essentially based upon exhibit 28 and exhibit 30, being the minute of orders proposed by the ICL.

I certify that the preceding two hundred and seventy-two (272) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 13 December 2023

[1] See section 68B of the Act

File number(s):	NCC 27 of 2019
Judgment of:	JUDGE BETTS
Date of judgment:	13 December 2023
Catchwords:	FAMILY LAW – parenting – final orders – two children ages 10 and 5 – where the mother is primary carer and seeks to relocate from Town B to Sydney – where the Father is the biological parent of the youngest child only – where the Father opposes the relocation and seeks an increase in time with the youngest child – where the relationship between the parents was volatile and remains high conflict – where the youngest child has autism – where there mother’s attitude toward the father raises serious concerns as to her willingness and capacity to promote the father’s relationship with the child – best interests of child for mother to have sole parental responsibility, child live with mother in Town B area and have an increase in time with father.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Adamson & Adamson (2014) FLC 93-622 U & U (2002) FLC 93-11 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 2 Family Law
Number of paragraphs:	272
Date of last submission/s:	5 July 2023
Date of hearing:	3-5 July 2023
Place:	Newcastle
Counsel for the Applicant:	Mr Taylor
Solicitor for the Applicant:	Grace Family Law
Counsel for the Respondent:	Ms McKensey
Solicitor for the First Respondent:	Collett Lawyers
Counsel for the Independent Children's Lawyer:	Mr Squires
Solicitor for the Independent Children’s Lawyer	Legal Aid NSW

NCC 27 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BILSON Applicant
AND:	MR TRANG First Respondent MR MURRAY Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	13 DECEMBER 2023