Biondi & Koen (No 4) - [2022] FedCFamC1F 965

Federal Circuit and Family Court of Australia
(DIVISION 1)
Biondi & Koen (No 4) [2022] FedCFamC1F 965

File number(s): MLC 2872 of 2017

Judgment of: BENNETT J

Date of judgment: 7 December 2022

Catchwords: FAMILY LAW- PARENTING – relocation to Country D - where mother seeks to return to her country of origin but the father maintains that the child should not be able to leave Australia in the foreseeable future- where mother is solely dependent upon father for financial support in Australia – where decision reserved after defended hearing in 2019 – where COVID-19 pandemic intervened and judgment remained reserved – where several interim applications are determined - where reasons for decision and draft orders handed down with request to parties to refine draft orders with detail – where draft orders not refined – where father makes application to re-open his case – where all parties given leave to re-open to adduce expert evidence in relation to COVID-19 issues and recent events – where further defended hearing held – where final reasons are delivered in four parts to incorporate earlier reasons – where the court is satisfied that it is in the child’s best interests to be able to relocate to Country D notwithstanding a curtailment of her relationship with the father – direct judicial communication through International Hague Network of Judges.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D & 68LA

Cases cited:
A & A: Relocation approach (2000) FLC 93-035; [2000] FamCA 751

B & B: Family Law Reform Act (1997) FLC 92-755; [1997] FamCA 33

U v U [2002] HCA 36; (2002) FLC 93-112

Division: Division 1 First Instance

Number of paragraphs: 429

Date of hearing: 18, 19, 20 & 23 December 2019; 27 March 2020; 10 December 2020; 8 February 2021; 6 April 2021; 22 April 2021; 3 November 2021; 28 January 2022; 26 - 29 April 2022 & 2 - 6 May 2022

Place: Melbourne (via Ms Teams)

Counsel for the Applicant: Mr Whitchurch

Solicitor for the Applicant: Macgregor Solicitors

Counsel for the Respondent: Ms Stoikovska SC

Solicitor for the Respondent: Lander And Rogers

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitor for the Independent Children’s Lawyer: Southern Family Law

Table of Corrections

14 December 2022
In the citation number at the first page of the cover page “[…]” has been added to reflect the mother’s full name. ]

14 December 2022 Addition of court orders made on 7 December 2022 as amended pursuant to the slip rule on 12 December 2022 as underlined and annotated at paragraphs 1 and 26 of the orders.

14 December 2022 Draft orders of February 2021 reasons which formerly appeared between paragraphs 22 and 23 now appear as an annexure “A”.

14 December 2022 Further catchwords were added to the cover page.
ORDERS

MLC 2872 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BIONDI

Applicant

AND:
MR KOEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BENNETT J

DATE OF ORDER:

7 December 2022

THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for the child X born 2016 (“the child” “X”). (Amended 12 December 2022)
2.The child X live with the mother.
3.The mother may relocate the primary residence of the child to Country D and, subject to compliance with paragraphs 4 and 5 of this Order, the child is permitted to travel to Country D with the mother for the purpose of permanently residing there.
4.Prior to the departure of X from Australia, the father and mother do all acts necessary to ensure:-
(a)this Order is formally homologized in the Court ([…]) in Country D;
(b)once homologized, obtain an order of a court of competent jurisdiction in Country D which renders the provisions of this order enforceable in Country D; and
(c)the mother expressly declare that she will comply with this Order and that there is no impediment to the child having the specified time with the father.

5.The mother provide to the father and the independent children’s lawyer not less than 30 days’ notice of the child’s departure from Australia and her flight details.
6.The mother be solely responsible for any related expenses to her and X travelling to Country D for the purpose of relocating.
7.The mother notify the father and the independent children’s lawyer about arriving in Country D promptly upon arrival and notify the father again once X has reached her intended destination within Country D.
8.Commencing 24 hours after X arrives in her intended destination within Country D, the mother facilitate the father to have audio visual communication with X every second day. Such audio visual communication to be:
(a)between 6.30am and 8.30am AEST, for up to 30 minutes and the mother place the call unless the father notifies the mother by text that he will not be available on that day. The mother ensure and facilitate such call by ensuring a reliable internet and telephone line is available; and
(b)at such other times as agreed to between the parties.

9.Existing orders in relation to the father’s time with X continue in full force and effect until X departs Australia pursuant to paragraph 3 of this Order AND IT IS NOTED THAT any and all orders requiring supervision of the father’s time with X were discharged, by consent, on 6 May 2022 with the effect that time spent between the father and the child is not subject to supervision.
10.Notwithstanding any other Order, X spend time with the father from 5:00 p.m. on 24 December 2022 to 5:00 p.m. on 25 December 2022.

In Country D
11.The father provide the mother with notice of his intention to travel to Country D to spend time with X, in writing and not less than 90 days prior to such travel.
12.The mother and father be, and are hereby, responsible for the costs of the father’s return airfares for travel between Australia and Country D, as follows:-
(a)the mother to pay or reimburse the father for the reasonable costs of his return pre-purchased economy airfare for one visit per calendar year; and
(b)any visits in excess of one visit per calendar year to be paid at the sole expense of the father.

13.The mother do all acts and things necessary to make arrangements for, and to offer, the father (and the father may accept) appropriate accommodation at the home of the maternal grandparents during his stay in Country D. If the father does not accept the offer of accommodation, the father be solely responsible, as between himself and the mother, for the cost of his accommodation.
14.Once X resides in Country D, the father spend time with and communicate with X as follows:-
(a)on the father’s first visit to Country D, over a 14 day period:
(i)on day one for four hours;
(ii)on day two for six hours;
(iii)on days four to five, from 8.30am on the day four until 6.30pm on day five;
(iv)on days seven to nine from 8.30am on the seventh day until 4pm on the ninth day; and
(v)on days eleven to 14, from 8.30 am on the eleventh day until 4pm on the fourteenth day.

(b)for the father’s second and subsequent visits, over a 14 day period, as agreed between the mother and the father and, failing agreement, as follows:-
(i)on days one to two, from 8.30 am on the first day until 6.30pm on the second day;
(ii)from 8.30 am on day four until 6.30pm on day six;
(iii)8.30 am on day eight until 6.30pm on day ten; and
(iv)on days 12 to 14, from 8.30 on day twelve until 6.30pm on day fourteen.

(c)at such other times as may be agreed between the parents.

15.The father be and is hereby restrained from causing, permitting or suffering:
(a)the removal of the child from Country D whilst he is spending time with the child in Country D;
(b)the child to use a Country P passport to travel across an international border -
without the prior written consent of the mother.

In Australia
16.The parties do all things necessary to arrange for X to travel to Australia each alternate year commencing 2025 and the mother provide the father with not less than 30 days notice in writing of her intention to travel to Australia.
17.The mother and father be responsible for the reasonable costs of pre purchased economy return airfares for the mother and the child from Country D to Australia as follows:-
(a)the father to pay for the cost of the mother’s pre purchased economy return airfares; and
(b)any visits in excess of one visit per calendar year be paid at the sole expense of the mother.

18.The father make arrangements for, and provide, accommodation for the mother and X in during such visit, such accommodation being:-
(a)a hotel room or self-contained accommodation, which is secure, clean and habitable; and
(b)within 7km of the Melbourne Town Hall, unless otherwise agreed in writing.

19.Whilst X is in Australia, the father spend time with and communicate with her as follows:-
(a)in the terms of Paragraph 13 (b) above; and
(b)as otherwise agreed in writing.

20.The father be responsible for all transport associated with spending time with X so that, upon the commencement and conclusion of time, the father collect X from, and return X to, the accommodation at which she and the mother are staying.
21.The father be and is hereby restrained from causing, permitting or suffering the removal of the child from Australia whilst he is spending time with the child in, or the child is in, Australia.
22.The mother provide the father with a different video or photograph of X no less frequently than once per week and written updates of X’s progress and development no less once per week.
23.The mother ensure that in X’s bedroom there is a series of photos of the father with X, for ready viewing by X.
24.The father provide X with a photo of himself and/or paternal family members no less frequently than once per month and the mother assist X to compile a photo album or collection of such photos (in addition to the photographs on display pursuant to the preceding paragraph of this Order).
25.The mother ensure the child continues to learn and be able to converse in English, so as to facilitate better communication with the father.
26.IT IS REQUESTED that the Australia Federal Police remove the name of the child X born 2016 from the Airport Watch List at all points of international arrivals and departures in Australia on presentation of boarding a flight with her mother, Ms BIONDI to Country D, the details of such flight to be advised to the Australian Federal Police by the independent children’s lawyer upon notification to the independent children’s lawyer of flight details pursuant to paragraph 5 of this Order. (Amended 12 December 2022)
27.The mother have possession of the child’s Australian and Country D passport and keep each passport safe and secure and available for use by the child as and when required.
28.The mother be and is hereby entitled to apply for a renewal of the child’s Australian and Country D passports as and when necessary and, upon issuance of a new passport, the mother provide the father with the passport number and date of expiry.
29.Until further Order the father be, and is hereby, restrained from causing permitting or suffering an application to be made for a Country P passport to issue for or in respect of the child without the prior written consent of the mother.
30.Fourteen days after the independent children’s lawyer has received notification of the child’s arrival in Country D, the orders requesting the appointment of an independent children’s lawyer be, and is hereby, discharged.
31.All exhibits in this proceeding remain on the Court file until further order.
32.There be liberty to each party to apply urgently in relation to the implementation of this Order and homologation and enforcement of this Order in Country D.
33.Paragraph 4(a) of the Order made on 1 April 2022, in relation to the mother’s maintenance and the financial support of X continue in full force and effect until X departs Australia AND IT IS NOTED that proof of such payments may be required for homologation of this Order in Country D.
34.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
35.Otherwise, all extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

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 Biondi & Koen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14 December 2022
PART I - INTRODUCTION

These proceedings concern X who is aged almost 6 years and subject to competing applications for parenting orders as between the mother, father and the independent children’s lawyer.
The mother seeks permission to take X to reside permanently with her in Country D, the mother’s country of origin and for the father to spend time with the child in Country D and eventually in Australia.
The father opposes the mother taking X to Country D to live or even for a holiday. By way of relief he seeks, regardless of where X lives, that he and the mother have equal shared parental responsibility for X. As stated, his primary position is that the mother not be permitted to relocate X’s residence to Country D and that X continue to reside in Australia. The order sought by the father is that the child live with the mother and spend regular time with him for 6/14 nights during term time and on a week about basis during school holidays. Alternatively, “if the court deems that it is not in the child’s best interests to reside primarily with the mother”, he seeks that X live with him and spend regular time with the mother for 5/14 nights during term time and one half of the school holidays. The father’s application for X to reside with him is described as being contingent upon the court substantiating that there is “risk of harm caused by the mother to the child and determines that it is not in the child’s best interests to remain living in the mother’s primary care”.[1] In the event that the mother is permitted to relocate X’s residence to Country D the father also seeks an order that “the mother and/or the child obtain such vaccination against Covid-19 as they may be eligible for in Australia, with the type of vaccination being determined in consultation with the child’s treating GP, prior to any travel to Country D and provide to the Court and the parties, evidence of vaccination/s within 28 hours”.[2]
[1] Father’s Outline of Case sealed 26 April 2022, p 10.
[2] Father’s Outline of Case sealed 26 April 2022, p 22.
The Independent Children’s Lawyer supports the mother’s case for relocation and the father’s case for vaccination.
In circumstances described below, this hearing spanned 20 days between 18 December 2019 and 6 May 2022. These reasons are written in four parts to accommodate the truncated nature of the hearing. The parts are:
PART I –        Introduction;
PART II –      Relocation proceedings from 18 December 2019 to 8 February 2021;
PART III -     Re-opening of the case after the pandemic; and
PART IV -     Conclusion.
This introduction explains the structure of the reasons and briefly summarises the outcome.
The parties competing parenting applications, including the mother’s application to have X reside with her in Country D initially proceeded before me over 4 days in December 2019. I reserved my decision. In March 2020, the COVID-19 pandemic hit Australia and by 31 March 2020 Melbourne went into the first of six government mandated lockdowns and international travel largely ceased. I heard further applications about disputes between the parents on 27 March 2020, 10 December 2020 and 8 February 2021 and made orders increasing the father’s time with X during the COVID-19 lockdowns and to secure X’s attendance at kindergarten.
On 12 February 2021 I delivered my reasons for decision with a set of draft orders in which I acceded to the mother’s application to relocate with X to Country D (“February 2021 reasons”). I stated that I had not considered nor determined any issue of vaccination of X and/or the mother against COVID-19. I observed that the final order would need to be quite detailed and requested that the parties and their practitioners be responsible for refining my first draft of order which was distributed with the reasons for decision. Those reasons and my draft orders are Part II of these reasons.
On 24 February 2021, the matter was listed for mention before me to put some structure around any necessary refinement of the final order. I ordered then that any corrections and amendments suggested by the mother and father be notified to each other and to the Court within 14 days. At this mention, Ms Stoikovska, Senior Counsel, appeared for the father. Mr Whitchurch appeared for the mother and Ms Hams appeared as the Independent Children’s Lawyer. In any event, no party refined my draft order and the order was never pronounced or entered in the records of the court and the matter remained undetermined.
On 22 March 2021 the father filed an Application in a Proceeding seeking leave to adduce further evidence in relation to:-
1.1Country D’s response to the COVID-19 pandemic, as compared to Australia;
1.2The issue of vaccination for adults and children against COVID-19; and
1.3The practical impact of COVID-19 in relation to the issue of relocation.
My reasons for decision of 6 April 2021 dealt with, inter alia, the mother’s application for security of costs associated with the response to the father’s application to adduce further evidence. The father was ordered to make a payment to the mother’s practitioners of $10,000. My reasons for decision on 6 April 2021 were reported as case neutral citation [2021] FamCA 230. I incorporate those reasons into these reasons.
On 22 April 2021 I made orders, inter alia, granting leave to the parties to re-open their respective cases, with the evidence to be confined to:-
(a)the health risks to the child X - born 2016 and the mother of returning to Country D; and
(b)the ease of exercising international access across international borders during pandemic conditions in Country D.
My reasons for decision of 23 April 2021 dealt with the father’s application for leave to re-open his case and to adduce further limited evidence. Leave was granted in the terms provided for at [10] above. My reasons for decision on 23 April 2022 are reported as [2021] FamCA 233. I incorporate those reasons into these reasons.

My reasons for decision of 3 November 2021 dealt, inter alia, with the father’s oral application to expand the evidence he may adduce pursuant to the orders of 23 April 2021. I permitted the parties to adduce further expert evidence in the terms of [12] above. Further, I invited DFFH to intervene in the proceedings and ordered that a report be prepared encompassing both s 69ZW and s 91B issues. My reasons for decision of 3 November were reported in case neutral citation [2021] FedCFamC1F 368. I incorporate those reasons into these reasons.
By orders dated 28 January 2022 I set the matter down for an interim hearing to commence on 26 April 2022 for the purposes of receiving further evidence which the parties had been given leave to adduce pursuant to my order of 22 April 2021, as amended by paragraph 4 of the Order made 3 November 2021 to extend to:
a.the health risks to the child [X] - born […] 2016 (“[X]” “the child”) and the mother of returning to [Country D] with the child to reside permanently;
b.the ease of exercising international access across international borders during pandemic conditions in [Country D]; and
c.relevant developments or events which have occurred since evidence was concluded on 23 December 2019.
My reasons for decision of 28 January 2022 dealt, inter alia, with discrete applications in relation to interim parenting arrangements for X in anticipation of the final hearing. My reasons for decision were published as [2022] FedCFamC1F 64. I incorporate those reasons into these reasons.
I deal with the evidence and submissions of the parties on the re-opening of their respective cases in Part III of these reasons.
The effect of the Order made on 28 January 2022 is that, in considering the mother’s application to relocate and the father’s application to prevent the relocation and contingently for residence. I take into account all relevant evidence adduced by both parents and the independent children’s lawyer from the commencement of the first defended hearing on 18 December 2019 to the conclusion of the second defended hearing on 6 May 2022.
My conclusion in relation to the competing parenting applications appears as Part IV of these reasons. I do not find that the mother has physically harmed X or that it is contrary to X’s best interests to reside with the mother. Accordingly, the contingency attaching to the father’s residence application does not arise. The mother stated that if relocation is not permitted, she will remain with the child in Australia and continue to be the primary parent. I have considered the mother’s proposal to have X reside with her in Country D and spend time with the father in Country D and eventually in Australia. This would enable the mother to live where she wants to live but would limit time that the father could spend with X. I have considered the father’s proposal to have X reside in Australia, in the care of the mother, and to spend more frequent time with him that would be spent in Country D as well as spending time with other paternal family members. It would also entail the child not knowing members of her maternal family.
Neither the mother nor the father bear an onus to establish that a proposed change to X’s residence in Australia or a continuation of the existing situation will most promote her best interests. Having regard to the whole of the evidence relevant to the best interests of X, I have concluded that the mother’s proposal best meets X’s needs and is in X’s best interests and I have allowed the relocation.
part II: Reasons published february 2021
Set out below are the draft orders and my reasons distributed in February 2021. The intention was to allow the practitioners to insert necessary detail to do with timelines and so refine the orders. It was not an opportunity to re-open or reargue any point. As it turned out, none of the parties submitted a refined version of the draft nor indicated how it needed to be refined. I made clear that I had not considered the issue of immunisation for COVID-19 or travel restrictions.
I set out here under the draft orders and my reasons precisely as they were distributed to the parties save that the paragraph numbers are conformed with this format so paragraph 1 of my reasons published in 2021 appears as paragraph [22] of this document. By virtue of the court having changed its judgment template since February 2021 it was difficult to import the earlier document. This took significantly more time than was anticipated and occasioned a delay of one day in the delivery of this decision. For ease of reference footnoting in my February 2021 reasons has been carried over. Unfortunately, when the case was re-opened a second set of exhibits were created commencing with exhibit “1”. For ease of reference, an exhibit from the February 2021 reasons will be referred to as “Exhibit X (February 2021 reasons)”.
DRAFT ORDERS distributed on 12 february 2021 (but never made)
See annexure A below.
INTRODUCTION
The mother seeks to relocate the residence of the parties’ child, X, from Australia to Country D on a permanent basis and thereafter that the father spend time with X in Country D and eventually Australia. The mother also seeks sole parental responsibility for X which means that she would have responsibility, authority and power to take all decisions a parent can take in relation to X without reference to the father.
The father opposes the relocation of X to Country D and seeks that the parents have equal shared parental responsibility. The father concedes that X should live primarily with the mother, but maintains that X should reside in Australia where he and X can continue to spend frequent, significant and substantial time with one another.
On 2 August 2018 I requested that an Independent Children’s Lawyer be appointed by Victoria Legal Aid to represent X’s interests in these proceedings. Ms Kristy Hams of Southern Family Law was appointed. The role of the Independent Children’s Lawyer is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[3] She is not a legal representative retained by the child and she is not bound by any instructions from the child.[4] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the child are fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings,[5] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is possible and in the best interests of the child to do so.[6]
[3] Family Law Act 1975 (Cth) s 68LA(2).
[4] Family Law Act 1975 (Cth) s 68LA(4).
[5] Family Law Act 1975 (Cth) s 68LA(5)(d).
[6] Family Law Act 1975 (Cth) s 68LA(5)(e).
An expert psychologist’s report was commissioned by the parties from Dr B. Her report is dated 5 February 2019 and is attached to her affidavit affirmed 19 February 2019. I will discuss Dr B’s evidence later in these reasons but mention now that Dr B is a well-qualified expert whose evidence in relation to the relocation and X’s best interests was not the subject of cross examination by any party,.
In a case outline filed in anticipation of an earlier scheduled final hearing on 30 September 2019,[7] which did not proceed, the Independent Children’s Lawyer supported the parents having equal shared parental responsibility and X continuing to reside with the mother. However, if the mother was unable to remain living in Australia, for immigration reasons or otherwise, the Independent Children’s Lawyer’s position was that X should remain in Australia with the father “and the Father must financially support the Mother’s ability to travel to Australia to spend time with the child.”
[7] Case Summary Document filed by Independent Children’s Lawyer on 29 September 2019.
When the final hearing commenced in December 2019, counsel for the Independent Children’s Lawyer informed the court that her position had changed and that she recommended that the mother ought to be allowed to relocate X’s residence to Country D. Counsel for the Independent Children’s Lawyer explained that, if the mother was to be kept in Australia and not permitted to return to live in her country of origin, the poor relationship between the parents would persist and accentuate the conflict, negativity and unhappiness between them. The finality of a decision for the mother to stay in Australia would impede the resilient nature she has formed and as family report writer, Dr B, reasoned, the mother’s decline in mental health would likely impact directly on the child. The Independent Children’s Lawyer also submitted that the mother is the primary carer and that the child has never lived solely with the father. Counsel for the Independent Children’s Lawyer referred in particular to paragraph 74 of the Dr B’s report
[X’s] mental health and physical health is inextricably linked to that of her mother’s at this time. It is difficult to speculate on the impact on [Ms Biondi] and her capacity as caregiver if the proposed relocation is denied. [Ms Biondi] has a history of depression, which increases her risk for future episodes. She is very isolated in Australia, with no family and a limited support network. She is currently unemployed, with a perception that she will not find meaningful work in her career here. She reported that her family are unlikely to be able to visit. These matters are untested, but create significant risk for future maladjustment. (emphasis added)
The Independent Children’s Lawyer also relied on an extract from the report by the mother’s psychologist, Ms OO, which reads:
32. She recognises the importance of the paternal relationship with her daughter and has specified in her application, access and contact arrangements for [Mr Koen]. [Ms Biondi] will not consider a separation from her daughter which from a developmental and psychological perspective, has long term implications regarding risk outcomes for [X] that include an attachment disorder and mental health problems. Remaining in Australia with her daughter highlights the risks of isolation, financial dependency, loss of career prospects, mental health problems and further exposure to family violence.
This was a very significant change of direction by the Independent Children’s Lawyer and she had only informed the other parties of her altered position by correspondence the day previously. I stood the matter down to allow the practitioners and parties an opportunity to discuss the matter face to face with the Independent Children’s Lawyer or as they saw fit.
The matter proceeded as a fully attended defended hearing from 18 to 23 December 2019 with extensive affidavit and oral evidence by the parties and experts. I reserved my decision on 23 December 2019 subject to the father being able to file and serve minutes of the orders he would seek be made in the event that the mother is permitted to remove X to Country D together with written submissions in support thereof and for the mother and Independent Children’s Lawyer to respond thereto. Those submissions were to be completed by 24 February 2020.
The parties’ proposals
The parties’ proposals are detailed.
(a)The proposal of the applicant mother in the event that the relocation is allowed appears as Addendum 1 to these reasons. This is the mother’s primary application. This was filed by the mother on 31 January 2020;
(b)The proposal of the applicant mother in the event that, contrary to her application, the relocation is not permitted appears as Addendum 2 to these reasons;
(c)The proposal of the respondent father in the event that the relocation is not permitted appears as Addendum 3 to these reasons. This is the father’s primary application;
(d)The proposal of the respondent father in the event that, contrary to his primary application, the relocation is allowed appears as Addendum 4 to these reasons. This was provided by the father by correspondence dated 17 January 2020 which I marked exhibit “F2”;
(e)The proposal of the Independent Children’s Lawyer in the event that the relocation is allowed appears as Addendum 5 to these reasons and is the determination recommended by the Independent Children’s Lawyer. This otherwise appears as exhibit “ICL2”.
(f)The proposal of the Independent Children’s Lawyer in the event that, contrary to her recommendation, the relocation is not allowed appears as Addendum 6 to these reasons.
From late March 2020, the Covid-19 pandemic struck and curtailed routine life, and litigation, in Melbourne. Since the onset of the pandemic, any hearings or mentions in this matter have been conducted electronically on the Courts’ Microsoft Teams platform. The mother was not legally represented for all of the appearances subsequent to my decision being reserved. This is because the mother has exhausted her entitlement to legal aid. The father has continued to be represented by his solicitors and counsel and Ms Hams has continued to represent X’s interests.
On 27 March 2020, the matter came before me on competing applications about the impact of the pandemic on spend time arrangements for the father. The father complained that the mother was refusing to make X available to spend time with him according to the prevailing orders. My reasons for decision were published on 1 April 2020 and appear as case neutral citation [2020] FamCA 201. I incorporate those reasons into these reasons.
On 10 December 2020, the matter came before me for determination about options for X’s attendance at kindergarten. The mother’s initial position was that, customarily in Country D, X would receive her early education within the home. Orders were made altering time spent arrangements to take into account the possibility of X commencing kindergarten.
On 8 February 2021 the matter was mentioned at the court’s behest to ascertain whether the parties made concessions about matters incidental to the pandemic since the evidence was concluded in December 2019. I recorded, and take into account, the following concessions:
(a)The travel advice of the Australian government to Australians is that Country D, and many more destinations besides, is categorised as “Level 4” which means that the advice is “Do Not Travel”. The advice is referrable to health risks from the COVID-19 pandemic and the significant disruptions to global travel. The Smartraveller website explains that the warning is advice only and the decision to travel is yours.[8]
(b)Country D’s response to the COVID-19 pandemic has not been as good as Australia’s response but the impact of the pandemic in Country D can vary between regions.
(c)The mother proposes to return to Country D to reside with her parents who live in the beachside country town of HH Town, JJ State, significant kilometres from City KK.[9]
(d)Pursuant to Ordinance No. … of 25 January 2021, issued by the Chief Ministers of various government ministries for Country D, the mother and X may enter Country D providing that the mother produces a laboratory test RT-PCR, for herself screening for infection by the coronavirus SARS_CoV-2 (covid- 19), with negative or non-reactive result and which was carried out not earlier than 72 hours prior to embarkation. X does not need to provide proof of a negative or non-reactive test result if she is accompanied by the mother who has complied with all proof of testing requirements.
[8] D?
[9] Exhibit “M15” (in February 2021 reasons) - email from mother to all parties and the court dated Sunday 7 February 2021 12:49 AM.
These reasons explain why I have acceded to the mother’s application to allow her to take X to live in Country D. I have made no determination on whether vaccination of the mother and X against COVID-19 should be a precondition to X leaving Australia for Country D. The Court received no expert evidence in relation to the pandemic or vaccination. The parents and the Independent Children’s Lawyer were not able to reach any consensus as to the need, efficacy and safety of vaccination against COVID-19.
The mother The mother is 39 years of age and was born in Country D, with Country EE language being her first language. The mother required a Country EE language interpreter to assist her in giving evidence. When an interpreter was not available for some subsequent hearings, the mother appeared to give relevant responses to questions, to have a reasonable comprehension of English but it is preferable that the mother have an interpreter. The mother has no family in Australia. She has made some friends from whom she derives companionship some support. The mother is not employed outside the home by reason of her fulltime care of X and her immigration status. She is poised and intelligent.
Dr B recorded her impressions of the mother and the mother’s personal history in the following terms, which were consistent with the evidence adduced in the trial:
10. [Ms Biondi] engaged with a friendly manner. The interview was conducted in English without a [Country EE language] interpreter. Though [Ms Biondi’s] English is proficient, there were times when she found it difficult to communicate an idea or feeling due to difficulties with translation, though not to an extent where her views were not understood. She reported that her legal surname was [Biondi].
Personal history
11. [Ms Biondi] reported that she is the middle child in a sibship of three, with one older sister and a younger brother. She reported that her family was a “traditional [Country LL] family”, with her paternal grandparents emigrating to [Country D] from [Country LL] before her father was born. She recalled her mother never worked. [Ms Biondi] described close relationships with her parents and siblings, describing regular family holidays together even into adulthood. She denied any history of alcohol or other substance misuse or any violence in her family of origin. She described no difficulties with the academic or social aspects of schooling. [Ms Biondi] reported that she left home at age 20 to pursue tertiary study in her chosen field ([…]) after a brief period of occupational uncertainty. She recalled that her father paid the fees for university. [Ms Biondi] described an uninterrupted employment history, with no significant interpersonal issues at work. [Ms Biondi] described most of her friends being at home in [Country D] but having made some very close and supportive friendships in Melbourne.
Relationship history
12. [Ms Biondi] described four significant relationships before [Mr Koen]. Her first boyfriend died […] when she was just 16 years old (after a two year relationship). Her second (teenage) relationship reportedly ended with separation instigated violence (threats, no physical harm) and triggered her decision to move away from her home town for university. [Ms Biondi] reported that her next relationship lasted eight years and was “like a marriage.” Her partner had a two year old daughter when they met. She reported that this relationship ended amicably and they were still friends. [Ms Biondi] reported that her next relationship lasted approximately 12 months. She reported that they lived together temporarily and he started to be controlling. She said he once hit a wardrobe in anger and was highly critical of her. [Ms Biondi] reported that she was never afraid but knew it was not a healthy relationship. She said she became depressed and withdrawn (see below). [Ms Biondi] reported no previous pregnancies or children.

The mother is currently here on a visitor's visa which was renewed late last year until late 2021. The father met the cost of the visa which was approximately $4000, although there is some debate as it has not yet been finalised, the mother conceded that the authorities are merely awaiting a police check and she does not anticipate that there will be any difficulty. It is a subsidiary visa to a parenting visa in respect of which the father has made application at a cost of some $10,000. That visa may takes years to obtain and in the meantime, the mother will be required to renew a visitor's visa. The mother cannot work on a visitor's visa.
The father
The father is from Country P and speaks English and the language of Country MM, and is 40 years of age. He owns and operates a business. He has close ties with his family who are supportive of him personally and professionally.
Dr B recorded her impressions of the father and father's personal history in the following terms which were consistent with the evidence adduced in the trial:
27. [Mr Koen] was visibly nervous at interview, with shaking hands and a wavering voice. He engaged with a polite and forthright manner.
Personal history
28. [Mr Koen] reported that he was born [Mr Koen] to [Country P] parents. He was the fourth child, though the second child (…) died at only seven or eight weeks old before [Mr Koen] was born. He grew up with two older sisters. [Mr Koen] reported that he was injured at birth[…], leaving him […] injuries and […]. [Mr Koen] described an unhappy childhood marred by multiple extended hospital stays for invasive reparative surgeries and a home cloaked with grief and loss due to his injuries, a sister with significant medical issues and the loss of his brother. He reported that he grew up “on the floors of shops,” with his parents working tirelessly at various small businesses. [Mr Koen] reported that he had resented his parents, particularly his father, during adolescence because he was made to work in the family business while his friends were free to roam. He denied any family violence or issues of substance abuse. [Mr Koen] reported that he was now very close to his parents and he had come to appreciate the values they lived and instilled in him, including family, transparency and honesty. [Mr Koen] said his mother had cared for all her grandchildren during their pre-school years and did not want to miss out with [X], though she was “a fragile old woman” now. He reported that his mother always joined him when [X] was in his care and assisted with food preparation and other things to feel she was contributing. [Mr Koen] reported that his sisters were also “incredibly supportive.”
29. Following the interview, [Mr Koen] was provided, by email, two screen shots of correspondence between himself and [Ms Biondi] that [Ms Biondi] had provided to the writer (see Appendix 3) which included a letter reportedly written by [Mr Koen], in which he describes his relationship with his parents in negative terms. [Mr Koen] responded by email (see Appendix 4), advising that his relationship with his father had been “a bit distant” at the time he wrote that letter (approximately mid 2016) due to a financial disagreement and tensions over his unmarried status and life direction. [Mr Koen] reported that the relationship improved once his parents learned of the pregnancy and he emotionally matured on becoming a parent himself. He described significant financial and emotional support from his parents.
30. [Mr Koen] recalled having to work hard to do well at school, spending recess and lunch in the library studying. He recalled being alienated due to his [injuries] and later because he was overweight. Still, he remembered forming some close friendships. [Mr Koen] reported that he completed Year 12 and commenced [tertiary education] but discontinued after the first year, working in the family business and various […] roles, including six years abroad (returned 2010) before starting his own […] business in or around 2013. [Mr Koen’s] work history included no significant periods of underemployment or unemployment.
Relationship history
31.[Mr Koen] recalled two serious previous relationships prior to [Ms Biondi]. He reported no family violence in either relationship and reported that both ended amicably. He reported no previous children or pregnancies.
32.[Mr Koen] reported that he had been ready to “settle down” and had been regularly dating to meet someone when he met [Ms Biondi], two or three months prior to the pregnancy in 2016. […]
The child
X is 4 years old having been born in 2016. She is the only child of either parent. She is a citizen of Australia and Country D and is also entitled to Country LL citizenship by descent.
Dr B described X in her report:
60. [X] […] presents as, a bright, typically developing two year old child. During this assessment [X’s] behaviour suggested a very clear primary attachment to her mother. She was clearly familiar with her father but he was not an accepted substitute when she was highly stressed. In a less stressful environment, [X] was observed to be comfortable in her father’s company and observed to display some positive signs of security in this relationship, with some proximity seeking (though not consistent) and high comfort playing in his presence and engaging him in her play.
X has a sound and positive place within the father’s family. Her face to face experience of the mother’s family of origin is extremely limited. The maternal grandmother stayed with the mother and father until a number of weeks after X’s birth and there was a later visit by a sister of the mother.
Prior to the final hearing in December 2019, X had been spending time with her father in accordance with the Order of 28 August 2018. That was on Wednesday and Thursday from 11am until 3pm and on Saturday from 11am until 4pm.
On the last day of the final hearing, spend time orders were modified so that X’s time with the father increased gradually from between 10:00 a.m. and 4:00 p.m. on Thursday, Friday and Saturday to 10:00 a.m. to 6:00 p.m. by the end of April 2020. Additionally, there is electronic communication for 10 minutes between 6:00 and 6:30 p.m. on Monday.
Arising out of the hearing on 27 March 2020, orders were made on 1 April 2020 which further extended the time X was spending with the father to 10:00 a.m. on Wednesday until 10:00 a.m. on Thursday and from 10:00 a.m. to 6:00p.m. on Monday. Until further order electronic communication was extended to be by Skype for up to 30 minutes on Tuesday and Saturday.
Where the father’s time is from 10:00 a.m. to 6:00 p.m. or greater, the father is to do all acts and things necessary to ensure that the paternal grandmother or the paternal aunt, Ms N, sleep overnight in the same house as X and that, if X becomes upset and cannot be consoled within a reasonable time, the father and the paternal aunt notify the mother by telephone and text of that occurrence and forthwith return X to the mother at her residence.[10]
[10] Order 23 December 2019 [6] and Order 1 April 2020 [3].
RELEVANT LAW – PARENTING ISSUES
These proceedings are brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 61D provides:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
Pursuant to s 60CA of the Act, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration. The proposals of the parties referred to above are all parenting orders within the meaning of s60CA of the Act.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
These objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) provides that an additional object is to give effect to the Convention on the United Nations Convention on the Rights of the Child [11] (“the Convention”) to which Australia became a signatory on 22 August 1990 and which entered into force for Australia on 2 September 1990. Country D became a signatory to the Convention in 1990 and entered into force later that year. The four core principles of the Convention are:
(a)Non-discrimination;
(b)Devotion to the best interest of the child;
(c)The right to life, survival and the child’s full development — physically, spiritually, morally and socially;
(d)Respect for the views of the child; that children have a right to have their say in decisions which affect them and to have their opinions taken into account and have a right to participate fully in family, cultural and social life.
[11] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into
Reference to the Convention as an additional object under the Act when s 60B(4) was inserted under the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, some 21 years after Australia signed the Convention. The principles of the Convention are implemented as core values of our legislation rather than as provisions which create specific justiciable rights and responsibilities for individuals.
The significance of an object of the legislation being to give effect to the Convention, is that it provides a basis to interpret the Act within the context of international human rights principles (including the Convention) to the extent that is compatible with the express intention evinced in the legislation being the Family Law Act 1975 (Cth). However, an object does not give any legally enforceable rights to children[12] and is unlikely to be of great value in the adjudication of individual cases.[13]
[12] B & B: Family Law Reform Act (1997) FLC 92-755, 84,233
[13] Ibid 84,220.
Subject to some associated provisions to which I will come later in these reasons, s 65D of the Act requires the court to be satisfied that any parenting order it makes is “proper”.
Importantly, s 65Y of the Act provides as follows:
65Y Obligations if certain parenting orders have been made: taking or sending a child outside Australia
(1)A person commits an offence if:
(a) a parenting order to which this Subdivision applies is in force in relation to a child; and
(b) the person takes or sends the child from Australia to a place outside Australia; and
(c) the child is not taken or sent from Australia to a place outside Australia:
(i) with the consent in writing (authenticated as prescribed) of each person in whose favour the parenting order was made; or
(ii) in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the parenting order; and
(d) the person:
(i) is or was a party to the proceedings in which the parenting order was made; or
(ii) is acting on behalf of, or at the request of, a person who is or was a party to the proceedings in which the parenting order was made .
Note: The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts) , apply in relation to the offence created by this section.
Penalty: Imprisonment for 3 years.
Exception
(2) Subsection (1) does not apply if:
(a) the person (whether or not the person is or was the party to the proceedings) takes or sends the child from Australia to a place outside Australia because the person believes the conduct is necessary to prevent family violence; and
(b) the conduct is reasonable in the circumstances as the person perceives them.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Whilst Australia is a contracting state to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) with effect from 1 August 2003, Country D is not a contracting state. Accordingly, the 1996 Convention has not entered into force between Australia and Country D. The 1996 Convention identifies which state has preeminent jurisdiction over a child, it provides for the recognition and enforcement of parenting orders (referred to as “measures” or “measures of protection”) as between contracting states and for the attribution, exercise, termination or restriction of parental responsibility between states including non- contracting states. The 1996 Convention finds expression in Part XIIIAA – Division 4 of the Act and the Family Law (Child protection Convention) Regulations 2003 (Cth). Whilst the recognition and enforcement provisions of the 1996 Convention are not available to this family, the rules in relation on to jurisdiction and parental responsibility impact them even though Country D is not a party.
BURDEN OF PROOF
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
FINDINGS OF FACT
In these reasons, a statement of fact is a finding of fact.
EVIDENCE
The parents
This is not a matter in which I am disposed to make findings about the credit of the parents. Each swore very lengthy affidavits of evidence in chief reciting the shortcomings and negative interactions each had with the other over their short relationship and thereafter. Each was cross examined but, with the exception of the father over holding X in late 2019, cross examination was not directed to the alleged unsatisfactory conduct of the other party. In the result, findings of fact about historical conflict are not productive or necessary in this matter. One or other parent may by buoyed by a finding of fact which is favourable to him or her. However, in my enquiry to determine which proposal is in X’s best interests, it is sufficient for my purposes to accept that each parent loves X deeply and believes that the outcome which he or she seeks is the best outcome for X. Otherwise, I am satisfied on the evidence that the parents come from entirely different backgrounds, they share no positive history together, they do not trust one another and nor do they understand one another.
Each impressed me as giving evidence of events as best they recollect them. Their evidence was given honestly, bluntly and without finesse. Evidence of their attitude to one another had a guileless quality and was delivered in an unself-consciousness manner. Neither parent appeared concerned to present himself or herself in a conciliatory light nor with a view to being able to cooperate with one another in the future.
Other witnesses who were required for cross examination
On 12 December 2019, a psychologist Ms OO swore an affidavit on behalf of the mother attaching a report dated 9 December 2019. She was cross examined.
Ms OO was very clear that these proceedings have caused a lot of stress for the mother. She maintained that the reason for her report was not to assist the Court with a report that was favourable to the mother. She maintained that she had conducted a mental health assessment of the mother and made findings about the mother’s mental health. Ms OO denied that the fact of her having seen the mother in her solicitor’s office, was indicative of her being an expert hired to produce favourable reports about the mother. She stated that she often does assessments in the mother’s solicitors’ office for other matters and it was beneficial for the client geographically as Ms OO’s office is in Suburb PP and the solicitors are in Suburb QQ.
It was noted by counsel for the father that an interpreter was not used during the assessment and that Ms OO had only met with the mother for one and a half hours with no prior involvement with her.
I accept her evidence which was that the mother displayed moderate symptoms of depression and anxiety and that the prospect of the mother having to remain in Australia highlights the risks of isolation, financial dependency, loss of career prospects, mental health problems and further exposure to family violence. I also accept the more encouraging description of the mother’s condition, given in cross examination by Mr AK which I have detailed later in these reasons at [161] and [162]. Ms OO agreed that, if the mother is unsuccessful with her application to relocate X, her capacity to parent X will not necessarily suffer.
Other witnesses not required for cross examination
The paternal aunt, Ms N, was a deponent for the father but not required for cross examination. I accept her evidence which was, in general terms, about X’s positive relationship with the paternal family.
Ms E was the mother’s former psychologist who made an affidavit on 17 August 2018. I accept her evidence which is set out in detail below.
Single expert witness psychologist - Dr B
No party sought to cross examine Dr B. What evidence she did give was limited to the interim orders and the father having overnight time. The relevant parts of the Family Consultant’s evidence to this decision have been included later in these reasons under additional considerations.
I accept Dr B’s evidence and accord it significant weight.
Expert witnesses in relation to Country D law
The father contends that, if the mother is able to relocate with X to Country D, he will have no effective legal recourse in Country D to see X or have her travel to Australia from Country D. The Independent Children’s Lawyer seeks that, if the mother is permitted to relocate, that she must have the Orders accepted as enforceable by the court in Country D before X leaves Australia to travel there to relocate. The mother was agreeable to this. All parties also agreed that along with the Orders, part of these reasons could extracted to form short form reasons for the courts in Country D to understand what has occurred in these proceedings.
The emphasis the experts give homologation in the superior courts in Country D is important and I will discuss it later in these reasons as part of my consideration of s 60CC(3)(e) – practical difficulties and expense of the child spending time with a parent.
Expert witnesses in relation to the mother’s migration status

A memorandum was written by Mr RR, solicitor and Migration Agent of SS Lawyers and Ms TT, accredited immigration law specialist and Migration Agent of UU Lawyers. The memorandum discusses the various visa options the mother has to stay in Australia.
The father has been responsible for all expenses related to the mother’s visa applications. For the mother to remain in Australia, under a contributory parenting visa, the applications would cost the father approximately $60,000 being around $44,000 just for the visa and $15,000 for the visitor visa and legal expenses. The memorandum states at paragraph 15 that in applying for a visitor visa, it would be favourable to have the application for a contributory parent visa on foot. The mother was required to apply for the visitor visa before late 2019 when her current visa ran out, otherwise she would be required to leave Australia and apply for the visa offshore. This occurred on the first day of the final hearing.
Neither Mr RR nor Ms TT were cross-examined. On the last day of the hearing, Ms TT gave evidence that, if the mother was to relocate to Country D with X, when she wanted to travel back to Australia to enable X to see the father, the mother would have to obtain a visa by showing that she has a purpose in coming to Australia and money available to her to support herself and X in Australia. Ms TT said that the visa costs around $150 and could be obtained in as little as 24 hours if the application was filled out correctly.
RELEVANT HISTORY
The mother came to Australia in early 2015 on an international student visa which expired in mid-2019. She travelled to Australia to learn English and later completed courses in management.
The parents met in early 2016 when the mother began working in the father’s business. The father says they became close when the mother began cleaning his house to earn additional income.
The parents formed a sexual relationship in early 2016 and the mother became pregnant.
The mother in her affidavit deposes at [4]:
…I told the father before we had sexual intercourse that I was not taking contraception and that we had to use condoms. When we first had sexual intercourse, I asked the father if he was wearing a condom. The father told me he was on the second occasion. On that date, the father told me that he had, in fact, not used a condom.
Whilst the father did not deny this in his affidavit in response, in his oral evidence he stated that the mother knew he was not wearing a condom.
The father says that the mother initially expressed a desire to terminate the pregnancy and that he told her he would support whatever decision she made. The father annexes text messages to his affidavit in reply sworn 24 September 2019 where the mother states “I don’t wanna have child” and being “happy” about abortion being legal in Australia.[14] The father solely met all expenses related to the pregnancy. The father says that the mother drank alcohol regularly during the pregnancy and was concerned about the baby when three or four months into her pregnancy, the mother had her stomach tattoed.
[14] Father’s affidavit sworn 24 September 2019, 24.
The father was cross examined about the doubts he expressed about the mother wanting to have X before and after she was born. The father’s response was that these were events that occurred three years ago and that he was not sure how the mother perceived the comments than she “probably wouldn’t be very happy about it”.[15]
[15] Transcript in Confidence, 20 December 2019, p. 62, 30-39.
They began living together in the father’s home in mid-2016.
The mother left the father’s employ in mid-2016 to work for another company.
The father says that during the mother’s pregnancy she expressed on numerous occasions that she wished to return to Country D to see her family and pets, however refused to have the father pay to have her family flown to Australia. The father was concerned about the mother travelling due to a public health concern at the time and so he says that the mother decided not to travel to Country D.
The father was asked in cross examination if the mother’s willingness not to go to Country D due to the threat of health issues to their unborn child could be evidence of the mother’s positive attitude towards wanting to have X and wanting to protect their child. The father’s response was that he had not thought about these actions of the mother as being evidence of a positive attitude to their pregnancy or their baby.
Ultimately, the father paid for the maternal grandmother to travel to Australia from Country D to support the mother for the birth of X. She arrived late 2016 and stayed with the parents in the father’s home until early 2017.
In late 2016, whilst the mother was several weeks from her due birth date, the father asked the mother to sign a binding financial agreement.[16] In general terms, the effect of a binding financial agreement is to preclude the Court from exercising its powers under Division 2 of Part VIIIAB of the Act to alter the parties’ interests in property or to order that one maintain the other on the breakdown of their relationship in favour of the terms to which the parties have agreed. The father presented the mother with a draft of the agreement and suggested that the mother seek independent legal advice. The mother by this stage had been living with the father for six months, was unemployed and had no income. The father’s evidence was that he was given legal advice that he should have an agreement prepared and so did so. The agreement outlined that the father, at that time, had just over $2 million in assets and $690,000 in liabilities, giving the father a total of $1.36 million net assets. The mother was listed as having nil. The father’s evidence was that he had heard stories of fathers “losing everything” when couples separated. His further evidence was that during the relationship he had doubts about whether the mother “was with [him] for [him] and having [X] and being a family, or whether it was for a visa or for money. [He] wasn’t sure.”[17] The father added that he had considered that the mother may be motivated by his wealth because she had insisted to have her dogs travel to Australia and that she wanted to have plastic surgery on her stomach after the caesarean “to make herself look beautiful”; those being the father’s words[18]. The father gave a further example being, when he and the mother went shopping, the mother purchased $600-700 worth of clothes with the father describing that the mother “just put out her hand for the card”. The father concluded that: “essentially, we were two strangers that came together and fell pregnant. We didn’t know each other all that much and there was a concern there for me, yes.”[19] Under cross examination, he agreed that giving the mother the agreement to sign was the worst possible message that he could have given her to assure her of his love and support.[20]
[16] An unexecuted copy of the agreement was marked Exhibit “M12” (in February 2021 reasons).
[17] Transcript in Confidence, 20 December 2019, p. 50, 30-35.
[18] Transcript in Confidence, 20 December 2019, p. 50, 43.
[19] Transcript in Confidence, 20 December 2019, p. 51, 3-5.
[20] Transcript in Confidence, 20 December 2019, p. 68, 20.
The father gave further evidence that he insisted on the agreement as he had worked for three years renovating the home the parents lived in so that he could have a family. He said that he began renovations in 2013, being three years before X’s birth and considerably before he met the mother. The father’s evidence was that he always wanted to have children and a family.
X was born in 2016. The father says that he assisted the mother with the care of X as well as the care of the mother following her caesarean section. However, he says that, without reason, from when the mother returned home with X from the hospital that the father’s time with X was insisted to be supervised by the mother or the maternal grandmother. He says that he was not allowed to hold X without permission and the mother refused to allow the paternal family and friends to see X.
The father says that the mother requested multiple times that the father agree to have his name removed from X’s birth certificate and they fought constantly due to the mother expressing that she wanted to go back to Country D with X. The father says that he did not want the mother taking X to Country D.
At the trial, however, numerous photos of the father’s family, including his sisters and nieces and nephews holding X at the hospital, at the father’s home and at the paternal grandparents’ home were shown to the father.[21] There were also photos of the two grandmothers together with X. It was contended by the mother that she was not restrictive of the father and his family interacting with X. Further, that the photos are consistent with there being no restrictions on the father having time and taking photos with his child and of his immediate or extended family being able to visit X. The photos do disprove that the mother enforced a blanket prohibition against visitors but that does not mean that the father and his family were not made to feel marginalised by the mother and/or the maternal grandmother. I am unable to make any finding on the conflict of evidence. The mother and father would not be the first new parents whose genuine reflections starkly differ. It is a fraught time when miscommunication is amplified. I am, however, satisfied that grievances conceived during this period of heightened sensitivities foment and endure. It is not surprising that this period figures in the parents’ evidence which is critical of the other. It is demonstrative of the parties lacking any experience of mutual regard or respect or shared positive experiences upon which to look back and appreciate positive contributions made by the other to family life.
[21] Exhibit “M11” (in February 2021 reasons).
The father alleges that the mother would move from room to room with the maternal grandmother whilst she was breastfeeding and close the door so the father could not be a part of the breastfeeding experience. The mother’s evidence was that the father would often yell at her whilst she was breastfeeding and that this caused her distress. She says that she would go into the bedroom where it was quiet and close the door for some privacy during breastfeeding time. She says that there were no locks on the door and that she did not tell the father that he could not come in. The father agrees that there are no locks on the doors in his home but that on a couple of occasions the mother did say that he could not be there whilst she breastfed X. The father denies that he was upset and angry with the mother about her not signing the financial agreement. It seems that the father did feel excluded whilst the mother was breastfeeding which is corroborative of my finding that the parents lack a shared and happy history.
In early 2017, the mother says that the father told the mother to leave his home with the maternal grandmother but to leave X with him. The mother says that she did not tell father that she wanted to leave his home and when the father told her to leave, she asked the father where he expected her to go as she had nowhere else to stay. The mother says that the father’s response was that where she would stay was her problem.
At paragraph 12 and 13 of the mother’s affidavit the mother says:
I found the father’s behaviour after [X’s] birth both confusing and threatening. First, he said words to the effect that I’m a great mother, and that I could go back to visit my family in [Country D] with [X]. Then he told me I could go back to [Country D], but I would have to leave [X] with him. He said words to the effect that “she will not be the first baby, and she will not be the last baby who lives with a bottle”.
He wanted me to sign a binding financial agreement in relation to our separation. He became angry when I refused to do so. He told me words to the effect that I should “sign the document, leave my rings on the table and leave the house with [X]”. He also said words to the effect of “if you don’t sign it I will make your life hell” and “I can lose everything but I will put you down”.
The father’s evidence in response was that he could not recall telling the mother to leave the home. He agreed that he told the mother she could go back to Country D and that she would not be taking X with her. The father’s evidence was that he did not think that the mother would depart Australia without X.
At the trial, the father’s evidence said he could not recall if he had told the mother that it was her problem to find somewhere for herself and the paternal grandmother to live. He agreed that there was a lot of arguing at that time with the mother asking to travel to Country D with X. The fact that the father “could not recall” having said the words alleged, leads me to accept that it was possible that he did so.
The mother applied for an intervention order against the father in early 2017. The mother deposes in her affidavit sworn 17 September 2019 that [8]:
I feel that I was manipulated into staying in Australia due to being in a fragile state whilst pregnant and believing that the father would change his abusive behaviour once the child was born.
The mother’s evidence is that the father’s abusive behaviour continued despite her mother being there to support the mother during and after the birth. The mother says that after the father asked her to leave his home without X and the father’s mood swings, these occurances had caused the mother to feel unsafe. The mother says that the father would yell at her whilst breastfeeding and this caused her to be distressed. The mother also alleges that he was financially abusive in that he did not disclose that he owned a property with his sister or that he received rental income from a property owned by his parents.
In early 2017, the father received a letter from AN Lawyers whom the mother had engaged to act on her behalf in relation to the financial agreement and other matters. The father says that shortly after this he learned of the mother’s application for an intervention order when police called him. The father’s evidence was that he then considered that his relationship with the mother was over. The father’s evidence was that, notwithstanding the mother’s application for an intervention order having been made, the mother had asked the father to meet her and X for a walk in the park as a family a short time later.
The intervention order application was listed in early 2017 and was adjourned to around a month later.
In early 2017, the father returned home in the evening to find that the mother and X had left his home and taken most of their belongings. The father contacted police immediately without contacting the mother. He says he was unable to contact the mother due to the IVO in place. The police contacted the mother and confirmed with the father that the mother and X were okay but did not disclose their location. The mother was staying in a hotel. The mother and X returned to the home to collect the remainder of their belongings a short time later.
The maternal grandmother returned to Country D in early 2017. The original plan had been that the father, mother and X would travel with the grandmother back to Country D. The father had booked and paid for the tickets. However, the father says that with the breakdown of the relationship shortly after X was born, so they did not travel.
The father contested the mother’s application for an intervention order but the matter ultimately settled with the father signing an undertaking without admission in late 2017 which expired in early 2018. There is currently no intervention order in force.
The mother filed her initiating application on 24 March 2017 in the Federal Circuit Court seeking only financial orders, that is maintenance for her support and an alteration of property interests. The mother applied separately to the Child Support Agency for an assessment of child support to be paid to her by the father which was done and continues. On 6 September 2019 I ordered that the mother’s property application be heard separately from this relocation and parenting case. Subsequently, the mother’s financial application was adjourned to a date to befixed as a consequence of Victoria Legal Aid declining assistance for property settlement proceedings.
On 10 April 2017, the then Judge Wilson, now Justice Wilson, made orders by consent, listing the matter for an interim hearing on 18 May 2017 and the parties were given leave to file an amended initiating application and response to initiating application considering the mother’s initiating application only sought financial orders. Otherwise orders were made for the father to pay the mother $200 per week in spousal maintenance, the father spend time with X each Saturday and Wednesday from 12pm until 2pm with a relative present, and the mother deliver and collect X from the father’s residence.
On 18 May 2017, the matter was transferred to the Family Court due to the mother’s introduction of her application to relocate to Country D with X. The mother sought that the father have one hour of time three times a week. She also sought spousal maintenance in the sum of $550 per week until she can relocate or obtain employment in Australia; sole use of the car and for the father to pay for the necessary insurance and registration expenses. The father sought equal shared parent responsibility, that the child live with him and that X “spend substantial and significant time with the Applicant in accordance with the said child’s developmental stages”. In the interim, he sought that X live with him and spend time with the mother from 12pm until 2pm each Saturday, Sunday and Wednesday.
On 24 August 2017, a Senior Registrar discharged the order for the father to pay the mother $200 per week in spousal maintenance and increased the amount to $250, ordered that the parties attend a s 11F Children’s and Parents Issues Assessment and a Conciliation Conference on 7 September 2017.
On 5 October 2017, the 11F report was released by Family Consultant Ms G. Ms G interviewed the parents and observed X on 19 September 2017. Ms G reported that X appeared to be a healthy child who was meeting her developmental goals and presented “as well cared for and loved by each of her parents”.[22] X appeared distressed when separated from her mother by crying. The mother fed X which calmed her down. Ms G otherwise observed that :
15. …[X] appeared happy to see her mother as she reached out her arms. [Ms Biondi] walked [X] on her toes, holding onto her arms, but [X] seemed tired and indicated she wanted to be held. [X] was later seated on a chair, as she pushed plastic fruits into her mouth, and her mother warmly identified each of the fruits for [X]. [Ms Biondi] engaged well with [X] providing her with stimulation that was age appropriate and laughing, with [X] smiling and responsive to her mother’s gestures.
16.Both parents were calm and patient with [X] and each appeared able to provide her with comfort when required. [X] spends time with numerous members of her paternal family when she is with her father. Opportunities for [X] to meet and spend time with her maternal family are limited as they all reside in [Country D].
[22] Children’s and Parents Issues Assessment by Ms G dated 5 October 2017, [12].
In relation to the interactions between the father and X, Ms G reported:
13. [Mr Koen] spoke to [X] in another language, possibly [the language of Country MM] as he scooped her into his arms, although she did not appear to immediately recognise him she settled easily. [Mr Koen] spoke to [X] as she sat on his knee saying to her “what is the matter? And what did you have for lunch?” [X] is only […] months of age, so the questions seemed unnecessary but the enquiry was warm and in a gentle voice. [X] appeared comfortable as she fed plastic toys into her mouth and played briefly with a teddy bear her father presented to her. [Mr Koen] is clearly enamoured with [X] but he seemed to struggle to initiate any age appropriate activity with [X], instead asking her a lot of questions which is a form of engagement, but not necessarily child focused.
14. [X] demonstrated having a positive and strong relationship with her father, receiving appropriate comfort from him and her gaze was not avoidant but engaged and comfortable. [X] was held by her father for a significant period during the observation and at no time did she struggle to be out of his arms but there was every indication of [X] appearing to be settled with him. [X] appeared content and happy as she smiled and burbled in response to her father’s attention and soothing talk.

The following day Ms Y gave further evidence under cross examination. At the conclusion of all of Ms Y’s oral evidence (save for that about her professional costs), she reiterated her opinion as follows:-
So does anything alter your view of the conclusion to which you came yesterday, that, on a child developmental basis, the most psychologically safe outcome may be for her to have one parent in [Country D] rather than two parents in Australia?---It is.
Ms Y was an impressive witness who gave her evidence in a patient and well considered way. She has an ability to digest evidence and formulate opinions in the witness box. There was no defensiveness about her evidence. She is an experienced practitioner of this court as well as an established practitioner now in private practice. I accept her evidence and accord it significant weight.
The father’s conduct and behaviour since 21 December 2019
In the father’s oral evidence he agreed that the mother would likely have been buoyed by seeing members of her family. I asked whether in the preceding 18 months he had offered to pay for the maternal grandmother to come back to Australia. The father said that he had thought about it but didn’t go ahead with the idea because he couldn’t afford it. He estimated the cost of bringing the grandmother out to Australia at $2,000. He estimated that at the time of deciding not to offer to pay for the maternal grandmother to visit the mother he had spent about $250,000 on his legal costs in these parenting proceedings. He admitted that since considering that he could not afford a $2,000 airfare he had paid at least a further $350,000 in legal costs. To that I would add nearly $100,000 for the mother by way of litigation funding.
In the mother’s affidavit sealed on 22 April 2022 updating the court on recent events since early 2022 the mother deposes that time between the father and X has been progressing well and that she and the father have been working well together. The mother however further deposes that she is unable to work given her visa status and is reliant on the father for financial support over and above the benefit she receives from Centrelink. The mother claims she has had to rely on the charity of neighbours and friends in orders to meet her and X’s expenses. The mother goes on to say:
I have found it very hard to be so heavily reliant on the Father for everything and not to have any autonomy or financial freedom has been very demoralising for me. I am eager to be in a position where I do not feel financially reliant and controlled by the Father, but rather supported by the Father. I am a qualified person and I should be able to support myself and [X] quite easily, however due to my current Visa status I am not able to seek employment.
[…]
I am confident that upon returning to [Country D] I will be able to obtain gainful employment as well as finish my Diploma […].
My current visa status is a […] visa which expires on […] 2022.
As to financial support, it was ordered on 23 December 2019 that the father pay weekly payments to the mother of $400 and a further sum of $60 by way of reimbursement for a car service. On 1 April 2020 it was ordered that the mother’s periodic payment by the father for her maintenance and child support be increased to $575 per week. That the father pay the mother’s reasonable expenses for attendance at a general medical practitioner of her choice and meet the mothers out of pocket expenses to attend regularly on her psychologist, Ms E. The father does not appear to accept that the mother is financially distressed. Notably, in the father’s Outline of Case it is asserted that the mother’s income equates to “E$57,720 per annum (net) (equivalent to annual income of E$85,000) (Being, $830 p/w paid by Father by way of maintenance, child support, car and psychologist payments, plus Centrelink benefit of $270 p/w)”. The father describes his own income as “E$70,000 per annum (gross)”, in other words, that the mother’s financial position is superior to his financial position, at least by way of income. That is a distortion.
I am satisfied that the mother finds life in Australia extraordinarily hard and she has risen to the challenge of parenting X in difficult circumstances and acquitted herself admirably. However, I do not accept that the mother can continue to do so indefinitely. I am satisfied that the father has no insight into the difficulties the mother faces notwithstanding he has sat through two defended hearings in which her predicament has been laid bare.
This is a matter in which each party agrees that the other ought to have a meaningful relationship with both parents. In so far as it is a primary consideration to protect X from physical or psychological harm, abuse neglect or family violence, the overwhelming evidence is that the high degree of parental conflict has been and will continue to be the source of potentially significant psychological harm. I accept Ms Y’s evidence that it is X’s best interests to be removed from the immediate environment of parental conflict and, given the recent evidence, relocation is in X’s best interests.
I give consideration to X’s relationship with the mother and the father and with members of the father’s family. I have no doubt that she has a warm and loving relationship with her paternal family and she will miss them if she goes to live in Country D. Whereas, X will eventually able to return to Australia to spend time with the paternal family, her relationship will not be as immediate and close as it has been to date. X’s primary attachment is to the mother. I accept that relocation for the mother will be beneficial and that benefit will flow directly and potently to the child. Additionally, X will not be exposed to her parents’ conflictual behaviour as frequently as she is now.
X has an established relationship with the father. X should be able to maintain that relationship, with the benefit of technology. However, the relationship will not be as meaningful as it would be if she were to remain in Australia. If X were to remain in Australia she would be more available to her paternal family but her mother would become less and less available to her.
I am mindful that the father is resistant to X leaving Australia for any reason in the foreseeable future. It is a harsh position. The father fails to recognise the value to X of a contented mother and her having access to the maternal family. This is a continuation of the disregarding attitude that I observed the father to have at the earlier defended hearing.
The father has a rich family life based cultural background in which X has shared and can continue to share. X will be able to share first hand her Country D heritage if she is permitted to live in Country D. The parents’ backgrounds are important to both of them and I do not perceive that either is adversely disposed to the cultural background of the other party. That said, it will be up to each parent to promote X’s interest in their cultural background.
The parties did not revisit the evidence in relation to the enforceability of orders in Country D. Accordingly, my assessment of the practical difficulties of the father exercising time in Country D remain unchanged.
Whilst the impact of COVID-19 in Country D was a very live issue in March 2021, when leave was granted to adduce further evidence, until early 2021, various factors have lead the father to not press that part of his application. I accept that X will be as safe in Country D as she would be in Australia.
The father seeks that the mother and X be fully vaccinated before X leaves Australia. The independent children’s lawyer supports this aspect of the father’s case. The mother opposes vaccinations for herself and/or X.
The father’s Outline of Case asserts as follows:
55. The Mother opposes the child (and herself) being vaccinated and has stated in correspondence to the Father that she "cannot believe that [he] is considering exposing our only child, our daughter [X], to such a vaccine". The Mother had produced no expert evidence to support any assertion that the child is not able to receive the vaccination, or otherwise has some contraindication to being vaccinated.
56. As has been noted by the Court in recent case law authorities on the issue of COVID-19 vaccinations, pursuant to s 144 of the Evidence Act 1995 (Cth), the Court may take judicial notice of published advice issued by public health authorities, including the ATAGI recommendations on the Pfizer COVID-19 vaccine use in children aged 5 to 11 years dated 10th December 2021.
57. The relevant ATAGI Guidelines are available at: The ATAGI Guidelines relevantly state, "ATAGI recommends vaccination with the paediatric Pfizer COVID-19 vaccine for all children aged 5-11 years."
(footnotes omitted)
I am satisfied that the court has the requisite power to require the parents to do all acts and things necessary to have X vaccinated to the recommended level. However, that is pre-conditioned on the court being satisfied that it is in X’s best interests for X to be vaccinated. I alerted counsel for the father to the lack of evidence in support of his application for vaccination.
The joint memorandum of experts, Dr V and Dr W contains the following:
(b) Your joint view as to the COVID-19 health risks to both the child and the Applicant Mother of returning to [Country D] (and [JJ State] in particular) in comparison to continuing to reside in Australia (and in the State of Victoria in particular), in the event the Applicant Mother and the child:
(i) Do receive a COVID-19 vaccination in [Country D] and/or Australia; and
The two experts agree that the COVID-19 health risks to the child and Applicant Mother of returning to [Country D], and [JJ State] in particular, are roughly equivalent to continuing to reside in Australia, and in the State ofVictoria in particular. While reported COVID-19 infection rates in Australia are currently higher than in [JJ State], hospitalisation rates in both regions are low, hospital resources are readily available in both regions and COVID-19 death rates are predicted to rapidly equilibrate between the two regions in the short to medium term.
(ii) Do not receive any COVID-19 vaccination;
The lack of a COVID-19 vaccination does not present any additional differentiation of risk between [Country D] / [JJ State] and Australia / Victoria, i.e. the experts agree that the COVID-19 health risks to the child and Applicant Mother of returning to [Country D], and [JJ State] in particular, are roughly equivalent to continuing to reside in Australia, and in the State of Victoria in particular, regardless of whether a person is vaccinated or not.
The court’s power must be exercised judicially. It must be based on evidence rather than preference or something that is considered to be sensible. The matters of which the father contends the court should take judicial notice are, at best, matters pertaining to the impact of and precautions against COVID-19 for Australian children. There is no evidence in relation to Country D children, whether COVID-19 is in Country D or the particular area where the mother proposes to reside, JJ State. If there is COVID-19 in Country D, there is no evidence about what strain of COVID-19 that may be and whether immunisations currently available in Australia would effective against any such strain of COVID-19 prevailing in Country D. A lot of resources have been devoted to preparing the father’s case, it is unfortunate that no resources were apparently devoted to preparation of this particular aspect of the father’s case.
I am not satisfied that there is an evidential basis for an order that the child be vaccinated before leaving Australia.
I understand the logic behind the father’s application that the mother be vaccinated for COVID-19 to be that she will be the only caregiver in Country D with whom X is familiar and that it is in X’s best interests that the mother not become incapacitated, even temporarily, or ill. It is a serious step to require a party to undergo a medical procedure to which he or she is opposed. I am satisfied that the mother is opposed to being vaccinated herself (as well as X being vaccinated). Again, I am not satisfied that there is any evidential basis for an order that the mother be vaccinated before she is entitled to leave Australia with X.
All parties seek an order for equal shared parental responsibility. The mother earlier sought qualifications which would, effectively, have her view prevail over the view of the father in the event of a lack of agreement between the mother and the father. However, she does not press the qualifications. I have serious doubts about the parents’ ability to consult with one another and reach agreement as to major long terms decisions. My reservations are supported by the expert social science evidence. I am concerned that equal shared parental responsibility may be setting the mother up to fail and/or generate complaints and proceedings around non-compliance by the mother if she takes a major long term decision without consultation and agreement from the father. Once X is living in Country D the enforcement process will be a matter of Country D law. In the course of closing submissions, Ms Stoikovska sought, by oral application an order for “something along the lines of – in the event that the mother does not comply with the [spend] time arrangements that would be set out in the court orders, that the child is to be returned to Australia, and to live with the father in accordance with the orders.” X’s relocation to Country D will be subject to compliance by the parties with the requirement that these final parenting orders be homologated in Country D. Once X is living in Country D, this court’s jurisdiction will be curtailed by virtue of Section 111CD of the Act, which gives expression to the provisions of the 1996 Convention in relation to jurisdiction, because X will be habitually resident in Country D. There could be scope for jurisdiction under s 111CD(1)(f) if X is in Australia but that will not be the case on Ms Stoikovska’s suggested scenario. It is not a well thought through default provision. For instance, Ms Stoikovska introduced her oral application on the basis of the father requiring relief from having to access the court of competent jurisdiction in Country D, she said “it is complicated for our client to seek to enforce non-compliance without actually endeavouring to institute a whole new case in [Country D]”. However, Ms Stoikovska then appeared to concede that the condition precedent, being the mother’s non-compliance with spend time orders, would fall for determination by the Country D courts. I will not make the default order.
All parties seek equal shared parental responsibility. I accept that such an order would be in X’s best interests because it allows for the father to have input and responsibility for major long term decisions about X. However, shared responsibility would cease to be in X’s best interests if the responsibility is weaponised by either or both of the parties. The parents must exercise shared parental responsibility in a non-conflictual way.
It was agreed on the last day of the hearing, and I have already ordered that, the father’s time with X does not require supervision. I am heartened that in the intervening seven months there have been no proceedings about X. This gives me some little confidence about the parents’ capacity to act cooperatively for X’s benefit. I will give the parents an opportunity to continue exercise equal shared parental responsivity and make the order they seek.
During closing addresses, I raised the issue of the child having a Country P passport. Senior counsel for the father submitted that the father should be able to obtain a Country P passport if he wished to do so. The mother opposes the issue of a Country P passport for X. As best I understand, no Country P passport has been applied, or been issued, for the child. A Country P passport would provide the father with the means of taking X across international borders. The mother would have an Australian and a Country D passport for the child and she would have possession of those passports because this Order restricts the father from taking the child outside Country D during his spend time periods outside Australia. Further, when the child travels to Australia, it is contemplated that she will travel with the mother. I can see no necessity for the child to have a Country P passport. I am satisfied that the mother may well be anxious if she believes that the father has the wherewithal to remove X from Country D during a visit to Country D or whilst X is in Australia. I make no finding to the effect that the father would be so inclined but I am satisfied that it may be a source of anxiety for the mother which could, very conceivably, be disruptive of X’s time with the father. It is important that X’s time with the father proceed smoothly and be trouble free. I will prohibit the father from obtaining a Country P passport for X without the mother’s prior written consent and until further order.
I was not addressed on, and no orders were sought about, what time X will spend with the father on Christmas Day (25 December) this year. As discussed earlier in these reasons, late last year the father, through his solicitors, sought additional overnight time around Christmas Day or additional overnight time during the Christmas period. There was an exchange of offers but the father did not spend Christmas Day with X and nor did X have the benefit of any additional time during the holiday period. The father should have most of Christmas Day this year and I will order accordingly.
It is important that the father exercise time in Country D rather than requiring the mother and X to return to Australia over the next two years. It will be a richer experience for X to be able to introduce the father to elements of her life in Country D and it will be a necessary experience for the father to absorb that.
Part IV: conclusion
There will be an order for equal shared parental responsibility and that X reside with the mother.
The paramount, but not the only, consideration on the issue of relocation is X’s best interests. Both parents have a case which is understandable and reasonable. Both parents are entitled to live where they wish to live. However, the extent to which the mother’s freedom of movement impinges upon X’s interests, the mother’s freedoms (as primary carer of X) must give way and a decision be made which, having regard to all of the evidence, is in X’s best interests.
Frequently, the difficulty in a relocation case is the assessment of the environment and household to which the primary carer wants to take the child but in which the child is yet to live. Another difficult prediction for the court is what will happen in the event relocation is denied. That includes a prediction about the extent to which the parties will be able to successfully parent into the future after hard fought litigation. This litigation has been very hard fought and I have no doubt that each parent feels thoroughly depleted.
In this case, I have the advantage of having seen the parties extensively through two defended hearings and numerous interim hearings over a total of 20 days. I am struck by the fact that findings and observations which I made in the reasons of February 2021 were not better addressed by either party in the second defended hearing. Neither appears to have modified their behaviour to any significant degree. The father presented as a smoother personality, his grooming has changed but his attitudes, in particular his attitude to the mother, remains unchanged. He has continued to be disregarding of her sensibilities and to the importance which she has in X’s life. The recent example of him considering but deciding that he could not afford an expenditure of some $2,000 to bring the maternal grandmother to Australia to visit (which he said had been within his contemplation) and then proceeding to spend hundreds of thousands of dollars more in legal costs in these proceedings is emblematic of his lack of priorities. He also failed to recognise the benefit to X of having the maternal grandmother visit, if she had been inclined to do so.

My impression is that the father has little or no insight into the damage done to the mother by his callous comments and treatment of the mother during and after their relationship. In many respects his case was a negative case aimed at minimising the benefits of the mother’s relationship with X and trying to maximise the extent to which the mother could appear to be difficult.
The father’s position is one that appears to me to be lacking in empathy towards the mother and, through the mother, to X. He has paid a lot of money for legal representation in these proceedings and it is frankly surprising to me that no one successfully counselled the father to at least appear to treat the mother with a higher regard than he has.
By the same token, when COVID struck and the mother was unable to leave Australia, she had a further opportunity to demonstrate how cooperative she could be and to demonstrate to the court, if not the father, her preparedness to comply with orders of the court and to be more generous in allowing the father time with X . However, the mother has maintained the same mindset. It would be difficult to think how she could think that she would be advantaged by retaining the Country D psychologist unilaterally, negotiating but only giving limited ground to the requests of the father for more time with X.
The parents have acted consistently and I am satisfied that they will continue to do so.
My impression is that the mother is a person who is totally isolated in Australia who merely wants to take her daughter back to Country D and parent her. The father’s response is that the mother could do more to make friends in Melbourne and become part of a community in Australia. The fact of the matter is, that it is likely that the father complains about the very aspects of the mother’s disposition and propensity to socialise that drew her into a relationship with the father in the first place.
The father appears to have no comprehension of, or alternatively places no importance on, the strength of the mother’s wish to return to Country D, the place which she has always regarded as her home, or how trapped she feels in Australia.
I cannot attribute to the mother the lack of good faith that the father asserts. There is the distinct possibility that the father’s cynicism about the extent to which the mother will generally seek to comply with orders of this court, once enforceable in Country D, or otherwise, reflects his own values rather than hers.
In looking at the evidence of the second defended hearing, I am comfortably satisfied that all relevant dynamics remain unchanged. I can, and do, adopt here and repeat the first six paragraphs of my Conclusions on Relocation set out in the reasons of February 2021 as conclusions now open to me. My earlier observations apply as much in this second tranche of the hearing as they did in the first. I am satisfied that little has changed or is likely to change between this couple.
I accept the expert evidence that, if X lives primarily with the mother in Country D, X will not be exposed to parental conflict to the extent that she is now. That will come at a cost of losing close physical proximity with the father.
Ms Stoikovska adduced the following evidence in her cross examination of Ms Y:-
SENIOR COUNSEL FOR THE FATHER: Isn’t she then best placed to be with the parent who has the capacity to promote a relationship with both parents, as opposed to one parent who we know is, in fact, overly invested in the child and is excluding the other parent?
[…]
SENIOR COUNSEL FOR THE FATHER: [Ms Y], it was your evidence that you did not believe that the – “I do not think she wants to have a cooperative relationship with him,” is what you opined to us?---Mmm.
And you also told us that it was your opinion that the mother’s personality will follow her to [Country D] and that that is a real risk, and it’s more like - - -?---Yes.
It’s more likely to be her – her personality and her attitude to the father is more likely to be problematic in [Country D]. So that was your evidence, and, for my learned friend’s comfort, that is why I put it to you. So I ask again, in those circumstances - - -?---- - - if a child is meant and entitled to have a meaningful relationship with both of her parents
[…]
the person who is best placed to do that - - -
[…]
is the father and not the mother.
[...]
THE WITNESS: I think what that does – that proposition does is that it ignores the – the – the – the primary relationship that [X] has with her mother and – and the – the – the – the bond that they have, and how difficult it would be for [X] to be separated from her mother, and the psychological impact and consequences that would follow from – from that outcome. What – what I’m saying is I think it’s – it’s being put that there needs – we need to find a way to alleviate – to remove [X] from the – the chronic interparental conflict that she is subject to, and there needs to be a mechanism to do that. We’re not confident that the parents can go on and – and– and co-parent. There’s no evidence to support that. And so we need to pick a parent. And so, at this stage, given she’s five […] years of age and given the strength of her bond with her mother, I would say that that’s a fairly powerful factor in determining where she should primarily reside.
HER HONOUR: Even if it means not having a relationship with the other parent?---Even if it means not having a relationship with the other parent.
SENIOR COUNSEL FOR THE FATHER: Thank you, your Honour.
In this case, I do not accept that relocation to Country D will result in X “not having a relationship” with the father. I accept the evidence of Ms Y that X’s interests are best served by permitting the mother to relocate notwithstanding that relocation will mean a curtailment of X’s relationship with the father. It will not extinguish the relationship but I do accept that the relationship will not develop at the same rate or to the same depth as it could have if X remained in Australia and her parents could parent her cooperatively. However, co-operative parenting is not an option in this case. It is an ideal which is out of reach of the parents and of X.
I accept that the retention of X in Australia would impact enormously on the mother, who will not leave Australia without X, and would not be in X’s best interests.
The relocation of X to Country D in the mother’s care will be sad, if not devastating, for the father and his family who probably believe that they have done everything within their power to try to keep X in Melbourne. I am sympathetic to the enormous loss they will feel but I consider that the departure of the mother and X for Country D should be orderly but not unduly delayed.
I have considered the father’s proposed orders for spending time with X after her relocation. I do not consider it appropriate to provide for incremental increases based merely on the effluxion of time. It is too uncertain. I am satisfied that the provision for spending time which I have made is appropriate for the foreseeable future.
As discussed above, the 1996 Convention is not in force between Australia and Country D. However, Country D has designated a senior judge to the International Hague Network of Judges and there is an easy protocol for judicial cooperation between our countries. No one should hesitate to make requests.
I contemplate that I will be in contact with the Network Judge in Country D to assist with the homologation of this Order.
I am satisfied that the orders set out at the beginning of these reasons are in X’s best interests.

I certify that the preceding four hundred and twenty-nine (429) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Associate:
Dated: 7 December 2022
ANNEXURE A
1.The parents have equal shared parental responsibility for the child X born 2016 (“X”).
2.X live with her mother.
3.Subject to paragraph 4 and 5 of this Order, the mother have permission to relocate the primary residence of X to Country D, and X be permitted to travel to Country D with the mother for the purpose of the child permanently residing in Country D.
4.Prior to the departure of the child from Australia, the father and mother do all act and things necessary to ensure:-
(a)the orders of this Court are formally homologized in the Superior Court (…) in Country D.
(b)once homologized, obtain a Country D final order which once issued is enforceable in Country D;
(c)the mother shall expressly declare that she will comply with the agreed orders, and that there is no impediment to the child having the specified time with the father.

5.The mother provide the father with not less than 30 days notice of the child’s departure from Australia and flight details.
6.The mother be solely responsible for any related expenses to her and X travelling to Country D for the purpose of relocating.
7.The mother notify the father about arriving in Country D promptly upon arrival and notify the father again once X has reached her intended destination within Country D.
8.Commencing 24 hours after X returns to Country D, the father have audio-visual communication with X every second day:
(a)between 6:30am and 8:30am Australian Eastern Standard Time (between 5:30pm and 7:30pm in Country D) for up to 10 minutes with the mother to place the call unless the father notifies the mother by text that he will not be available on that day. The mother is to ensure and facilitate such call by ensuring a reliable internet and telephone line is available.
(b)At such other or further times as agreed to between the parties.

9.The existing orders in relation to the father’s time with X continue in full force and effect until X departs Australia.

In Country D
10.The father be at liberty to travel to Country D, upon providing the mother notice of his intention to travel in writing at least 90 days.
11.The mother and father be responsible for the costs of the father’s airfares to Country D as follows:
(a)The mother to pay or reimburse the father for the reasonable cost of the father’s return pre-purchased economy airfares for one visit per calendar year.
(b)Any visits in excess of one visit per calendar year to be paid at the sole expense of the father.

12.For the father’s stay in Country D, the mother is to offer and the father may accept appropriate accommodation at the home of the maternal grandparents. Should the father not accept the mother’s offer, the father is responsible for arranging and paying for his own accommodation.
13.That whilst the father is in Country D, the father spend time and communicate with X as follows:
(a)from 11.00am to 4.00pm each Wednesday and Thursday and from 9.00am to 5.00pm each Saturday;
(b)At the time X reaches four years of age, X spend one (1) overnight with her father each weekend the father is in Country D and that such overnight time increase by one night each calendar year thereafter.
(c)At such other times as may be agreed to between the parties.

In Australia
14.The parties do all things necessary to arrange for X to travel to Australia each alternate year from 2023 or in the calendar year following the father having travelled twice to Country D to spend time with X (which ever first occurs) and upon the mother giving the father 30 days’ notice in writing of the intention for X to travel to Australia.
15.The mother and father be responsible for the reasonable costs of the mother and X’s pre-purchased economy airfares to Australia as follows:
(a)The father to cover the cost of the mother’s pre-purchased economy return airfares for up to two visits per calendar year.
(b)Any visits in excess of two visits per calendar year to be paid at the sole expense of the mother.

16.The father make arrangements for accommodation for the mother and X to reside in during such visit, such accommodation being either:
(a)A hotel room or self-contained accommodation, safe and of appropriate standard for the duration of such visit and to meet all associated costs of such accommodation.
(b)The accommodation to be within 7km of the Melbourne Town Hall unless otherwise agreed in writing.

17. Whilst X is in Australia, the father spend time and communicate with X as follows:
(a)from 11.00am to 4.00pm each Wednesday and Thursday and from 9.00am to 5.00pm each Saturday;
(b)At the time X reaches four years of age, X spend one (1) overnight with her father each weekend X is in Australia and that such overnight time increase by one night each calendar year thereafter.
(c)At such other times as may be agreed to between the parties.

18.Upon the commencement and conclusion of time, the father is to collect X from and deliver X to the accommodation where X is staying.

IT IS FURTHER ORDERED THAT:
19.The mother provide the father with a different video or photograph of X not less frequently than one a week, and written updates at least twice a week as to X’s progress and development.
20.The mother ensure that that in the child’s bedroom, there is a series of photos of the father with the child, for ready viewing by the child.
21.The father provide X with a photo of himself and/or the paternal grandparents and/or paternal family members not less frequently than one each alternate week and the mother assist X to compile an album or collection of all such photos.
22.The mother shall ensure that the child continues to learn and speak English, so as to facilitate better communication with the father.
23.The father may request that the mother arrange private English language tuition for X but, if he does so, the father be responsible for the reasonable cost of that tuition.
24.The father may request that X be enrolled in the international AS School but, if he does so, the father be responsible for the reasonable cost of all education and enrolment expenses, with the mother doing all acts and things necessary to enrol X.
25.In the event that the parties agree to an alternate national local school, the parties share equally all education and enrolment expenses.
26.Paragraph 4(a) of the Order made 1 April 2020, in relation to maintenance, continue in full force and effect until X departs Australia.
27.The appointment of the Independent Children’s Lawyer be discharged upon X departing Australia.
28.The parties have leave to apply urgently in relation to implementation of this Order, homologation and enforcement of this Order in Country D.
29.That if any parenting application, including a contravention application, is filed in this Court in relation to X between now and when X departs Australia, the matter may be listed promptly before me for directions if I am reasonably available.
30.All extant applications be dismissed.

force 2 September 1990).

File number(s):	MLC 2872 of 2017
Judgment of:	BENNETT J
Date of judgment:	7 December 2022
Catchwords:	FAMILY LAW- PARENTING – relocation to Country D - where mother seeks to return to her country of origin but the father maintains that the child should not be able to leave Australia in the foreseeable future- where mother is solely dependent upon father for financial support in Australia – where decision reserved after defended hearing in 2019 – where COVID-19 pandemic intervened and judgment remained reserved – where several interim applications are determined - where reasons for decision and draft orders handed down with request to parties to refine draft orders with detail – where draft orders not refined – where father makes application to re-open his case – where all parties given leave to re-open to adduce expert evidence in relation to COVID-19 issues and recent events – where further defended hearing held – where final reasons are delivered in four parts to incorporate earlier reasons – where the court is satisfied that it is in the child’s best interests to be able to relocate to Country D notwithstanding a curtailment of her relationship with the father – direct judicial communication through International Hague Network of Judges.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D & 68LA
Cases cited:	A & A: Relocation approach (2000) FLC 93-035; [2000] FamCA 751 B & B: Family Law Reform Act (1997) FLC 92-755; [1997] FamCA 33 U v U [2002] HCA 36; (2002) FLC 93-112
Division:	Division 1 First Instance
Number of paragraphs:	429
Date of hearing:	18, 19, 20 & 23 December 2019; 27 March 2020; 10 December 2020; 8 February 2021; 6 April 2021; 22 April 2021; 3 November 2021; 28 January 2022; 26 - 29 April 2022 & 2 - 6 May 2022
Place:	Melbourne (via Ms Teams)
Counsel for the Applicant:	Mr Whitchurch
Solicitor for the Applicant:	Macgregor Solicitors
Counsel for the Respondent:	Ms Stoikovska SC
Solicitor for the Respondent:	Lander And Rogers
Counsel for the Independent Children’s Lawyer:	Mr Eidelson
Solicitor for the Independent Children’s Lawyer:	Southern Family Law

Table of Corrections
14 December 2022	In the citation number at the first page of the cover page “[…]” has been added to reflect the mother’s full name. ]
14 December 2022	Addition of court orders made on 7 December 2022 as amended pursuant to the slip rule on 12 December 2022 as underlined and annotated at paragraphs 1 and 26 of the orders.
14 December 2022	Draft orders of February 2021 reasons which formerly appeared between paragraphs 22 and 23 now appear as an annexure “A”.
14 December 2022	Further catchwords were added to the cover page.

MLC 2872 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BIONDI Applicant
AND:	MR KOEN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BENNETT J
DATE OF ORDER:	7 December 2022