Biondi & Koen (No 6) - [2024] FedCFamC1F 294

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biondi & Koen (No 6) [2024] FedCFamC1F 294

File number(s): MLC 2872 of 2017

Judgment of: WILLIAMS J

Date of judgment: 6 May 2024

Catchwords: FAMILY LAW – RELOCATION – Remittal for rehearing of the mother’s application to relocate to Country D – Where the mother seeks to return to her country of origin, but the father maintains it is the child’s best interest to remain in Australia – Where the mother is currently entirely dependent on the father for financial support – Where the court is satisfied it is in the child’s best interest to refuse the relocation application – Orders that the parents have equal shared parental responsibility of the child and the child spends significant and substantial time with the father

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CB, 60CC, 60CD, 60CE, 60CF, 60CG, 61DA, 65DAA, 67ZC

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

A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230

Re Andrew (1996) FLC 92-692; [1996] FamCA 43

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Taylor & Barker (2007) 37 Fam LR 461; [2007] FamCA 1246

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

Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 302

Date of hearing: 6-8, 20-21 December 2023 and 5-8, 21-22 February 2024

Place: Melbourne

Counsel for the Applicant: Mr Whitchurch

Solicitor for the Applicant: Macgregor Solicitors

Counsel for the Respondent: Ms Swann

Solicitor for the Respondent: Lander & Rogers

Counsel for the Independent Children's Lawyer: Mr Eidelson

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

WILLIAMS J

DATE OF ORDER:

6 MAY 2024

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

Parental responsibility
2.The applicant mother and the respondent father have equal shared parental responsibility for the child of the relationship, X, born 2016 (“the child”).
3.From the date of these Orders until 28 January 2025, the child live with the Mother and spend time with the Father during the Victorian gazetted school term for five (5) nights each fortnight, on days as agreed between the Mother and Father, in writing and in default of agreement:
(a)In week one, from the conclusion of school on Friday (or 12.00 pm noon if a non-school day) to the commencement of school on Monday (or 12.00 pm if a non-school day); and
(b)In week two, from the conclusion of school on Wednesday (or 12.00 pm noon if a non-school day) to the commencement of school on Friday (or 12.00 pm if a non-school day); and
(c)Any such further or other time as may be agreed between the parents in writing from time to time.

4.Commencing on 29 January 2025 and thereafter, the child’s time in week one of the two-week cycle referred to in paragraph 3 hereof, commence from the conclusion of school Thursday (or 12.00 pm if a non-school day).

Changeovers
5.For the purposes of the preceding Orders and all spend time arrangements pursuant to these Orders, all changeovers must occur at the child's school, unless otherwise agreed in writing between the parents from time to time.

School Holidays
6.For the purposes of time during the Victorian gazetted school term holidays and the Victorian gazetted long summer holidays, the preceding paragraph of these Orders be suspended, and the child's time with each parent is to occur as follows:
(a)For the short school term holiday periods, the child live with each parent on a equal basis as agreed between the parties in writing from time to time, and in default of agreement:
(i)In 2024 and each alternate year thereafter, with the Mother for the first half of the school term holidays and the Father for the second half of the school term holidays, with changeover to occur at 10.00am on Saturdays; and
(ii)In 2025 and each alternate year thereafter, with the Mother for the second half of the school term holidays and with the Father for the first half of the school term holidays, with changeover to occur at 10.00am on Saturdays;

(b)For the long summer holiday period, the child live with each parent for half of the long summer holiday period by agreement in writing from time to time, and in default of agreement:
(i)In 2023/24 and each alternate year thereafter, with the Mother for the first week and each alternate week thereafter, and with the Father for the second week and each alternate week thereafter, with changeover to occur at 10.00am on Saturdays; and
(ii)In 2024/25 and each alternate year thereafter, with the Father for the first week and each alternate week thereafter and with the Mother for the second week and each alternate week thereafter, with changeover to occur at 10.00am on Saturdays.

7.At the conclusion of the school term holidays and long summer holidays being the first Monday of the school term, the child's time is to recommence with each parent pursuant to paragraphs 2 and 3 of these Orders and for this purpose, it is intended that time will recommence where it left off prior to the school holidays.

Special occasions
8.The child's time with each parent during special occasions be as agreed between the Mother and Father in writing from time to time and in default of agreement, then as follows:
(a)With the Father from 3.00 pm Christmas Eve until 5.00 pm on Boxing Day in every year.
(b)The child spend time with the Mother on Mother's Day from 3.30pm the Friday prior to Mother's Day until the commencement of school on Monday (or 10.00am if a non-school day) if not otherwise in her care pursuant to these Orders;
(c)The child spend time with the Father on Father's Day from 3.30pm the Friday prior to Father's Day until the commencement of school on Monday (or 10.00am if a non-school day) if not otherwise in his care pursuant to these Orders;
(d)With the Father from 5.00pm on the Thursday immediately before Good Friday until 5.00pm on the Monday immediately following Easter Sunday in every year.
(e)Any such other times as may be agreed between the Mother and Father in writing from time to time.

Medical
9.The Father and Mother will notify the other, as soon as practicable, of any serious injury, illness or medical emergency affecting the child whilst in their respective care and provide all information and particulars to the other parent regarding the injury, illness and any healthcare professional or allied health professional treating the child, and both parents be permitted to attend the hospital or related medical appointment in the event of same.

Communication
10.The parties inform the other of any change of residential address at least fourteen (14) days prior to such change and an email address and/or mobile telephone details forthwith upon such change.
11.The parties facilitate the child contacting the other parent via telephone or FaceTime at any reasonable time that the child expresses a wish to do so and that phone calls be for no longer than 15 minutes.
12.The parent with whom the child is present between 4.30 pm and 5.00 pm on Sunday ensure that the other parent can communicate with the child by telephone and/or Facetime during that time.
13.Notwithstanding any Intervention Order that may be in place, the parties each be at liberty to communicate with each other via text message and/or other such digital messaging service to discuss parenting matters.

School
14.In relation to the child's school, AR School, or any other school agreed by the parties from time to time, the Father and Mother be and are hereby permitted and authorised to:
(a)Attend the school for the purpose of reasonable communication with the school staff;
(b)Attend any school attended by the child for the purpose of participating in any activity where parent helpers are invited;
(c)Request and receive copies of all reports, photographs and notices usually provided to parents, at their expense respectively (if any); and
(d)Attend all functions and activities, including extracurricular activities, including but not limited to parent teacher interviews (separately), school assemblies, school productions, presentation days, reading days and sports days and other like special events at the school/s or arranged by the school/s to which parents are ordinarily invited to attend.

15.Each parent be at liberty to provide a copy of these Orders to the child’s schools (or any of them) in order to give effect to these Orders.
16.Both parties be permitted to attend all extra-curricular activities that the child may be enrolled in and otherwise wish to participate in from time to time.
17.The parents forthwith do all things necessary to arrange for the child to engage with the school counsellor and speech therapist at AR School, in accordance with the behavioural plan developed by the school, and to arrange for the child to undergo a DET student assessment as recommended by the school.

Airport Watchlist Order
18.The Applicant Mother Ms Biondi born in 1981 and the Respondent Father Mr Koen born in 1981 their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child X born 2016 from the Commonwealth of Australia. This order ceases to have effect in 2034.
19.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.
20.IT IS REQUESTED THAT the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders. This order ceases to have effect in 2034.

International Travel
21.Upon the expiration of the Airport Watchlist Order pursuant to the preceding paragraphs or in accordance with the joint written agreement of the Mother and Father in the prescribed form, the Mother and Father be permitted to travel internationally with the child outside the Commonwealth of Australia during that parent's time with the child pursuant to these Orders or as otherwise agreed in writing between the Mother and Father, upon the provision of:
(a)30 days' written notice to the other parent;
(b)Contact details for the duration of travel;
(c)Copies of the return tickets;
(d)In the case of the Mother, the sum of $100,000 is to be paid prior to any travel to the solicitors for the Father to be held on trust pursuant to these Orders, with such sum to be released to the Mother upon the child's return to Australia and otherwise released to the Father if the Mother does not cause the return of the child to Australia in accordance with such travel arrangements.

22.Within 24 hours of the making of these Orders, the Mother deliver the child's Australian passport to the Court for safekeeping.
23.Each parent do all such acts and things and sign all such necessary documents to obtain an Australian passport for the child and keep such passports renewed, with all passports for the child, including her Australian passport/s her Country D passport/s, and Country LL passport/s to be held:
(a)By the Registry of the Federal Circuit and Family Court of Australia, and not to be released to either party unless in accordance with the joint written consent of the parties or in accordance with these Orders.

Other
24.All extant applications, including (but not limited to), the mother’s application for financial and property orders in her (Further Amended) Initiating Application filed on 26 October 2023, be and are hereby referred to the Case Management Judge for fixing in due course as a defended hearing.
25.The Independent Children’s Lawyer is hereby discharged.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION

The applicant is the mother, and the respondent is the father of the child, X (“the child”) born 2016, who is now 7 years old. The parents have been in dispute about the child’s care for many years and have been engaged in protracted litigation, almost since her birth.
On 7 December 2022 orders were made by a judge of this Court, permitting the mother to relocate the child’s residence to Country D. The father successfully appealed those orders, and the matter was remitted for rehearing. Before the court are the current applications of the parties.
The mother seeks to permanently relocate the child’s residence from Australia to Country D, to have sole parental responsibility whilst residing in Country D, and for the father to spend time with the child in Country D each year and in Australia each alternate year. The father opposes the relocation, seeks equal shared parental responsibility and for his time with the child to immediately increase to six nights per fortnight, with a further increase as from 29 January 2025 to the child living with each parent on an equal shared care basis.
For the reasons that follow, I have determined the child’s best interests are served by her remaining in Melbourne, living with her mother, and an incremental increase in time with her father to six nights per fortnight.
MATTERS REQUIRING JUDICIAL DETERMINATION
The following issues require judicial determination:
(a)Whether the mother should be permitted to relocate the child to her native Country D, which is opposed by the father;
(b)The mother’s current immigration status and her future ability to live and work in Australia;
(c)If the child is permitted to relocate to Country D:
(i)parental responsibility;
(ii)the father’s time with the child in Country D and Australia;
(iii)the financial arrangements for the child and accompanying parent to travel between Australia and Country D; and
(iv)the capacity for orders of this court to be registered and enforced in Country D to ensure the father is able to spend time with the child in Country D.
(d)If the child remains in Melbourne:
(i)parental responsibility;
(ii)with whom the child should live;
(iii)spend time arrangements for the non-residential parent;
(iv)should the child be permitted to travel to Country D, and if so the relevant financial arrangements and conditions precedent;
(v)which school the child should attend;
(vi)appropriate counselling for the child; and
(vii)should the mother be permitted to apply for a Country LL passport for the child.
If the mother is not permitted to relocate the child to Country D, she seeks orders for financial support and property adjustment, although she conceded the financial proceedings had been bifurcated by an order made on 6 September 2019, and that application would be determined at a later date.
BACKGROUND INCLUDING RELEVANT PROCEDURAL HISTORY
The background to this matter is complex, significant, and relevant to my ultimate determination of what is in the child’s best interests.
The mother is aged 42 years and is currently unemployed. She is a dual citizen of both Country D and Country LL, having lived in Country D prior to coming to Australia in 2015 to learn English and further her studies. She travelled to Australia on a study visa and now remains in Australia on a visitor visa. She has applied for a contributory parent visa.
The father is aged 43 years and is the proprietor of a business. His family heritage is of Country P.
The parties met in early 2016 while the mother was employed by the father’s business. They started a relationship a short time later and the mother became pregnant shortly thereafter. The parties commenced cohabitation in the father’s home in mid-2016.
In 2016, the father arranged for the maternal grandmother to travel from Country D to Australia to support her daughter with the birth of the child. The child was born in 2016.
Thereafter the parties relationship deteriorated, and in early 2017 the mother applied for an intervention order against the father alleging he was verbally abusive.
Around 20 February 2017 the parties separated, and the mother, maternal grandmother, and child left the father’s home. In early 2017 an Interim Intervention Order was made against the father, with the mother and child listed as protected persons.
On 24 March 2017, the mother filed an Initiating Application in the Federal Circuit Court seeking financial orders. On 7 April 2017, the father filed a response seeking interim and final financial and parenting orders.
On 10 April 2017, consent orders were made providing for the father to provide financial support to the mother and child, and for the father to spend time with the child.
On 4 May 2017, the mother filed an (Amended) Initiating Application seeking parenting orders, including an order permitting her to relocate the child to Country D.
On 18 May 2017 the proceeding was transferred to the Family Court (as it was then), and between 19 July 2017 and 12 October 2017 there were various interim proceedings determined by a senior registrar and the trial judge.
In late 2017, the Intervention Order proceedings were resolved by the father providing an undertaking.
Between 2 August 2018 and 18 December 2019, there were numerous applications/responses filed by both parties, and the parties attended both a Child and Parent Issues Assessment and a Family Report interview, prior to the five-day defended parenting hearing commencing on 18 December 2019.
On 23 December 2019 at the conclusion of the five-day hearing, orders were made by the court reserving the final decision until a date to be specified, progressively increasing the child’s time with the father including supervised overnight time, and for an increase of weekly spousal maintenance payable by the father.
Because of the Covid-19 pandemic in March 2020 and the subsequent government mandated lockdowns in Melbourne which first occurred on 31 March 2020, the trial judge heard three further applications between 27 March 2020 and 8 February 2021.
On 12 February 2021, the trial judge delivered reasons for judgement pertaining to the substantive relocation application, which permitted the mother to relocate the child to Country D. On 24 February 2021 the matter was listed before the trial judge and the parties were invited to provide amendments to her Honours draft orders. No proposed amendments were ever submitted, and final orders were not made.

On 9 March 2021 the father filed an Application in a Proceeding seeking leave to adduce fresh evidence about the impact of Covid-19 on relocation to Country D.
On 22 April 2021, the trial judge granted leave to the parties to reopen their respective cases.
Between April 2021 and April 2022 there were further interim applications and orders made, which included an order to obtain a further Family Report.
In late 2021 the mother took the child to the AD Hospital because she was concerned about bruising, which she asserted had occurred during the child’s time with the father. The bruising was assessed as normal childhood bruising, however because of disclosures made by the child, a notification was made to child protection which resulted in an investigation.
On 26 April 2022 a further hearing commenced before the trial judge which ran for an additional nine days. On 7 December 2022 final orders and reasons for judgement were delivered, which permitted the mother to relocate the child to Country D.
On 20 December 2022, the father filed a Notice of Appeal and an Application in a Proceeding seeking a stay of the orders made on 7 December 2022. The stay was granted on 21 December 2022.
On 14 February 2023, the matter was listed for interim defended hearing regarding the extant issue of the child’s commencement at school. It can be assumed that the primary judge advised the parties in court that the child was to attend school, however it appears no formal orders were published regarding same.
On 8 June 2023 the Full Court of this court allowed the father’s appeal, delivered its reasons for judgement, and remitted the matter for rehearing.
An updated Family Report was prepared by Ms AX; Court Child Expert on 13 September 2023.
On 6 December 2023 this trial commenced and continued for five days. The trial was adjourned part heard to 5 February 2024 and continued for a further six days.
THE PROPOSALS OF THE PARTIES
The mother’s proposal
On 23 October 2023 the mother filed an (Amended) Application for Final Orders which set out with precision the orders she sought. During the final address of the mothers’ counsel, counsel sought to rely on a (Revised) Minute of Proposed Orders which differed from the mother’s application. A copy of the mother’s (Revised) Minute of Proposed Orders is Annexure “A” to these reasons.
Because of the change to the mother’s proposal, leave was granted to counsel for the father and the Independent Children’s Lawyer to further cross-examine the mother about the amendments to her proposal.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Affidavit in reply of Ms Biondi filed 24 November 2023;
(b)(Amended) Application for Final Orders of Ms Biondi filed 26 October 2023;
(c)Financial Statement of Ms Biondi filed 27 October 2023;
(d)Affidavit of Mr H filed 27 October 2023;
(e)Affidavit of Ms J filed 27 October 2023;
(f)Affidavit of Ms AY filed 27 October 2023;
(g)Affidavit of Ms Biondi filed 26 October 2023;
(h)Family Report of Ms AX dated 13 September 2023;
(i)Numerous parts of the 1228 pages of the transcript filed 20 February 2023;
(j)Joint memorandum filed 13 December 2019;
(k)Memorandum of Understanding filed 17 October 2019;
(l)Case summary document filed 28 November 2023;
(m)(Amended) Minute of Proposed Orders dated 14 February 2024; and
(n)Documents tendered by counsel.
The father’s proposal
Prior to the commencement of the trial, the father filed an Outline of Case which set out the final orders he sought.
Subsequent to the mother’s change of position in her (Revised) Minute of Proposed Orders, the father proposed an (Amended) Minute of Orders on 21 February 2024, which are Annexure “B” to these reasons.
Documents relied upon by the father
The father relied upon the following documents:
(a)(Further Amended) Response to (Amended) Initiating Application of Mr Koen filed 10 November 2023;
(b)Affidavit of Mr Koen filed 10 November 2023;
(c)Financial Statement of Mr Koen filed 10 November 2023;
(d)Affidavit of Mr XX filed 10 November 2023;
(e)Affidavit of Mr AZ filed 13 November 2023
(f)Case summary document filed 29 November 2023; and
(g)Documents tendered by counsel.
The Independent Children’s Lawyers proposal
Prior to the commencement of the trial, the Independent Children’s Lawyer filed an Outline of Case which was in support of the mother’s preliminary position that the mother be permitted to relocate the child to Country D, and for the father to spend time with the child in both Country D and Australia.
At the conclusion of the trial, the position of the Independent Children’s Lawyer changed substantially, so that the child should not be permitted to relocate to Country D. A copy of the final proposed Minute of the Independent Children’s Lawyer is Annexure “C” to these reasons.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
(a)Family Report of Ms AX dated 13 September 2023;
(b)DFFH Reports;
(c)Documents provided via subpoena (various);
(d)Financial statements of each parent;
(e)Case summary document filed 5 December 2023; and
(f)Documents tendered by counsel.
Tendered documents
The following exhibits were tendered during the course of the trial:

Exhibit Number Description

M-1 Bundle of financial documents produced by father in response to a call.

M-2 Proposed Binding Financial Agreement prepared in 2016.

F-1 Estimated travel costs to Country D included in father’s tender bundle.

F-2 Estimated travel costs to Melbourne included in father’s tender bundle.

F-3 Case plan.

F-4 Risk assessment, dated December 2021.

F-5 Case planning meeting record, dated November 2021.

F-6 Case notes: discussion with mother dated December 2021.

F-7 Case notes: email to mother and father regarding Language EE speaking psychologists dated November 2021.

F-8 Case notes: call from MCHN, Ms BA, dated October 2021.

F-9 Case notes: email from the father, dated October 2021.

F-10 Case notes: internal re kindergarten and changeover, dated October 2021.

F-11 Case notes and photo of bruising, dated October 2021 (p 54-55).

F-12 Case notes and photo of bruising, dated October 2021 (p 56-57).

F-13 Adult Intermediate Risk Assessment Tool, dated October 2021.

F-14 First visit case notes, dated October 2021.

F-15 Investigation plan, dated October 2021.

F-16 Intake record, dated October 2021.

F-17 Transition learning and development statement, dated November 2022.

F-18 Student chronicle, dated February 2023 to October 2023.

F-19 Notes from meeting with parents

F-20 Transcript of text messages between Mr BC and the parents, dated February 2023 to October 2023.

F-21 Request for guidance officer/psychological involvement – father’s consent, dated May 2023.

F-22 Email from mother to school, dated June 2023.

F-23 Email from father to Mr BD (Principal), dated July 2023.

F-24 Email exchange between Mr BD and the mother, dated July 2023.

F-25 Email exchange between the mother and Mr BD, dated July 2023 to August 2023.

F-26 Email from Ms BE to Mr BC and Ms BF, dated September 2023.

F-27 UU Lawyers file note: call between Ms BG and the mother, dated November 2021.

F-28 UU Lawyers letter to onshore visitor visa processing, dated December 2022.

F-29 UU Lawyers file note: call between Ms BH and the mother, dated July 2023.

F-30 Child support assessment, dated August 2023.

F-31 Letter from Macgregor Solicitors to Lander & Rogers with enclosed passport application (pursuant to call for documents during trial), dated November 2023.

F-32 Text messages between mother and father regarding car breakdown, dated December 2023.

F-33 Text messages between mother and father, dated December 2023.

F-34 Text messages from mother to father (being clear copies of RF-10 of Father's Trial Affidavit), dated July 2023.

F-35 File note of Ms AY, dated July 2023.

F-36 File note of Ms AY, dated July 2023.

F-37 File note of Ms AY, dated August 2023.

F-38 File note of Ms AY, dated August 2023.

F-39 File note of Ms AY, dated August 2023.

F-40 File note of Ms AY, dated September 2023.

F-41 File note of Ms AY, dated September 2023.

F-42 Text messages from mother to father about religious reference and screenshot of father’s mobile phone showing WhatsApp profile of mobile number of mother.
THE APPLICABLE LAW
Evidence

The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence;
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
The mother and father relied upon their respective affidavits. The affidavits recounted the history of the parties’ relationship and their parenting dispute. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 234 CLR 492 at [62], Gleeson CJ, McHugh and Gummow JJ said:
62.…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
CREDIBILITY OF WITNESSES
The mother’s witnesses
The mother gave evidence and was cross-examined by both counsel for the father and the Independent Children’s Lawyer. She was cross-examined over the course of four days, and then an additional day after leave was granted for further cross-examination regarding the amendments to her proposal. She frequently refused to directly answer questions, was sometimes evasive and was reluctant to make concessions. She concealed from the court the reason for her objection to the child spending weekend time with her father, which did not become apparent until her second tranche of cross-examination. I do not accept she was sincere in her evidence about promoting the child’s relationship with her father because her answers during cross examination, proposals for the child’s time with the father, and her actions clearly indicated otherwise.
Mr H, the maternal grandfather, gave evidence and was cross-examined by both counsel for the father and the Independent Children’s Lawyer on 5 February 2024. As he lives in Country D, his evidence was given via Microsoft Teams with the assistance of a Language EE interpreter. Contrary to the mother’s prior evidence that she shared a close relationship with her family in Country D and spoke to them regularly, the maternal grandfather knew very little about his daughter. His evidence regarding his “phobia” and reasons for not travelling to Australia were also entirely unconvincing in the context of being a purported close-knit family.
Ms J, the maternal grandmother, gave evidence and was cross-examined by counsel for both the father and the Independent Children’s Lawyer on 21 December 2023. As she lives in Country D, her evidence was given via Microsoft Teams with the assistance of a Language EE interpreter. Akin to the maternal grandfather, her evidence lacked any understanding of the reality of her daughter’s situation despite allegedly sharing a close bond with her daughter.
Ms AY, the mothers treating psychologist gave evidence and was cross-examined by counsel for both the father and the Independent Children’s Lawyer on 21 December 2023. She clearly wanted to support the mother and relied entirely on what the mother had told her. She lacked objectivity, as would ordinarily be expected from a professional witness.
The father’s witnesses
The father gave evidence and was cross-examined by counsel for both the mother and the Independent Children’s Lawyer. He was cross-examined over the course of two days, and then an additional day regarding the mothers’ amendments to her proposed Minute. He impressed as a truthful witness who provided considered and level responses to questions. He clearly possesses a capacity to reflect on his own deficiencies.
Ms AX, the Family Report writer, gave evidence and was cross-examined by both counsel for the mother and the Independent Children’s Lawyer on 7 and 8 February 2024. She presented to be lacking in experience and it became clear throughout cross-examination that her Family Report was significantly flawed, with many conclusions being unsupported or having little evidentiary basis. She was unable to explain why she had selectively read past material prior to conducting the assessments, although she agreed this may have influenced her view of the dispute. Despite the deficiencies in the Family Report, she correctly identified the lack of trust between the parties, and I accept her observations of each parent and the child. To her credit, she was prepared to make admissions and concessions during difficult and challenging cross-examination by counsel for both the father and the Independent Children’s Lawyer.
THE LEGAL PRINCIPLES APPLICABLE TO PARENTING DISPUTES
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth) (“the Act”) to determine what orders are in the children's best interests.
The following principles may be discerned from the authorities including: AMS v AIF (1999) 199 CLR 160, A v A: Relocation Approach (2000) FLC 93-035, U v U (2002) FLC 93-112, Taylor & Barker (2007) 37 Fam LR 461, Morgan & Miles (2007) FLC 93-343:
(a)there is no discrete category of relocation cases;
(b)the child’s best interests are the paramount, but not the only consideration in relocation cases;
(c)a parent who seeks to relocate need not show compelling reasons, but must adduce evidence which enables a court, on balance, to find a parenting order permitting location is in the best interests of the child;
(d)the court must evaluate the competing proposals, considering the advantages and disadvantages for the child’s best interests for each proposal;
(e)neither party bears an onus to establish that a relocation or a continuation of an existing regime is in the child’s best interests; and
(f)the child’s best interests must be weighed and balanced with the “right” of freedom of movement of the parent who proposes to relocate, but that right must defer to the child’s best interests.
Part VII of the Act sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
Additionally, s 67ZC(1) of the Act provides in addition to the jurisdiction a Court has under Part VII of the Act in relation to children, the Court also has jurisdiction to make orders relating to the welfare of children. Section 67ZC(2) provides that in deciding what order to make, the Court must regard the best interests of the child as the paramount consideration and notes that ss 60CB–60CG deal with how a court determines a child’s best interests.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I may not specifically referred to each consideration: Banks & Banks (2015) FLC 93-637.
As far as parental responsibility is concerned, s 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the Court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.
An order for shared parental responsibility requires decisions about major long-term issues to be made jointly in consultation with the other person.
Primary Considerations
I will now address the primary considerations.
The benefit to the child of having a meaningful relationship with both of the child’s parents
Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents.
In Mazorski v Albright (2007) 37 Fam LR 518, Brown J at [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
In Sigley & Evor (2011) 44 Fam LR 439, the (then) Full Court of the Family Court referred to the following propositions concerning s 60CC(2)(a):

(a) a meaningful relationship is one “which is important, significant and valuable to the child” (Mazorski v Albright (2007) 37 Fam LR 518, Brown J at [26]);
(b) the enquiry is “prospective” which requires a court to consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (McCall & Clark (2009) FLC 93-405 at [118]).

In this matter, both parties contend the child should have a meaningful relationship with both parents.
If relocation is permitted, the child will obviously have a meaningful relationship with her mother as her primacy carer. If orders are made in accordance with the mother’s proposal, the child will live primarily in her care and if orders are made in accordance with the father’s proposal, she will remain in her mother’s primary care until the end of 2025 and thereafter, will live week about with each parent. The mother asserts the orders sought by her for the father to spend time with the child subsequent to relocation of her residence to Country D, enable the child to have a meaningful relationship with both parents.

Conversely, the father contends the only way the child will continue to have a meaningful relationship with him is if she remains in Australia and spends significant and substantial time with him. The child will benefit from the involvement of each parent in her daily life and routine including:
(a)taking her to school and extracurricular activities and assisting her with homework;
(b)spending regular time together during term time, holidays, and special occasions; and
(c)being immersed in the cultural life of each of her parent’s prospective heritage.
The father is fearful that he may be deprived of a relationship with the child if relocation to Country D is permitted. Contrary to the mother’s oral evidence, the father contends she will refuse, neglect, or frustrate the facilitation and promotion of the child’s relationship with him, which is evident from the mother’s historical behaviour. The mother’s trial affidavit was replete with denigration of the father, including calling him a liar, deceitful, passive-aggressive, and manipulative.
The father asserts since the commencement of litigation six years ago, the mother has demonstrated her reluctance to promote the child developing a meaningful relationship with her father, unless it is on her terms. Relevant examples are:
(a)unreasonably resisting the introduction of extended overnight time between the father and the child. After overnight time was ordered on 23 December 2019, in March 2020 the mother sought orders to suspend or delay the commencement of overnight time;
(b)refusing to consent to the child spending a whole weekend with her father. This is further referred to below;
(c)alleging, either explicitly or by implication, that the father and his family members have verbally and physically abused the child. In late 2021 she took the child to the AD Hospital to investigate bruising, and encouraged the child in making disclosures that the bruising may have been caused by the father, which resulted in the involvement of child protection;
(d)during the trial which commenced in April 2022, the mother continued to assert the child was not safe in the father’s care; and
(e)the mother’s alleged comments to the child during the course of further child protection involvement in April 2022 and July 2022, where it was alleged the mother was overheard telling the child the father was “bad” and that she had secret plans to take the child to Country D.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
This consideration was not the focus of the trial, although there was some reference to historical allegations of harm which resulted in the involvement of child protection. In particular, the mother taking the child to the AD Hospital in late 2021 and the subsequent events.
Additional considerations
The additional considerations are set out in s 60CC(3) of the Act. I will now consider the additional considerations.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child turned 7 in 2023. The mother considers the child to be a “happy and contented child” who has “always been advanced, developmentally in all areas of learning”.[1]
[1] Affidavit of Ms Biondi filed 26 October 2023.
In her trial affidavit the mother describes the child as “getting really excited about going to [Country D] to meet the family”.
In the latest Family Report, the child expressed a view of wanting to live with her mother, and her excitement about the prospect of living in Country D. It is reported that the child “explained she would like to be able to hug her grandparents rather than hug them over the phone”, however, the Family Report writer noted that “there was limited understanding regarding a possible relocation… it would be difficult for [the child] to conceptualise what it would mean for her to reside in a different country”.
It is obvious from the mother’s evidence in her trial affidavit and the comments of the child to the Family Report writer, the mother has discussed with the child the prospect of relocation to Country D as a reality. I agree with the submissions of counsel for the father that the child’s alleged excitement can only be based on what the mother has told her about the future, and not any independent assessment or understanding of what relocation to Country D actually entails.
The father contends the child has at various times also expressed wanting to live with him. At seven years of age, the child cannot possibly be expected to understand what life would be like in Country D, nor the full extent of the change in her relationship with her father.
I agree with the statement in the mothers’ Outline of Case, that the child is “too young to have expressed specific views”. I do not intend to place weight on the child’s comments.
The nature of the relationship of the child with:
- each of the child's parents
- other persons (including any grandparent or other relative of the child)
It is uncontroversial the child enjoys a close and loving relationship with each of her parents, which was identified in the Family Report dated 13 September 2023. The Family Report writer stated the child seemed comfortable moving between her parents and that both parties were able to be in the presence of each other and the child with no obvious tension. She commented on the child “sharing a strong maternal bond” with her mother and referred to the father and child’s close bond and warm attachment.
According to the father, the child has a close relationship with her paternal extended family, and she regularly spends time with her grandparents, aunties, and cousins when she is in the care of her father. If relocation to Country D is permitted, her regular time with her father and the extended paternal family will be severely compromised to the extent the child will not have a meaningful relationship with her paternal relatives. There was no suggestion the paternal family could, or would, be able to travel to Country D. The only opportunity for face-to-face time would realistically be each alternate year if the child returned to Australia.
As to electronic communication with the paternal family, presumably that could occur in some limited capacity, depending on the willingness of the mother to facilitate same. Ironically, part of the mother’s case is that the current electronic communication between the child and the maternal family is less than satisfactory, and relocation to Country D would enable significant face-to-face time between the child and her maternal relatives. Obviously, the mother is keen and happy to facilitate extended and frequent electronic communication between the child and her family members. Whether she would do so with the paternal family members is far less certain.
The evidence of the mother and her parents is that the child has a close connection with her maternal grandparents via video calls which occur almost every day for an extended period. The child speaks Language EE and can converse with the maternal family in their native language.
The paternal grandfather’s evidence was that he spoke to the child sometimes two or three times a week, sometimes every day and for a duration of about one to two hours. They talked about painting, books, drawing and his vegetable garden.
The mother contends the maternal family members are unable to travel to Australia to spend time with her and the child. Her father has health problems coupled with a phobia of flying. There was no medical evidence to corroborate the maternal grandfather’s asserted health problems. During cross-examination he said he had a health emergency in 2021 when he spent time in ICU. Because he has been taking his medication regularly and having annual checkups, there have been no further medical incidents since 2021 and all is going well. During cross-examination the maternal grandfather said he had a phobia of flying and confirmed that he had not investigated any phobia treatment. He did not mention his phobia in his detailed affidavit filed in the proceeding and no explanation for that omission was provided by way of re‑examination.
During cross-examination, the maternal grandmother said she spoke to her daughter every day for two and a half to three hours, except on Saturdays, and the child was always present. The video calls usually happen in the morning (Australian time) which is nighttime in Country D. She agreed she had told the child that she would see her in Country D soon and how much she wants to see her, to which the child responds words to the effect that she wants to go to Country D. She agreed her family will only be complete when the mother and child arrive to live in Country D.
The maternal grandmother’s reason for not having visited her daughter and granddaughter since 2017, was her age (65), and health problems pertaining to circulation which made her legs numb. Despite those problems, her doctor has not told her that she is unfit to fly. She gave further evidence that due to her husband’s health; she could not leave him whilst she travelled to Australia. Her daughter and son who live in Country D are apparently unable to look after their father in her absence because they work.
Both maternal grandparents independently said during their respective cross-examination that they could afford to visit Australia, which directly contradicted the mother’s evidence that her family could not afford the cost of international travel to Australia.
Both counsel for the Independent Children’s Lawyer and counsel for the father submitted there was something very strange and unconvincing about the evidence of the maternal grandparents and their inability to travel to Australia, in the context of their professed love for their daughter and granddaughter and the closeness of their relationship. I accept that submission and find the offered excuses for inability to travel to be most unconvincing.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
-     to participate in making decisions about major long-term issues in relation to the child;
-     to spend time with the child; and
-     to communicate with the child.
The parents have a history of disputed decision making about major long-term issues and both assert the other has failed to engage.
From the mother’s perspective, which was readily apparent from her evidence during cross‑examination, she considers the father to be disrespectful of her parenting role if he disagrees with her opinion or seeks to implement a decision about the child’s welfare, which does not accord with her own views. Examples of her attitude are the disputes about the child attending kindergarten, schooling versus home schooling, and the absence of agreement for psychological counselling and speech therapy as suggested by the school.
From the father’s perspective, he has attempted to engage and participate in decisions about major long-term issues for the child. He has been forced to resort to litigation and judicial determination to ensure the child’s attendance at kindergarten and subsequently at school, in the face of the mother’s opposition and opinion that the child should be home schooled until the age of seven, as occurs in Country D and thereafter commence school. He has also engaged with the school to seek assistance for the child’s behavioural issues and concurs with the school’s position, whilst the mother does not. That issue will be determined in the course of this proceeding.
The mother has failed to include the father in some decision making about long term issues. An example is her unilateral action in arranging for the child to consult a child psychologist in Country D, without the father’s knowledge or consent even after she knew the father disagreed with the child’s attendance on the psychologist.
From the father’s perspective, the mother has not supported numerous attempts by him to spend more time with the child, including initially refusing to allow the child to spend an additional night with the father and his family during Orthodox Easter in 2021, prior to agreeing to one extra night for the child, but only on a day nominated by the mother.
Further, the mother did not agree to the child spending additional time with the father over the 2021/2022 Christmas break, when the father sought an extended period of time of four days. She also did not agree to the father spending time with the child in December 2022 and Christmas Day, so he had to choose between the two, despite the mother not celebrating Christmas.
During the long summer 2022/2023 holidays the mother did not agree to further extending the child’s time with her father other than an additional few nights.
Prior to October 2023, the mother did not agree to the father’s request to restructure his time with the child, so that she could spend each alternate weekend with him. For many years the father has unsuccessfully requested weekend time with the child. In October 2023, the mother agreed to the child spending weekend time with the father from 12.30 pm each alternate Sunday. The issue of weekend time between the father and the child is referred to in greater detail below.
Parental obligation to maintain the child
The mother has maintained the child whilst in her primary care. Her visitor visa prevents her from obtaining employment in Australia, however she receives Centrelink benefits of $315 per week.
The father has consistently complied with his obligations to financially support both the mother and child. Pursuant to orders made on 23 December 2019 and 1 April 2020, and as further agreed by the parties, the father pays the following expenses:
(a)a weekly payment to the mother of $610 ($2,634 per month);
(b)the cost of the mother’s weekly appointments with her psychologist ($160 per session and due to increase to $180 per session);
(c)the use of Motor Vehicle 1 registered in the name of the father’s business, including registration services repairs and insurance (approximately $56 per week);
(d)private health insurance for the mother and child; and
(e)the child’s school fees, uniforms, clothing, activities, and all costs when she is in the father’s care.
In addition to payments referred to in the previous paragraph, as at the date of his trial affidavit, the father has paid $91,000 to fund the mother’s litigation expenses and the cost of her immigration lawyers. In October 2023, he also paid $475 for a medical procedure.
The mother’s visitor visa is due to be renewed in early 2024, and the father is to pay the costs of renewal estimated to be $3,500-$4,000 per annum.
Prior to obtaining her visitor visa, the mother was in Australia on a different visa which expired in mid-2019. Under that visa, the mother was able to work up to 20 hours per week, but she chose not to work. The mother’s immigration status is further referred to below.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents
The mother contends there are numerous benefits for the child if she is permitted to relocate to Country D. The mother views herself as being trapped in a foreign country, which she equates to effectively being imprisoned against her will. According to her, she never had any intention of remaining permanently in Australia, she has been deprived of a relationship with her family, is unable to engage in employment or further her previous career, feels isolated, and is financially dependent on the father.
If relocation is permitted, the mother contends her proposal for the father to travel to Country D annually, or more frequently if he so desires, and for her and the child to travel to Australia each alternate year will adequately maintain the child’s relationship with her father. According to her, the proposal for electronic communication will also encourage and foster the child’s relationship with her father. A relocation to Country D will also provide the child with an opportunity to get to know her extended maternal family.
There was little or no evidence about the child’s day-to-day life if relocation is permitted. Other than a vague proposal for the father to pay for the child to attend an international school, there was no detailed evidence about her educational opportunities, where the mother would realistically live, or her available employment opportunities. According to the mother, she will initially live with her parents in their town, City KK, which is over 100 km from the nearest city. Thereafter would depend on her employment opportunities, which on any view, may will be limited in the town where her parents live.
The mother’s (Amended) Minute of Final Orders at paragraph 45 (on the basis relocation is not permitted), proposes she be permitted to travel to Country D for no less than seven months, and during that time she will homeschool the child. That proposal raises concerns about whether the mother would enrol the child in school in Country D, or whether she would seek to homeschool her indefinitely.
Whilst the mother is enthusiastic about the prospects awaiting the child in Country D, the child was born in Australia, has lived here for all of her seven years, and has never been to Country D. Although she speaks Language EE, she will be unfamiliar with the country and removed from her current day-to-day life, her relationship with her father, paternal family and relocation would affect and dislocate almost every aspect of her daily life.
The child may be overwhelmed by the change in circumstances or indeed feel abandoned by her father, which may create significant emotional and psychological problems in the future. It is clear that the child, at seven years of age, would have no possible understanding of the implications which may flow from a relocation.
The child has not spent more than three consecutive nights with her father, and does not even spend a weekend with him, nor has she spent significant holiday time with him.
The mother’s initial proposal for the father to spend time with the child in Country D was restrictive and unrealistic. During her counsel’s final address, the mother’s proposal for the child to spend time with her father in Country D differed dramatically from her initial proposal and was contrary to her oral evidence during cross-examination about the restrictive nature of time between the child and father in Country D whereby the mother, at her sole discretion, would determine if time between the child and father should increase.
Another complicating factor is whether the mother would comply with any orders of this court if she were residing in Country D. I refer below to reciprocity, registration of orders of this court and enforcement.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that the difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
If the child remains in Melbourne, there are no practical difficulties or particular expense which would impact on the child spending time with her father. The mother currently lives in Suburb QQ, the father lives in Suburb BJ, and the child attends school in Suburb U. Although there is a reasonably long commute between the father’s home and AR School, the father is willing and able to continue to facilitate her attendance at that school.
To the contrary, there are significant practical difficulties for the child to spend time with her father if relocation is permitted.
Travel from Melbourne to Country D is time consuming and relatively expensive. In her material, the mother did not provide any estimate of the cost of air travel, nor how travel would be undertaken.

During cross-examination by counsel for the father, the mother agreed there were no direct flights from Australia to City KK. The only direct flights to that international airport were from neighbouring countries and Country EE.
If the father were to travel to City KK, he would need to catch a flight from Melbourne to a neighbouring country, and then from that country to City KK. The mother agreed the flight time would be at least 24 hours, and possibly 32 or 38 hours. Further, travel would be across several time zones as Country D is several hours behind Australia, and the travel would be difficult for the father because he has not previously travelled to Country D and does not speak Language EE. The smart traveller website recommends travellers exercise a high degree of caution.
The mother agreed with counsel for the father the cost of an airfare from Melbourne to Country D would be between $2,500 and $3,500, depending on whether the flight was direct or involved several stopovers. The cost of hiring a car for two weeks was more than $300 and there is also the cost of a visa for Country D. The mother proposed she would pay for the father’s travel every year, although there was no evidence of her future capacity to do so.
She also proposed the father stay in her parents’ home for up to two weeks. When it was suggested to the mother that the father may not feel comfortable staying in her parents’ home, particularly because of the arguments the maternal grandmother witnessed when she was in Australia shortly after the child’s birth, she said her parents “knew he was a father and knew not to mix things”.
Both the maternal grandparents proposed the father could stay with them in the family home, despite the paternal grandfather never having met the father. Annexed to the affidavit of the paternal grandfather were photographs of the family home and proposed accommodation for the father. Given the obvious animosity between the parents and the seven-year history of litigation, it is naïve in the extreme to expect the father would accept the offer for accommodation if he were to travel to Country D.
The mother accepted the cost of hotel accommodation in her town, for a double room comprising two single beds was $60, which would be approximately $840 per fortnight. She was unable to comment when it was put to her that the combined cost of hotels, cars, a visa and living expenses for a two-week visit would amount to around $2,000, if the mother paid for the father’s airfares. She did agree, if the father chose to travel more than once per annum, his travel and associated costs would be around $5,000 per trip.
The mother was also cross-examined about the cost of travel to Australia during January and February for two people. It was suggested to her that airfares would be around $6,000 with a flight time of around 72 hours. Despite her proposal that she and the child travel to Australia every two years, she had not made any enquiries other than a vague conversation with a travel agent. Counsel for the father suggested to her that the cost of accommodation for a double bed within a 7km radius of the city, as proposed by her, would be around $2,000.
Counsel for the father suggested that the estimated travel costs in a two-year period for the father, in accordance with the mother’s proposal would be between $13,000 and $15,000 (Exhibit F-1) and confirmed the mother was also seeking child support of $350 per week, ($18,200 per annum).
In addition to travel costs and child support, the mother also proposes that the child would either attend the AS School in Country D, with the father to pay the costs or alternatively have private English lessons also at the expense of the father. According to counsel for the father, the fees payable for the child to attend the AS School are $18,355 per annum and an additional initial fee of $4,856.
When it was put to the mother that the cost per annum for the father to maintain a relationship with the child for fourteen days travel to Country D was approximately $44,000 (travel and associated costs, child support and school fees at an International School) her response was that the father could talk to her every day via electronic means, and based on what the father was spending on the trial it won’t be a problem.
The mother was also cross-examined about her lack of evidence of job opportunities available to her and her resultant capacity to contribute towards the cost of the father’s travel, as proposed by her. The mother accepted the average wage in Country D is far less than the average wage in Australia. According to her, if she had difficulties obtaining employment she would have to live with her parents and the maternal grandfather had told her he would pay for the father’s airfares.
Counsel for the father submitted the current evidence about the mother’s financial circumstances was dire. The court could not conclude that should be financially able to meet the necessary expenses of the child or any accompanying person to Australia, or the father’s airfare to travel to Country D each year. The mother has been out of the workforce in Country D for several years and has not secured any definitive offer of employment. The absence of physical and financial support from her family has been notable during the proceedings and the court could not conclude the mother had any financial capacity to comply with her own proposals.
The grandfather was cross-examined about whether he would contribute to the father’s airfares, if his daughter was unable to meet the cost of same and his capacity to do so. His evidence was that he is currently working a few days a fortnight, however, due to the exchange rate it is difficult to provide any meaningful financial support to his daughter in Australia. Nevertheless, he maintained that he would be able to afford flights from Country D to Australia if there was an option to “pay in instalments”.
If the mother does not comply with her proposals for payment of travel expenses, if she is permitted to relocate, the entirety of travel costs will have to be borne by the father. There is no guarantee, other than the mother’s say so, that she would comply with orders for both contribution to travel costs and for the child to spend time with the father in Country D. If she did not comply, then the father would be faced with legal proceedings and costs in Country D to attempt to enforce the orders of this court. Whether he would even be successful is another issue which is referred to below.
Finally, as Country D is several hours behind Australia, the time difference between the two countries would make it difficult to find a convenient time for electronic communication between the child and the father.
The capacity of each of the child’s parents to provide for the child’s needs, including his emotional and intellectual needs
The mother is the primary carer of the child. She has a demonstrated capacity to meet the child’s physical needs and to some extent, her emotional and intellectual needs. The mother has many positive attributes in her parenting style and has clearly provided a stimulating environment for the child, including ensuring her proficiency in Language EE.
However, I share the father’s concerns about her capacity to meet the child’s emotional needs. Whilst she is without doubt a loving, caring, and devoted mother who at times she is overly protective and possessive. From her oral evidence it was apparent she considered any challenge to her decision-making to be a personal attack and the child’s relationship with her father needed to be on the mother’s terms. Her attitude towards the child has been evident from the mother’s separation anxiety around changeovers, with some historical changeovers lasting up to three hours, and the mother’s persistent checking up on the child at school in kindergarten.
In the past, the mother has obstructed the child attending kindergarten and refused to allow her attendance to increase to three days a week. In early 2022, the mother wrote to the kindergarten advising the child was not happy with the kindergarten program and the program was not meeting her current needs, prior to withdrawing her from kindergarten. The intervention of the court was required for the mother to ensure the child attended kindergarten and was also appropriately vaccinated. In December 2021, the father brought a further application to the court seeking to increase the child’s time at kindergarten to three days per week, because the mother did not agree she should attend kindergarten more than twice a week.
The mother was unable to view the child’s attendance at kindergarten as an ordinary and unremarkable progression through the mandated education system, which would promote her social and emotional development. Rather, she alleged the fathers’ actions in applying to the court for the child to attend kindergarten three days a week was “yet another example of the way that the father has sought to undermine my parental capacity, disregard my views, and dismiss my cultural choices, as if somehow, I am incapable of making decisions for and in [X’s] best interest”.[2] The mother’s resistance to the child’s enrolment and attendance at school is another example of her unorthodox, and challenging views about the child’s education.
[2] Affidavit of the mother filed 30 November 2023, page 19 [56].
Another dispute has arisen because of the child’s difficulties at school. The mother was cross-examined about the child’s conduct, as recorded in document subpoenaed from the school (Exhibit F-18). Her conduct included hitting others, throwing items, and other poor behaviour directed at teachers.
As a result of such ongoing behaviour, the school recommended the child would benefit from support with an internal school psychologist and speech therapy. The mother’s view is that the child leaving class to attend either psychological support or speech therapy would stigmatise her at school, and rather suggested the child should attend a Language EE speaking psychologist of her choosing. I refer to this issue further below. From the father’s perspective, he is accepting of the advice from the school and wants to immediately facilitate the assistance for the child, as recommended by the school.
The mother perceives the father’s attitude as yet another example of the father minimising and disregarding her role as the child’s mother.
In her affidavit in reply at paragraph 72, the mother describes the father wishing to avail the child of recommended school help in the following terms:
I am [the child’s] primary carer; however, I feel that this is yet another example of how my opinion is not valued. It is discarded and not important… The father relies on the viewpoint of others but not mine. I rely on my maternal instincts.
The mother’s attitude towards the father when he disagrees with her about significant long‑term issues is indicative of her diminished capacity to provide for the child’s needs, in particular emotional and intellectual needs. The disagreement about accepting the school’s recommendations has adversely impacted on the child’s emotional and psychological well‑being, because she has been left without any professional assistance.
As to the father’s capacity to provide for the child’s needs, he contends he is able to provide for the emotional, physical and financial needs of the child and relies upon the absence of concerns having been raised by child protection about the child in his care.
Throughout his evidence, the father gave thoughtful, considered and insightful answers in response to questions about the child’s needs and his communication with the mother.
The father submits, and I agree that in the event relocation is permitted, the mother’s capacity to provide for the emotional physical and financial needs of the child is unknown.
The maturity, sex lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant
There are no particular factors pertaining to the maturity, sex lifestyle and background of the child or either of the parents which have not otherwise been canvassed in these reasons.
If the child is an Aboriginal child or a Torres Strait Islander Child: the child’s right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents are dedicated to the child and have attempted to prioritise her in their lives since her birth. They have both demonstrated appropriate attitudes to responsibilities of parenting.
However, the mother’s proposal to relocate the child indicates she is seeking to prioritise her desire to move to Country D over the need for the child to have a relationship with each of her parents.
The father is cognisant of the difficult position the mother has found herself in for the past six years, resulting from her immigration status, her financial dependence on him, and her inability to travel to see her family in Country D. The mother’s criticism of the father’s lack of insight about her predicament is in my view, unwarranted. His opposition to relocation arises from a consideration of the child’s best interests.
Any family violence involving the child or a member of the child’s family and relevant inferences that can be drawn
Shortly after separation in 2017, the mother obtained an interim intervention order against the father, which was resolved by him providing an undertaking to the court. Since that time there have not been any further applications for intervention orders and there was no alleged risk of family violence. The Family Report does not identify any risks resulting from family violence to the child or to either of the parties.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
It is self-evident these proceedings need to conclude and enable each parent to get on with life. There is little benefit for the child if her parents are engaged in protracted litigation.
Any other fact or circumstance that the Court thinks is relevant
There are a number of other issues relevant to my determination which are the mother’s mental health, the mother’s immigration status, and the nature of the relationship between the mother and the maternal family.
First, I will consider the mother’s mental health. The mother contends the difficult situation she has found herself in for the past six years, describing herself as effectively being imprisoned in a strange country against her will, being unable to work and missing her family and home country, has had an adverse effect on her mental health, although not to the extent that she is incapable of being the primary carer of the child, irrespective of where the child lives.
During the mother’s cross-examination by counsel for the father, she agreed her previous psychologist, Ms E stated in her report of August 2018 that her symptoms of PTSD and depression had improved and diminished, she was functioning well in her studies and in her role as a mother, and that she was in good psychological condition to continue looking after her daughter. She agreed the opinion of her then treating psychologist was correct.
In response to the proposition that there was no evidence that she had not been well and able to function for the child, the mother’s response was that she was still standing up because of her hope to go home.
During cross-examination by counsel for both the father and the Independent Children’s Lawyer, it was evident the mother is distressed about her current circumstances, her current inability to live in her country of origin, her financial dependence on the father and inability to further her career and get on with her life. Despite those adversities, the mother has been a caring and competent parent to her daughter and there is no evidence that she will not continue to be so.
The maternal grandparents were cross-examined by counsel for the father about the mother’s mental resilience. Despite the maternal grandmother claiming to have a very close relationship with her daughter and speaking most days, her daughter did not discuss her friends or lack thereof in Melbourne, her visa status and advice from immigration lawyers, that she was seeing a psychologist in Melbourne, the involvement of child protection in 2021, disputes about the child attending kindergarten and school or that the mother was attempting to arrange a Language EE speaking psychologist for the child. The maternal grandmother agreed with counsel for the father that the mother would always be focused on the child’s well-being no matter what, and the mother’s mental health was now stable, despite what she had been through in the last seven years. She agreed that because she knew the mother was very independent, responsible, stable and child focused, her daughter’s mental health will continue to be stable no matter what, and if the mother was not permitted to relocate, she would do everything she possibly could to support her living in Australia, although it would be difficult.
The mother relied upon the evidence of her psychologist, Ms AY who prepared a letter about the mother, which is Annexure AY-2 to her affidavit filed 27 October 2023. Ms AY was cross‑examined by both counsel for the father and the Independent Children’s Lawyer.
At the commencement of cross-examination, Ms AY agreed with counsel for the father that the statements in paragraphs 8 and 9 of her affidavit relating to formalities and requirements of expert witnesses had not been complied with. Despite that, she agreed the only documents she had relied on to prepare her report were her clinical notes, which were based on what the mother had told her, which were “good enough”.
Ms AY commenced treating the mother in July 2023, and as at the date of her report, had seen the mother on fourteen occasions. She noted in her report that the mother arrived with a complaint of stress, low mood, anxiety, worry about her daughter and their future, and a past diagnosis of PTSD. Since October 2023, the mother had attended upon her for weekly sessions, which the father had paid.
Counsel for the father put to her that her clinical notes primarily focus on the mother’s assertions of the bad treatment of her and the child, her complaints about what the father had done, and her negative experiences of the father.
Ms AY was of the opinion that it would be very difficult for the mother if she were not permitted to relocate and that the stressful situation she had experienced for the past seven years would leave the mother “with much to deal with”.[3] Ms AY was clearly defensive and supportive of the mother’s position and based her evidence entirely on what the mother had reported to her.
[3] Transcript 21 December 2023, p. 24 line 19.
Ms AY agreed that during one session the mother told her her parenting of the child wasn’t being adversely affected by her current circumstances and that she was unable to say that her parenting capacity had been so affected.
Cross-examination by counsel for the Independent Children’s Lawyer focused on the mother’s lack of trust of the father and that she did not feel safe with the father emotionally and in one instance, physically.
During the interviews with the Family Report writer, neither parent identified mental health issues with the other parent.
When asked by me whether it was submitted the mother’s parenting capacity was so impaired by her alleged mental health issues, that the child should live with her father if relocation was not permitted, the mother’s counsel promptly rejected any such suggestion.

Counsel also submitted that there were many instances of goodwill both between the parents which had enabled a progression of time between the child and her father and that both parents were child focused. Despite that submission, counsel for the mother was unable to provide a specific example of when the mother had consented to an increase in the father’s time with the child, without litigation looming and influencing her decision.
Counsel submitted that the mother has complied with all orders to date, time has taken place in accordance with the orders and that the mother is not a negative gatekeeper of the paternal and child relationship. The mother has raised the child to be well-balanced and developed, as identified by the Family Report writer, and has attempted to shield the child from the parental conflict and litigation. She has done so in the context of managing her own emotions, her life being on hold pending the outcome of the litigation, and without the father properly recognising the importance of the mother’s connection with her maternal family.
The mothers counsel submitted that her past actions do not indicate she is unlikely to comply with any orders if she is permitted to relocate to Country D, although he was unable to provide any specific evidence to support that submission.
The benefits to the child if she is permitted to relocate would arise from the mother’s improved mental health, career prospects and the added support from the maternal family. According to counsel for the mother, those benefits are greater than the loss of her face-to-face relationship with the father.
I have carefully considered all the relevant statutory factors, the evidence of all witnesses, the mother’s right to freedom of movement and the submissions of all three counsel and I am of the view that orders which accommodate the strongest possibility of the child maintaining a relationship and developing and consolidating her future relationship with both parents is the forefront of my consideration. I simply cannot be satisfied that such a relationship for the child will occur should the child be permitted to relocate to Country D.
I agree with and adopt the submissions of both counsel for the Independent Children’s Lawyer and the father and reject the submissions of counsel for the mother that she will actively encourage the relationship between the child and the father and will comply with orders of this court in Country D. The overwhelming evidence during the trial is that she will do the exact opposite. I too share the concerns about the mother’s minimisation of the father’s relationship with the child, the lack of parental trust, the mother’s lack of transparency and willingness to progress the child’s relationship with her father, the lack of enforceability of orders of this court in Country D, the capacity to change the orders of this court in Country D if the mother were so inclined and the practical difficulties and expense of travel between Australia and Country D.
Although the mother will be greatly disappointed by the outcome of this proceeding, I am confident that she is an intelligent woman who has now lived in Victoria for seven years and will remain a competent and loving parent to the child. The child’s life will be enriched as her relationship with her father improves because of regular time between them. I accept the mother may will have adjustment difficulties if she is required to stay in Victoria, but those difficulties will not be of such a magnitude that she will be unable to appropriately parent her daughter in a loving and competent manner, as she has previously done. She will be able to avail herself of the assistance of her psychologist, at least in the interim whilst the father will continue to pay her fees.
I am also confident the mother’s contributory visa will be forthcoming in the timeframe referred to by the immigration lawyers, or indeed earlier if the foreshadowed application is made, and once that occurs the mother may either embrace further tertiary study or will do her best to obtain employment and secure her financial independence. She is clearly resourceful and has managed to cope with her life in Australia, despite her desire to live elsewhere in what she perceives as adverse factors in her life. It is obvious she has developed a social network of friends and acquaintances and there is no reason to doubt that will not continue.
I am not convinced by the evidence of the maternal family that they are unable or unwilling to travel to Australia and view their evidence as a misguided attempt to “shore up” the mother’s application for relocation to Country D. It may be that one or more family members now decide to travel to Australia to aid and support to the mother.
As the child grows older and will spend more time with her father, I anticipate the mother’s confidence in the father’s capacity to care for the child may improve. The child will also be spending longer periods of time with the father and the mother would be able to travel to Country D, if she so wished. I have no doubt the father would be amenable to the child spending extended time with him during term and long summer holidays, which would provide the mother an opportunity to travel.
Consequently, and on a finely balanced consideration of all the factors referred to in these reasons, including the mother’s freedom of movement, against a background of the child’s best interests, I am persuaded those interests are best served by the child remaining in Victoria, living primarily with the mother, and spending significant and substantial time with her father.
PARENTAL RESPONSIBILITY
If relocation is refused, although the mother does not specifically say so, I can infer from paragraph 1 of her (Amended) Minute of Proposed Orders, that she seeks an order for equal shared parental responsibility. Despite that proposal, throughout the trial the mother contended the father is controlling and does not respect her opinions.
The father seeks an order for equal shared parental responsibility, both in the event of relocation and the child remaining in Australia. He submits the presumption under s 61DA of the Act has not been rebutted, and it is otherwise in the child’s best interests for her parents to have equal shared parental responsibility.
According to the father, the parents can and do communicate effectively, although they often do not agree about major long-term issues. The lack of agreement should not exclude the father from participating in the decision-making process.
The parents have been engaged in protracted litigation since the child was a few weeks old. It is anticipated the resolution of the dispute about the child’s relocation will alleviate some of the previous parental tension and conflict and enable them to improve their co-parental relationship.
The father is critical of some of the mother’s past decision-making, which he says has been problematic and not in the best interests of the child. He has had to frequently resort to judicial determination about long term issues including:
(a)the mother’s refusal to enrol the child in kindergarten, which the father submits has hindered her emotional and social development and has led to school behavioural issues, which are referred to below;
(b)the mother’s refusal to enrol the child in school when she was the appropriate age, and rather sought to homeschool the child notwithstanding the mother had not complied with legal requirements to do so and her assertion that she is not fully proficient in English;
(c)the mother’s failure to inform the father of her intention to homeschool the child until the issue of schooling was before the court;
(d)the mother’s refusal to cooperate with the school and the father to arrange for the child to attend a school-based counsellor and speech therapist, with her preference being to engage an external bilingual psychologist;
(e)the mother unilaterally engaging a psychologist in Country D in 2021 and facilitating at least 12 sessions between the child and the psychologist, without the father’s knowledge or consent; and
(f)the mother’s refusal to have the child vaccinated against Covid-19 at the height of the Covid-19 pandemic.
Absent an order for equal shared parental responsibility, the father is concerned the mother will not consult or inform him about the child’s health, education, and welfare particularly after these proceedings conclude and the mother is no longer subject to court scrutiny.
I agree it is appropriate for both parents to have equal shared parental responsibility irrespective of where the child will live. Although there have been problems in the past reaching agreement, both parents have expressed some limited optimism about their capacity to improve their coparenting relationship in the future, which will undoubtedly improve the decision-making process, as will the conclusion of the parenting litigation.
It is a serious matter to remove a parent from long-term decision-making in a child’s life, and I agree with the submissions of the husband’s counsel, the presumption of equal shared parental responsibility has not been rebutted. It is also self-evidently in the child’s best interests for two committed parents, with whom the child will spend significant periods of time if she remains in Melbourne, to be jointly involved in decisions about long-term issues for the child.
I intend to make an order for equal shared parental responsibility. I will now address the statutory pathway under s 65DAA of the Act.
Section 65DAA considerations
The mother seeks orders for the child to live primarily with her and spend substantial time with the father. The father seeks similar orders, albeit a different configuration of time and an additional night, prior to January 2025, when he seeks orders for the child to spend equal time with each parent on a week about basis.
I consider below whether the child spending equal time with both parents is in the child’s bests interests and reasonably practical.
I note that both parents seek orders for the child to initially reside with the mother, and to spend substantial and significant time with her father .Therefore I am entitled to infer, if I decline to order equal time after January 2025, it is in the child’s best interests to spend substantial and significant time with her father, and that there is no practical impediment to her doing so.
WHAT ORDERS ARE APPROPRIATE FOR THE CHILD’S TIME WITH THE FATHER?
I will now turn to the respective proposals of the parties predicated upon the child remaining in Melbourne and there being an order for equal shared parental responsibility.
The mother’s (Amended) Minute of Orders sets out her proposals for the child’s care arrangements if relocation is not permitted. She seeks an order that the child live with her, and the father spend time and communicate with the child during school term in week one from Monday 3.30 pm to Tuesday 9.00 am, and in week two from Saturday 7.00 pm to Tuesday 9.00 am and Thursday 3.30 pm to Friday 9.00 am. She also proposes that the child spend time with the father during school term holidays in week one from Saturday 7.00 pm until Wednesday 7.00 pm and in week two Monday 9.00 am until Thursday 9.00 am. She proposes there be no time between the child and the father during the long summer vacations because the child should be permitted to travel to Country D with her.
In his Final Minute of Orders, the father proposes the child initially live with the mother and spend time with him for six nights each fortnight, on days as agreed between them, or failing agreement from the conclusion of school on Thursday until the commencement of school on Monday and in week two, from the conclusion of school on Wednesday until the commencement of school on Friday. He further proposes that as of 29 January 2025, the child live with each parent equally on a week about basis. He proposes the child spend one half of the school term holidays with each parent, alternating the first and second half of the holidays. For the long summer holidays, he proposes week about with the mother to have the first week in the 2023/24 holidays and the father to have the first week in the 2024/ 2025 holidays. The father proposes the child spend Christmas Day with him each year from 3.00 pm Christmas Eve until 5.00 pm on Boxing Day, at Easter from 5.00 pm on the Thursday immediately before Good Friday until 5.00 pm on the Monday immediately following Easter Sunday and that she spends time with each parent on Mother’s Day and Father’s Day from 3.30 pm on the Friday prior until the commencement of school on the following Monday.
The Independent Children’s Lawyer proposes the child live with the mother and spend time with the father during term time on each alternative weekend from Friday afternoon until the following Monday morning, and each alternate Thursday afternoon until Friday morning. He further proposed that during school term holidays, for the first six months following the making of orders, the child spend time with the father for a period of five nights following school break up and thereafter six nights following school break up. There was no specific proposal for long summer holidays.
The Family Report writer recommended in her report that the child live with her mother and spend time with her father during term time from Friday to Sunday in week one and Monday to Tuesday in week two. She recommended during school holidays the time could be increased to Monday to Wednesday in week two, which is an additional night to term time. She did not recommend any specific time for the long summer holidays.
Counsel for the father and counsel for the Independent Children’s Lawyer extensively cross‑examined the Family Report writer, Ms AX, including about the selective information she had relied upon in reaching her conclusions.
Ms AX agreed with counsel for the Independent Children’s Lawyer that the litigation history between the parents suggest they are unable to cooperate, which impacted all aspects of their parenting, and there appears to be no trust between them. The father does not trust the mother to comply with orders if the child were living in Country D, and the mother does not trust the father’s care of the child for any length of time unless she is in close proximity.
Ms AX agreed that given the child’s age, she would be able to tolerate an alternative weekend arrangement and that she had no objection to the child spending alternative weekends with the father and either one or two nights in the alternative week. She did not have any objection to the child spending a week block during school holidays with the father and that the arrangements suggested by counsel, were not unusual for a seven-year-old child. Ms AX said there might be an adjustment period for the mother to manage the new arrangements and that an increase could be gradual. She did not observe anything which would indicate the child was not safe in the father’s care. As to the suggestion that the mother could travel to Country D and leave the child with the father, with regular electronic communication between the mother and child during her absence, she considered the mother had a lot of sadness and anxiety around the child in the father’s care, and agreed that it was necessary to break the mother’s cycle of anxiety so that the parents could progress and the mother could acknowledge the child was not at risk in the father’s care.
Counsel for the father vigorously cross-examined the Family Report writer, including about her prior experience with international relocation reports, which was none. She agreed she had incorrectly included reference to the Hague Convention in her report, and it was not her view to express a preference about the outcome or how to apply the law. She also agreed that she had selectively chosen to read certain historical documents and omitted to read other relevant documentation, including the parties trial affidavits, and did not speak to the mother’s treating psychologist. She agreed the information relied upon by her was limited by the truth of the parties. She was unaware that the mother’s visa, which she referred to in paragraph 2 of her report, was likely to be granted at the end of 2024 or 2025, whereas she had previously thought it would take another five years from mid-2023. She agreed that the process to expedite the visa, which she did not know about, could affect her assessment.
Counsel for the father cross-examined Ms AX about her perception that the mother was positive about the father’s relationship with the child and put to her a history of the mother’s reluctance to progress the father’s time with the child. She agreed that none of the mother’s actions were indicative of positive support of the relationship. She also agreed she had not addressed in the Family Report the impact on the child if relocation were permitted, a video screen was nothing like day-to-day care provided by a parent, and at seven years of age the child could not have any understanding of what life would be like in Country D nor what it would be like to not see her father on a regular basis .
Her criticism of the father at paragraph 40 of the report, that he did not display enough goodwill towards the mother, was made without understanding the context of the mother’s attitude towards the father. She did not know the mother’s trial affidavit accused the father of being a bully, liar, and engaging in deceitful and manipulative conduct, and she was unaware that the mother believed the father had indirectly or directly harmed the child. She agreed there was not a lot of goodwill flowing from the mother to the father, and for an arrangement in Country D to work the father would need to be confident that the mother would comply with orders in Country D. Ms AX also agreed that the mother’s suggestion that the two parents and the child go to Country D and “play happy families together” surrounded by her Country EE relatives was unrealistic. She agreed her Family Report primarily identified considerations in the mother’s case and did not address the significant impact on the child of the loss of her father.
Ms AX said she did not mean for a reduction of time in her recommendations, and it would not be unreasonable for the child to spend more time with her father. She agreed the child’s separation anxiety needs to be dealt with, and not encouraged, because it doesn’t help the child’s development and growth. She also agreed that longer blocks would allow the child to settle into the father’s care and develop a relationship with him.
She agreed a regime of Thursday to Monday in week 1 and Wednesday to Friday in week 2 would be appropriate, because it maintained the child’s primary residence and enabled her to settle into a routine. Whether that time should progress to equal care would depend on the parent’s ability to cooperate and make decisions together.
Counsel for the mother did not attempt to cross-examine the Family Report writer about her agreement with the proposal put to her by counsel for the father. His cross-examination was directed towards the issue of relocation, and the possible affect on the mother if she were not permitted to move the child to Country D. Ms AX agreed the mother would be terribly upset and it would cause a “debilitating state of mind” but said it would not impact her parental capacity.
Taking into consideration all of the relevant statutory considerations, the evidence of all relevant witnesses and the concessions of the Family Report writer, I conclude the child’s best interests will be served if she continues to live primarily with her mother and spend five nights per fortnight with her father, in a configuration as proposed by the father, with an additional night as from the commencement of 2025. I do not think a progression to equal time is in the child’s best interests because of the uncertainty of the parental relationship, the current limited capacity to communicate, and because the child has lived in the primary care of her mother since birth, although I consider there is no practical impediment to equal time. The orders which I intend to make will ensure the child spends weekend time with her father and he can continue participate in her day-to-day care, as he has done. The proposed arrangements for the child are self-evidently reasonably practicable, despite the geography of the where the parents live, as five nights a fortnight has been in place since January 2022.
CONSIDERATION OF ANCILLARY ORDERS SOUGHT BY BOTH PARTIES

Both parties sought a raft of ancillary orders, which I now turn to consider.
Child support and other financial matters
In her final proposal the mother sought an increase of the father’s payments to her by a sum of $255 per week, reasonable medical expenses, and her out-of-pocket expenses to attend upon her psychologist regularly or as recommended by the mother’s psychologist.
As discussed with both counsel for the mother and father at the commencement of proceedings, the application before the court was the parenting orders pertaining to the child, including an application to relocate the child’s residence to Country D. The court would not be entertaining any financial orders and the trial proceeded along those parameters.
Early in the proceedings, the Hon. Justice Bennett made an order bifurcating the financial aspect of the parental dispute. I do not propose to consider, and indeed there was no evidence to support the various applications for increase in payments and the costs to repair the mother’s motor vehicle car. I intend to immediately refer the property and financial proceedings to another judge, whereupon it should be listed for case management and allocation of the trial date.
After the matter has been transferred to another judicial docket, the parties are at liberty to make proper interlocutory applications relating to financial matters, supported by relevant evidence.
I do not propose to revisit the financial arrangements in place between the parties, nor entertain orders for the cost of the maternal family to travel to Australia as sought by the mother, despite her evidence of the inability of each of the maternal family to travel to Australia. I will also not entertain orders for the father to pay the cost of the mother furthering her tertiary education. All those matters will be determined by way of interlocutory applications in the course of the financial trial, or during the final hearing of the respective financial applications. I do not propose to discharge the existing orders providing for the support of the mother and child.
International Travel
If relocation is not permitted, the mother seeks orders to permit the child to travel to Country D with her each year, commencing 30 days after the delivery of the orders and thereafter during the long summer holidays for no less than four consecutive weeks. She also seeks orders permitting her to travel to Country D with the child for no less than seven months (one month for each year they were not permitted to visit Country D since X’s birth) and to homeschool the child in Country D during the seven-month visit.
The father seeks orders that the child be placed on the airport watchlist until 2034, when the child turns 18. Notwithstanding that order, he proposes orders to enable international travel if both parties agree in writing. He initially sought the child’s name be placed on the watchlist for a period of five years because he thought that the parental relationship would improve after the conclusion of litigation and there was a possibility the parents may come to trust each other by the expiration of that period. However, after hearing the second tranche of cross‑examination of the mother, and the mother’s (Amended) Minute of Proposed Orders, he changed his position.
Counsel for the Independent Children’s Lawyer cross-examined the father about why he proposed a five-year watchlist order, rather than a permanent prohibition on international travel for the child. The father provided direct and logical answers. In his final submissions, Counsel for the Independent Children’s Lawyer said it is possible the passage of time might ameliorate in some way the attitude of the parties towards the need for an airport watchlist order. Whilst counsel the Independent Children’s Lawyer was reluctant to suggest a certain age in which the airport watchlist order should apply, he did suggest that there be liberty to apply regarding this issue once the child reaches a certain age if any fresh circumstances arise.
I do not have any confidence if the mother were permitted to take the child to Country D, or indeed anywhere internationally, she would return the child to Australia. I make that observation for the following reasons:
·the mother’s dislike of and attitude towards living in Australia, as was obvious from her answers during cross-examination;
·the lack of candour and transparency about many issues, including the real reason why she does not want the child to have weekend time with her father;
·her disdain and dislike for the father, which is evident from the negativity in her affidavit, the manner in which she describes the father and her preparedness to accept the child’s untruthful comments about the father, including the bruising which resulted in a visit to the AD Hospital;
·her lack of sincerity about promoting the father and child relationship, which was evident from her initial restrictive proposals for the father to spend time with the child in Country D, and her “gatekeeping” of the child’s relationship with her father;
·her attitude in prioritising the child’s Country D heritage to the detriment of her Australian heritage, including obtaining a Country D birth certificate for the child without the father’s knowledge or consent;
·the mother’s refusal to engage in the process to accelerate her visa to enable her to work in Australia and become financially independent;
·the difficulties of enforcement of orders of this court in the Country D courts in accordance with the evidence of Mr XX, who was not challenged by the mother;
·the difficulties of pursuing an application in Country D under the 1980 Hague Convention and the slim prospects of success in the event the child was permitted to travel to Country D, in accordance with the evidence of Mr XX, who was not challenged by the mother;
If the child travels to Country D, I also have little confidence that the mother would encourage her to have electronic contact with her father. The mother’s proposal to remove the child from spending time with her father for a period of seven months is demonstrative of her lack of insight into the effect of separating the child from her father for such a long time, when he is an important figure in her life.
I propose to make orders as sought by the father and place the child on the airport watchlist until she is 18 years of age. I am cognisant this is a restrictive order, but in the circumstances of this case, it is warranted. If for some reason the parental relationship and trust is rebuilt, then the orders which I also propose to make providing for the terms of international travel as agreed between the parties, will enable some flexibility and framework for the parents, if the father later decides to provide his consent for the child to travel to Country D.
Passports
The mother’s (Amended) Minute of Proposed Orders seek that she have possession of the child’s Australian, Country D and Country LL passport’s, for use by the child as and when required and that she be entitled to apply, presumably without the consent of the father, to renew each of those passports. She also seeks orders restraining the father from applying for a Country P passport for the child without her prior written consent, despite there being no evidence about this issue.
The father seeks orders for the mother to deliver the child’s Australian passport to the court for safekeeping, each parent to all things necessary to ensure the child has a valid passport including Australian and Country D passports, and he hold the child’s Country D passport or alternatively, the passport be held by the court for safekeeping.
I propose to make orders for both of the child’s passports to be held by the court for safekeeping, including any passports subsequently renewed by agreement between the parents. The passports shall not be released to either parent, without the joint written consent of the parties.
It is appropriate for both parties that the passports are held by the court, which will be perceived as neutral and will further ensure neither party is able to travel internationally.
The father also seeks an order restraining the mother from applying for a Country LL passport for the child. I’m inclined to make such an order, in the absence of evidence about whether both parents are required to provide consent to the issue of a Country LL passport. If in the future the parties reach agreement about application for a Country LL passport for the child, then that passport should also be held by the court registry.
Change of school
The mother seeks orders that the child be enrolled in either of two primary schools in 2024, or a school in the catchment area if the mother and child change their current catchment area.
The father seeks an order that the child remain at AR School, unless both parties agree. It is obvious from the AR School records (Exhibits F-18 to F-26) that the child has had considerable difficulties in adjusting to school life. The school records indicate that she is now settling, and her behavioural issues appear to be resolving. As referred to above, the mother considers the child requires stability and routine. The mother did not adduce any evidence about the respective advantages of the child being enrolled in either of the two schools nominated by her, nor why they were more suitable for the child and her current school, or that she would not be living in the current catchment zone in the immediate future. I do not propose to make orders providing for a change of the child’s school in a vacuum of evidence and will make orders as sought by the father. I also consider the ancillary school orders sought by the father to be entirely appropriate and will make orders in accordance with proposed orders 13, 14, 15 and 16 of the father’s final Minute.
School psychologist and speech therapist
There was some evidence pertaining to the dispute between the parents about whether the child should receive assistance from the school psychologist and speech therapist, or whether she should engage with a Language EE speaking psychologist as sought by the mother.
The school records (Exhibits F-18 to F-26) demonstrate the necessity for the child to receive professional assistance for the difficulties she has experienced at school, including her own emotional dysregulation and conduct. To address these issues, the school has proposed that the child receive assistance from a school counsellor and speech therapist, in accordance with a behavioural plan developed by the school and to arrange for her to undergo a student assessment.
The father has provided his consent to the school for this assistance to commence forthwith, however, the mother has resisted as she considers the child will be stigmatised because she would have to leave class to obtain this specialist assistance. She proposes the child receive assistance from a Language EE speaking psychologist.
Because of the stalemate between the parents, the child has not received any expert assistance, despite the behavioural problems being identified during the 2023 school year.
The mother did not adduce any evidence about how her proposed experts were qualified to address the child’s particular problems, as identified by the school, nor the cost of such external assistance or it would be available. From my perspective, the child requires the suggested assistance as soon as possible, and I intend to make orders in accordance with the father’s proposal for the child to engage with the school counsellor and speech therapist.
Mechanical orders
In the fathers final proposed Minute, he sought orders under the heading “Medical” for each parent to notify the other of any serious injury, illness or medical emergency affecting the child whilst in their respective care and provide to the other parent or relevant treatment information. There was no specific objection to that order by counsel for the mother and I consider it an appropriate and necessary order in the best interests of the child, for obvious reasons.
The father also proposed various orders under the heading “Communication”, which again were not the subject of objection from counsel for the mother. The proposed orders provide for each party to keep the other appraised of the residential address and any change thereto, FaceTime calls between the child and the other parent at all reasonable times should the child express a wish to do so with a time limit of 15 minutes, specific Sunday telephone or FaceTime communication, and that otherwise the parties be at liberty to communicate with each other by text messages or such other digital messaging service as agreed, to discuss parenting matters.
In her (Amended) Proposed Minute of Orders, the mother did not seek any such orders, and in particular no specific orders for electronic communication between the child and the parents, which occupied much focus of the trial. I consider it entirely reasonable, and in the child’s best interests that she be permitted to contact the other parent, with a time limitation because of problems which have arisen in the past, and that Sunday electronic communication be specified. In the exercise of their equal shared parental responsibility, the parents clearly need to know any change of the residential address of the other parent and should be at liberty to communicate electronically to discuss parenting matters.
I propose to make orders as sought by the father under the headings “Medical” and “Communication”.
For these reasons, I make the orders set out at the commencement of these reasons.

I certify that the preceding three hundred and two (302) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 6 May 2024

File number(s):	MLC 2872 of 2017
Judgment of:	WILLIAMS J
Date of judgment:	6 May 2024
Catchwords:	FAMILY LAW – RELOCATION – Remittal for rehearing of the mother’s application to relocate to Country D – Where the mother seeks to return to her country of origin, but the father maintains it is the child’s best interest to remain in Australia – Where the mother is currently entirely dependent on the father for financial support – Where the court is satisfied it is in the child’s best interest to refuse the relocation application – Orders that the parents have equal shared parental responsibility of the child and the child spends significant and substantial time with the father
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CB, 60CC, 60CD, 60CE, 60CF, 60CG, 61DA, 65DAA, 67ZC
Cases cited:	AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 Re Andrew (1996) FLC 92-692; [1996] FamCA 43 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Taylor & Barker (2007) 37 Fam LR 461; [2007] FamCA 1246 U v U (2002) FLC 93-112; [2002] HCA 36 Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	302
Date of hearing:	6-8, 20-21 December 2023 and 5-8, 21-22 February 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Whitchurch
Solicitor for the Applicant:	Macgregor Solicitors
Counsel for the Respondent:	Ms Swann
Solicitor for the Respondent:	Lander & Rogers
Counsel for the Independent Children's Lawyer:	Mr Eidelson
Solicitor for the Independent Children's Lawyer:	Southern Family Law

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:	WILLIAMS J
DATE OF ORDER:	6 MAY 2024

Exhibit Number	Description
M-1	Bundle of financial documents produced by father in response to a call.
M-2	Proposed Binding Financial Agreement prepared in 2016.
F-1	Estimated travel costs to Country D included in father’s tender bundle.
F-2	Estimated travel costs to Melbourne included in father’s tender bundle.
F-3	Case plan.
F-4	Risk assessment, dated December 2021.
F-5	Case planning meeting record, dated November 2021.
F-6	Case notes: discussion with mother dated December 2021.
F-7	Case notes: email to mother and father regarding Language EE speaking psychologists dated November 2021.
F-8	Case notes: call from MCHN, Ms BA, dated October 2021.
F-9	Case notes: email from the father, dated October 2021.
F-10	Case notes: internal re kindergarten and changeover, dated October 2021.
F-11	Case notes and photo of bruising, dated October 2021 (p 54-55).
F-12	Case notes and photo of bruising, dated October 2021 (p 56-57).
F-13	Adult Intermediate Risk Assessment Tool, dated October 2021.
F-14	First visit case notes, dated October 2021.
F-15	Investigation plan, dated October 2021.
F-16	Intake record, dated October 2021.
F-17	Transition learning and development statement, dated November 2022.
F-18	Student chronicle, dated February 2023 to October 2023.
F-19	Notes from meeting with parents
F-20	Transcript of text messages between Mr BC and the parents, dated February 2023 to October 2023.
F-21	Request for guidance officer/psychological involvement – father’s consent, dated May 2023.
F-22	Email from mother to school, dated June 2023.
F-23	Email from father to Mr BD (Principal), dated July 2023.
F-24	Email exchange between Mr BD and the mother, dated July 2023.
F-25	Email exchange between the mother and Mr BD, dated July 2023 to August 2023.
F-26	Email from Ms BE to Mr BC and Ms BF, dated September 2023.
F-27	UU Lawyers file note: call between Ms BG and the mother, dated November 2021.
F-28	UU Lawyers letter to onshore visitor visa processing, dated December 2022.
F-29	UU Lawyers file note: call between Ms BH and the mother, dated July 2023.
F-30	Child support assessment, dated August 2023.
F-31	Letter from Macgregor Solicitors to Lander & Rogers with enclosed passport application (pursuant to call for documents during trial), dated November 2023.
F-32	Text messages between mother and father regarding car breakdown, dated December 2023.
F-33	Text messages between mother and father, dated December 2023.
F-34	Text messages from mother to father (being clear copies of RF-10 of Father's Trial Affidavit), dated July 2023.
F-35	File note of Ms AY, dated July 2023.
F-36	File note of Ms AY, dated July 2023.
F-37	File note of Ms AY, dated August 2023.
F-38	File note of Ms AY, dated August 2023.
F-39	File note of Ms AY, dated August 2023.
F-40	File note of Ms AY, dated September 2023.
F-41	File note of Ms AY, dated September 2023.
F-42	Text messages from mother to father about religious reference and screenshot of father’s mobile phone showing WhatsApp profile of mobile number of mother.