Blackmore & Roth - [2022] FedCFamC1F 704

Federal Circuit and Family Court of Australia
(DIVISION 1)
Blackmore & Roth [2022] FedCFamC1F 704

File number(s): SYC 4122 of 2020

Judgment of: SCHONELL J

Date of judgment: 16 September 2022

Catchwords: FAMILY LAW – PARENTING – Relocation – Where the mother sought to permanently move to the United Kingdom with the child – Where the father opposed the relocation to the United Kingdom – Where the mother’s desire to relocate to the United Kingdom is bona fide – Consideration of s 60CC primary and additional considerations – Where the Court is satisfied that the mother’s proposal ensures that the child is able to maintain a meaningful relationship with the father and that she is supportive of the child’s relationship with the father – Orders made permitting the mother to relocate with the child to the United Kingdom.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA

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

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

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

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

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

Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76

Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152

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

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

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

Division: Division 1 First Instance

Number of paragraphs: 161

Date of hearing: 1, 2 and 5 September 2022

Place: Sydney

Counsel for the Applicant: Mr Levick

Solicitor for the Applicant: Uther Webster & Evans

Counsel for the Respondent: Mr Dura

Solicitor for the Respondent: Horton Rhodes Legal

Counsel for the Independent Children's Lawyer: Mr Lawrence

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

SYC 4122 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BLACKMORE

Applicant

AND:
MS ROTH

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

16 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The parents have equal shared parental responsibility for X born 2015 except with regard to X’s education.
3.Subject to these orders, the mother shall have sole parental responsibility for X’s education.
4.X shall live with the mother in London, United Kingdom.
5.The mother shall be permitted to relocate the primary residence of X to Britain in the United Kingdom
6.X shall attend D School at Suburb E (“D School”) in London (United Kingdom) for her primary school education and the parents shall do all things and sign all documents necessary for X to attend D School.
7.With regard to the selection of X’s secondary school, in the exercise of her parental responsibility for education, the mother:
7.1.Shall provide the father with notice of the school in which she intends to enrol X not less than four months prior to the date of enrolment; and
7.2.Shall take the father’s views of the proposed school into consideration.

8.The parents shall do all things and sign all documents necessary for X to attend the secondary school selected by the mother pursuant to Order 7.
9.It is noted that the mother shall pay for all fees and associated education costs for X’s primary education at D School and for X’s secondary education.
10.It is noted that:
10.1.The school year for Britain in the United Kingdom runs from September in any calendar year to mid-July in the following calendar year; and
10.2.The school year for Britain in the United Kingdom comprises three school terms as follows:
10.2.1.Autumn Term, the first term of the school year, which runs from early September to late December each year (shortly before Christmas) with a 5-day “half term” break in about late October;
10.2.2.Spring Term, the second term of the school year, which runs from early January to the end of March each year with a 5-day “half term” break in about mid-February; and
10.2.3.Summer Term, the final term of the school year, which runs from late April to mid-July each year with a 5-day “half term” break at about the end of May to the beginning of June.

11.The mother shall cause X to travel to and arrive in Sydney by no later than 22 December 2022 and for the purpose of this Order:
11.1.The mother shall do all things necessary to ensure that X travels to and arrives in Sydney by no later than 22 December 2022;
11.2.The mother shall pay for X’s return airfare between London and Sydney; and
11.3.X shall spend time with the father in Sydney from 22 December 2022 until midday on 2 January 2023.

12.X shall return to school at D School for the Spring school term on Thursday, 5 January 2023 and for the purpose of this Order it is noted that the Spring school term runs from 5 January 2023 to 30 March 2023.
13.The father shall be at liberty to spend time with X in London for the first 14 nights of the United Kingdom Easter school break between 31 March 2023 and 19 April 2023, and for the purpose of this Order:
13.1.The father shall provide the mother with no less than 84 days notice of his intention to travel to London and his intention to spend time with X inclusive of his intended dates of travel and intended date of commencement of his parenting time.

14.The father is at liberty to spend time with X in London from 12 August 2023 to 12 September 2023, and:
14.1.The father shall provide the mother with no less than 84 days notice of his intention to travel to London and his intention to spend time with X inclusive of his intended dates of travel and intended date of commencement of his parenting time.

15.In the event that the father travels to London during the school term, except where otherwise provided for in these Orders:
15.1.The father shall provide the mother with no less than 84 days notice of his intention to travel to London and his intention to spend time with X inclusive of his intended dates of travel and intended date of commencement of his parenting time; and
15.2.The dates and times that X shall spend with the father shall be agreed in writing between the parents, and failing agreement the father shall be at liberty to spend time with X including overnight time for a period of two weeks provided that he ensures that any school commitments for X are met.

16.The father shall spend time with X:
16.1.In Sydney, each year commencing 2023, during the entire United Kingdom Winter school holidays which run from about late December to early January (inclusive of the Christmas festive period), and:
16.1.1.The mother shall do all things necessary to book and pay for X’s return flights between London and Sydney; and
16.1.2.The mother shall provide the father with no less than 84 days written notice of the dates X shall be in Sydney.

16.2.In London, each year commencing 2024, during the entire United Kingdom Spring school holidays which run from about the end of March to late April (inclusive of the Easter festive period), and:
16.2.1.The father shall provide the mother with no less than 84 days notice of his intention to travel to London and his intention to spend time with X inclusive of his intended dates of travel and intended date of commencement of his parenting time; and
16.2.2.Unless otherwise agreed in writing, in 2024 and even ended years, X’s time with the father shall be suspended from 3.00 pm on Easter Saturday until 3.00 pm on Easter Sunday; and in 2025 and each odd ended year thereafter, X’s time with the father shall be suspended from 3.00 pm on Easter Sunday until 3.00 pm on Easter Sunday.

16.3.In London or Sydney, during the United Kingdom Summer school holidays which run from about mid-July to early September, from 10 August to 10 September, and:
16.3.1.The father shall provide the mother with no less than 84 days notice of his intention to spend time with X inclusive of his intended dates of travel and intended date of commencement of his parenting time; and
16.3.2.The mother shall do all things necessary to book and pay for X’s return flights between London and Sydney if time is to be spent in Sydney if time is to be spent in Sydney.

17.In the event that the father travels to London to spend time with X during the United Kingdom Summer school holidays in 2023, 2025, 2027 and 2029, the mother shall contribute the amount of AUD $1,500 towards the costs of the father’s return airfare between Sydney and London.
18.The mother’s contribution of AUD $1,500 towards the costs of the father’s return airfare between Sydney and London pursuant to Order 17 shall be on the condition that the father provide written notice to the mother of his intention to travel to London, inclusive of the date of his intended arrival into London, no less than 84 days’ prior to the father’s intended date of arrival into London.
19.In the event that the father fails to provide written notice to the mother pursuant to Order 18, the mother will not be required to pay any funds towards the father’s flights.
20.Subject to the father providing written notice to the mother pursuant to Order 18, the mother shall provide the father with AUD $1,500 by bank transfer to the father’s nominated bank account no less than 28 days’ prior to the date of the father’s intended arrival date into London.
21.If the father does not undertake the travel, the father shall reimburse the mother any funds paid to him within 7 days of the date of the father’s intended arrival into London as notified to the mother pursuant to Order 18.
22.When the father is spending time with X in London, he will provide the mother with details of where he shall be residing, and, in the event that he travels internationally with X during this time, he shall provide the mother with return travel documents no less than 48 hours prior to X’s departure.
23.The parents shall do all things and sign all documents necessary for X to travel as an unaccompanied minor as follows unless otherwise agreed between the parents in writing:
23.1.On international flights from age 12 years; and
23.2.On Australian domestic flights from age 10 years.

24.The parents shall do all things and sign all documents necessary to apply for and thereafter keep current a passport for X from the following countries:
24.1.The Commonwealth of Australia;
24.2.Country M on the basis of the Mother’s Country M heritage; and
24.3.The United Kingdom (Britain) on the basis of the Father’s British heritage.

25.For the purpose of Order 24:
25.1.Where it is necessary for X to become a citizen of the relevant country in order to obtain a passport, the parents shall do all things and sign all documents necessary to apply for citizenship for X of that country;
25.2.The parents shall share the costs associated with obtaining a new Australian passport for X (no less than 6 months prior to the expiration of her Australian passport); and
25.3.The mother shall pay for the costs associated with obtaining a Country M and/or British passport for X inclusive of the costs associated with obtaining Country M and/or British citizenship for X.

26.While X is in London, the mother shall hold X’s passport(s);
27.While X is in Sydney, the Father shall hold X’s passport(s) unless the mother is also in Sydney at the time.
28.Each parent shall be at liberty to travel internationally with X during their parenting time with X on the condition that:
28.1.The travelling parent provide the non-travelling parent with written notice of their intention to travel internationally with X no less than 48 hours prior to the date of intended departure; and
28.2.The travelling parent provide the non-travelling parent with all return travel documents for X no less than 48 hours prior to the date of intended departure; and
28.3.The travelling parent cause X to video call the non-travelling parent each second day for the duration of X’s time abroad at such time as agreed between the parents in writing, and failing agreement at 7.30 pm, and for the purpose of this order the time at which X video calls the non-travelling parent shall be defined as the time local to the city / region that X is in on that day.

29.When both parents are in Sydney, X shall video call with the parent whose care she is not in each second day between 7.00 am and 8.00 am Sydney local time, except if there has been a changeover on that day.
30.When both parents are in London, X shall video call with the parent whose care she is not in each second day between 7.00 am and 8.00 am London local time, except if there has been a changeover on that day.
31.When X is in London with the mother and the father is in Sydney, X shall video call with the father each second day between 7.00 am and 8.00 am London Local Time.
32.When X is in Sydney with the father and the mother is in London, X shall video call with the mother each second day between 7.00 am and 8.00 am Sydney Local Time.
33.Both parties, in the event that they have not already done so are to enrol in and complete Parenting after Separation and Circle of Security courses within 12 months of the making of these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blackmore & Roth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

The applicant father (“the father”) and the respondent mother (“the mother) are the parents of X, born in 2015. The proceedings relate to what the appropriate parenting arrangements for X are in circumstances where the mother currently resides in London and the father currently resides in Sydney.
The parties separated in March 2020 and on 14 September 2020, they entered into interim orders by consent. Those orders provided that X’s habitual residence was Sydney and that she would live between Sydney and London in various arrangements, with some of the time being spent in London with her mother and father and on other occasions in Australia with her mother and father. Those orders had a sunset clause that provided for the mother to return X to Sydney by 1 October 2022, where X was to thereafter live in an equal time arrangement with her parents and to attend school in Sydney.
At the commencement of the hearing, the father sought orders that X live with him in Sydney and spend time with her mother. The mother sought that X live with her in London and spend time in the holidays with the father in Sydney and on other occasions in London. The mother’s alternate position in the event that she was unsuccessful in the application that X reside with her in London was that X reside with her in Region F.
Each party made their position clear, namely the father indicated that if orders were made for X to live in London, he would continue to remain in Sydney whilst the mother made it clear that if orders are made for X to reside with the father in Sydney, then she would not live in London but would live in Region F. The father’s position in relation to the mother’s application to live with X in Region F appeared to be that he would move closer to X.
However, by the time of submissions the father’s position changed. He no longer sought orders that X live with him in Sydney but proposed orders that mirrored those of the Independent Children’s Lawyer (“the ICL”), namely that X live with her mother in Region F and spend five nights per fortnight and half school holidays with her father. The mother’s primary position remained that she wanted to live in London with X but if the Court did not consider such an arrangement as being in the child’s best interests then in Region F.
Each of the parties’ affidavits addressed matters of family violence, in part, arising as a consequence of an incident that occurred in 2020. The consequence of that incident was that the mother made a complaint to police in mid-2020, whereupon an apprehended domestic violence order (“ADVO”) was taken out for her protection and the father was then arrested and charged with assault occasioning actual bodily harm and common assault. The criminal proceedings proceeded to a final hearing and in 2021, following cross-examination of the mother, the Local Court dismissed the criminal charges and the ADVO, and the father was awarded costs.
Against that background, each of the parties prepared their affidavits and also took part in interviews with the single expert who prepared a Family Report. The single expert, consistent with the way the parties had conducted the case to that point in time, devoted much of her report to addressing issues of family violence.
As it was, on the first morning of the trial each party informed the Court that they would not contend that either party posed an unacceptable risk to the child, that the Court would not be asked to make findings about family violence matters, and that neither party would contend that family violence was a relevant consideration.
The ICL indicated no objection to such course.
The parties are bound by the way in which they conduct the hearing. The consequence of such a course was that the allegations of family violence were not the subject of any testing through cross-examination. The Family Report addressed various matters of family violence and referenced conversations with the mother’s counsellor who was not called to give evidence, as well as affidavits which were not relied upon in the proceedings. The consequence of conducting the hearing in this fashion neutered to a significant extent some of the opinions of the single expert. However, the single expert when specifically asked said that it did not change her ultimate recommendations.
It would have been preferable had the parties adopted such a position before the preparation of their affidavits and before attendance upon the single expert.
Background and procedural history
The father was born in 1970 and is currently 52 years of age.
The father was born in Australia and has British citizenship, such that he can live and work in the United Kingdom.
The mother was born in 1982 and is 39 years of age.
The mother was born in Country G and has Country M citizenship, which allows her to live and work in the United Kingdom.
The father contends that the parties commenced cohabitation in 2011, whilst the mother contends that they commenced cohabitation in 2008. For the purposes of these proceedings, nothing turns on when the parties commenced cohabitation. The parties were married in 2014 and the one child of their relationship, X, was born in 2015. The parties physically separated following an incident of family violence in 2020. At the time of separation, X was nearly five.

The father and mother both work in the entertainment industry.
The parties are at issue as to who X’s primary carer was in the years leading up to their separation. The limited cross-examination on the topic means the Court is unable to make any finding as to who X’s primary carer was up until the time of separation. The evidence does, however, reveal that both parties were substantially involved in her care and to the extent possible, both parties managed their work arrangements around X.
Following separation, the mother and X left Sydney and went to Region F. Consequent upon this move to Region F, the father did not see X until 17 July 2020.
The father says that he attempted to arrange mediation in the intervening period to obtain some resolution to what was then an impasse in relation to X's care. The problem was also complicated by the intervention of COVID-19. There was some cross-examination of the father about whether or not he attempted to obtain a permit to enter Queensland so that he could see X. The father indicated that he did not make an application for a permit but I also note there is no evidence before me that had he made an application for a permit, he would have been permitted to enter Queensland. The fact remains, however, that the father did not see X for a significant period of time following the parties’ separation.
It does not seem in dispute that X found this separation from her father difficult. The father gives evidence that she appeared distressed when he saw her on video calls or spoke with her on the telephone. He says that she expressed sadness at being away from him and said to him that she missed him. He gives evidence of the mother on one occasion sending him an SMS about X having a meltdown because he had not answered a telephone call. These matters were not the subject of challenge and I accept the father’s evidence.
The father commenced proceedings on 24 June 2020 seeking parenting orders. On 26 June 2020, the mother attended upon Queensland police and reported the incident that occurred earlier in 2020. The father suggested through cross-examination of the mother that there was no coincidence that the mother contacted the police following the commencement of proceedings and that it was in essence a reaction to what he did. No submissions ultimately were put by either party and I make no finding in relation to this issue.
Following the commencement of proceedings, a series of orders were made by the Court, initially on 14 July 2020, subsequently on 5 August 2020, and finally on 14 September 2020.
The parties’ current arrangements in relation to X are governed by the orders made by consent on 14 September 2020. Those orders have implemented an arrangement that permitted the mother to move to the United Kingdom with X, whilst also making arrangements for X to spend large block periods of time with each of her parents. For example, under the orders, X spent a block period of time with her father between April and September 2021 and in that period of time did not physically spend any time with her mother. The reasons for not seeing her mother were in part a function of COVID-19.
The mother in her affidavit sets out with some significant precision the number of days that X has spent with her father and mother in the period subsequent to the making of the 14 September 2020 orders. The mother’s affidavit identifies that numerically X has spent more time with her mother than her father. That, however, is but part of the picture.
The consequence of the orders is that X has attended three different schools in the last two years. She has moved back and forth between London, Sydney and Region F. This arrangement would no doubt have been disruptive not only to her schooling, but to her settling into spending time with each of her parents.
Each of the parents gives evidence of X having significant difficulties separating from the other parent, and the father made some frank concessions that X initially had some significant difficulties in settling into time with him. She was clearly missing her mother.
I am of the view that the orders of 14 September 2020 were orders that were not in the best interests of this little girl. The Court is left with the nagging suspicion that the orders were ones that were crafted more with each parent’s desire to maximise as much as possible their time with X, rather than an arrangement that would have provided her with stability, routine and consistency of schooling. Such an arrangement would have been more consistent with her best interests.
Subsequent to the making of the orders, the parties implemented the regime provided. At various times COVID-19 impacted upon the precise implementation of the orders as well as making pre-determined travel arrangements difficult to implement. The parties nevertheless seemed to make what was not a perfect situation tolerable.
Proposals of the parties
Each of the parties’ initial applications to the Court would see X separated from her other parent. Each would contend that their proposal had advantages and each clearly had disadvantages.
The father’s application by the time of submissions was that X live with her mother in Region F, and that she spend time with him for five nights per fortnight in the school term and for half the school holidays. The father gave evidence that if these orders were made he would move to live in Region F to be proximate to her school.
This proposal has the advantage of both parents being in close proximity to X and her school, and with X retaining a connection to her extended family and friends. The father contends that his work is based in Australia and that he needs to work to be able to provide financially for X.
The disadvantage of this proposal is that X’s mother would be living in a location that is not her primary choice and would impact considerably upon her income earning capacity. X would also be denied the opportunity available to her of living in London.
As to the mother’s proposal to live in the United Kingdom, it has significant advantages for her. The mother, for her part, contends that her work is in the United Kingdom and that is the location that she desires to work, maximising her potential financial gain. In her affidavit, she set out in detail the various work projects that she has available to her over the next two years. Whilst the actual work may take place in various locations worldwide, the projects necessitate her being in London. The mother gives evidence that she expects to earn in excess of $1.6 million over the next 18 months.
She says that X is settled in school in the United Kingdom, which the mother is prepared to meet the cost of in the future. The mother sets out a detailed proposal for travel and the maintenance of a relationship between X and her father as well as contributing to the costs of such travel.
The mother contends that the father can obtain work in the United Kingdom and she points to evidence where she has proposed the names of various people who the father could contact to pursue work opportunities in the United Kingdom. There is, however, no evidence before the Court that there actually is work for the father in the United Kingdom, with it being the case that he has principally worked in Australia for most of his career.
The disadvantage of the mother’s proposal is the separation of X from her father for large blocks of time unless he moved to the United Kingdom. The father, for his part, contends that he will not live in the United Kingdom. That said, in his cross-examination he conceded, contrary to his interests but consistent with his focus on the best interests of his daughter, that he would make an arrangement work to ensure he maintained a relationship with his daughter. X would also not see as much of her extended family as opposed to the situation that would exist if she lived in Australia.
The parties were in agreement that X would live primarily with her mother. The parties were also in agreement as to parental responsibility.
The father relied upon the following documents:
(1)Affidavit of father filed 26 August 2022; and
(2)Case Outline document.
The mother relied upon the following documents:
(1)Affidavit of mother filed 29 August 2022;
(2)Affidavit of Ms B filed 26 August 2022; and
(3)Case Outline document.
Each of the parties were cross-examined. Ms B was not required for cross-examination.
A Family Report dated 23 August 2022 was prepared by the single expert, Dr H. Both parties and the ICL cross-examined the single expert and referenced the Family Report.
Submissions of the ICL
Counsel for the ICL submitted that orders should be made that X live in Region F with the mother and spend five nights per fortnight and half school holidays with the father. Counsel for the ICL submitted that the central issue in the case was the need for the maintenance of a meaningful relationship. Counsel for the ICL submitted that the mother reports that X is already resisting spending time with her father and that things are getting worse, not better. Counsel for the ICL submitted that a relocation to the United Kingdom will see X spending less time with her father and that there is an issue about the father's financial capacity to travel.
Counsel for the ICL submitted that the mother has a negative view of the father’s parenting capacity, asserting that he cannot meet her day-to-day needs. Counsel for the ICL submitted that the London proposal involves one of disruption, with other people substantially involved in X’s day-to-day care. He submitted that the mother has undermined the father’s relationship with the child, referencing the secret symbol that the mother used in relation to X as well as the mother arranging a holiday in Country J and a family reunion in Region F in what was meant to be the father’s time.
Counsel for the ICL ultimately submitted that living in reasonably close proximity allows for significant time with both parents and removes the risk of diminution in X’s relationship with her father.
Submissions of the mother
The mother’s counsel submitted that orders should be made for X to live in the United Kingdom with the mother. He submitted that the Court has to focus on what the mother’s primary position is, namely, that she wishes to live in the United Kingdom and that Region F is very much a secondary option. The mother’s counsel’s submissions focused on the mother’s capacity to work in London and her inability to work in Australia, and that there are potential benefits to X if the father moves to the United Kingdom such that they will be in close proximity. The mother’s counsel identified that there is no compulsion on the father to live in Region F notwithstanding that it is his evidence to do so.
Her counsel identified that whilst there might have been conflict post-separation, it has not impacted on X. The mother’s counsel identified that the single expert did not have a concern that the relationship with the father was diminished by any actions of the mother and that, in fact, the single expert was complimentary of the mother’s support of the relationship between X and the father.
Submissions of the father
Counsel for the father identified that a party’s freedom of movement must ultimately give way if the child’s welfare would be adversely affected by the relocation. The father’s counsel indicated that the father abandoned his application for the child to live with him.
The father’s counsel submitted that the single expert was confused and self-contradictory in her evidence, and that the underpinnings for much of the opinions in the Family Report were not established by the evidence. In relation to the single expert’s conclusions about the father’s negativity, counsel for the father identified that the father responded to criticisms of his parenting capacity and made appropriate concessions. He contended that the father’s correspondence with the mother was in all circumstances respectful, and that he agreed with various propositions put forward by the mother such as transitioning his time with X and agreeing to the mother's holiday in Country J which reduced the father's time.
Conversely, he identified that the mother’s correspondence was directive, that the mother refused to offer any make-up time, and that she made criticisms of the father in her affidavit, many of which were not the subject of cross-examination or submission. The father’s counsel submitted that the mother is not supportive of a relationship between X and her father and that there is a real risk that over time the father’s relationship with X will diminish. The father’s counsel submitted that the safest way forward was to adopt the alternative position of each party, namely, that X live in Region F with her mother and spend five nights a fortnight and half school holidays with her father. There were risks for X in relation to the mother’s proposal to live in London, which were not present in Region F.
The single expert’s evidence
The single expert provided a comprehensive Family Report following interviews with the parties and a number of other persons. The single expert’s ultimate recommendation was that X should live with the mother in London, that the parties should share parental responsibility, and that X should spend significant time with the father throughout the year. This could include the father travelling to London to see X and X travelling to Australia for holidays but for no more than a month at a time such as to reduce the time that she is away from her mother. She also made recommendations that the parties should engage in parenting after separation classes if they have not already done so.
In the Family Report, she identified that the parties have different views and approaches to parenting, largely as a function of their own experiences as children. She identified that both parties had an understanding of the role and responsibilities of parenting. She observed from her interactions with X that she expressed a clear preference to live in London with the mother and to travel to Australia to see her father on holidays. She observed the father interacting with X, and that they had a close bond and a fun connection. She says she did not observe anything of concern in the interaction between X and the father. In relation to the mother’s interaction with X, she observed that it was largely unremarkable in terms of any concern and that they shared a close bond and were comfortable with one another. She observed that X went easily to the father and did not demonstrate any distress or discomfort at separation.
The single expert opined that both parties profess a strong love for their daughter and had a sound insight and demonstrated a commitment to care for X in an appropriate and responsive manner. She concluded that they were high-functioning people who engage productively and socially in the community and opined that if they lived in the same place it would be a case in which shared care and parental responsibility would result. She also observed that both parties have the capacity to provide and care for X’s needs and that their jobs, whilst demanding, also afford them flexibility and extended periods of time which they can devote to looking after their daughter.
She observed that while X’s primary attachment was with her mother, she observed that X had a positive, meaningful, loving and supportive relationship with both of her parents. She said that X would find it difficult being separated from either of her parents in the long-term but that it would be more emotionally traumatic for her to be separated from the mother for any extended period of time.
In my view, the single expert’s evidence was helpful. I do not accept the submission of the father that she was self-contradictory or confused. In my opinion, she had a clear understanding of the issues before the Court and gave convincing and consistent evidence in line with her recommendations. The single expert expressed no concern about X being cared for by nannies. The submission put by counsel for the ICL in that respect was not raised with the single expert. It is not a relevant consideration in light of the findings about their attitudes to parenting. Whilst many of the matters about which she expressed opinions on of family violence were ultimately not matters upon which the Court was asked to make a determination, she remained clear in her view that X’s best interests were served by living with her mother in the United Kingdom and spending time with her father.
The parties evidence
I have had regard to the extensive affidavit material which the parties relied upon, the exhibits tendered, and the evidence contained in the Family Report. I have also had the benefit of observing the parties give their evidence.
There is limited utility in setting out at length the evidence given by the parties in their affidavits. Significant parts of the evidence contained in both the mother's affidavit and the father's affidavit were rendered largely irrelevant by the sensible concessions by their respective counsel at the commencement of the hearing in relation to matters of family violence to which I have referred to earlier.
It was my impression that each of the parties attempted to give their evidence truthfully, albeit they each had a tendency to see things from their own perspective.
As referred to above, the parties agreed that there should be an order that they have equal shared parental responsibility and that X should remain in the mother’s primary care. The issue for determination thus became whether or not X should live in London on the mother’s proposal, or in Region F on the proposal set out by the ICL and the father.
As a consequence of the positions of each party being reframed in the manner referred to above, it seems to me that the issues for determination include amongst others:
(1)A consideration of the mother’s legitimate desire to live in London;
(2)Whether the mother is supportive of X’s relationship with the father; and
(3)The ability of X being able to maintain a meaningful relationship with the father should she live in London or in Region F.
Clearly, having regard to the parties’ agreement that they should share parental responsibility, the question becomes whether or not it is in X’s best interests and reasonably practical for her to spend equal time or alternatively substantial and significant time with each of her parents. This will be addressed in due course later on in these reasons.
In relation to the mother’s legitimate desire to live in London, the Court has an obligation to explore and consider her right to freedom of movement, that is to live where she wishes and to pursue her legitimate interests and desires. This consideration is even more sharply focused where a primary carer is required to undertake the role of primary care in a place not of his or her choosing. As Kirby J observed in AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”):
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modem family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
(Footnotes omitted)

In Oswald & Karrington (2016) FLC 93-726, their Honours in the Full Court observed in the following terms:
17.Consequently, as emphasised by the Full Court in D and SV and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
(Footnote omitted)
It was not submitted that the mother’s desire to reside in the United Kingdom was as a consequence of any attempt to exclude X from the father’s life. It is clear that the parties had, prior to separation, spent some time in the United Kingdom where they pursued their careers. It is also clear that at or about the time of separation, the parties clearly had a plan to relocate to the United Kingdom for a significant period of time. Whilst the father contends that it was not intended to be a permanent relocation, it matters little for the purposes of this determination whether it was or was not, as it is clear by the 14 September 2020 orders that the parties recognised that there was significant opportunities to the mother, at least at that stage, of living in the United Kingdom with X.
I accept that there are significant financial and employment opportunities for the mother by living in the United Kingdom. Her evidence in her affidavit setting out the opportunities available to her was not the subject of any challenge in submissions. She says the following in her affidavit:
12. Since late 2020, I have resided in London where I am able to undertake work which is suitable to my level of skill and experience, and which is adequately remunerated. I am unable to obtain the same kind of work in Australia, nor derive the same amount of remuneration in Australia.
She set out in her affidavit a number of work projects that she was involved in that see her employment prospects in the United Kingdom, the United States and in other locations running through to the end of 2023. She says the following in her affidavit:
100. London is the central hub for the European [entertainment] industry. The work which is available to me in Australia pays significantly less and is more demanding on my time and availability, which is incompatible with my personal obligations as a Mother and in circumstances where I pay for the majority of [X’s] expenses. In London, the industry generally and the work available to me is better resourced and funded, and I work with [two agencies] which are both focussed on supporting women in the workplace. This has meant that all of my work contracts in the UK have taken into account my family circumstances and have included:
100.1. Flexibility to be available for [X] when she needs me;
100.2. Funding for [X’s] travel;
100.3. [X’s] visa, which is required for her travel to the UK in circumstances where she is currently an Australian citizen only and holder of an Australian passport only; and 100.4. The ability to fly my Mother over to the UK as necessary and provide accommodation for us.
…
104. I currently file tax returns in both Australia and the UK, and my Australian tax return includes my UK income. My total income for the 2021 financial year as recorded in my Australian taxation return was $281,892 and my taxable income as recorded in my 2021 tax return and notice of assessment was $279,969. I have not prepared my Australian tax return for the financial year ended 30 June 2022. [Mr Blackmore] has informed Child Support that his estimated income for the 2021 financial year was $8,214. A copy of my Australian tax return and notice of assessment for the financial year ended 30 June 2021 is annexed hereto and marked “II”. Copies of my Australian tax returns and notices of assessment for the financial years ended 30 June 2009 to 2020 were provided to [Mr Blackmore’s] lawyer UWE by my lawyer HR on 24 January 2022.
…
106. My income increased in the 2021 financial year as I received a much higher remuneration when I undertook London based work. In the financial year ended 30 June 2021, I earned AUD $15,249.20, and the balance of my income was from work in the UK.
107. The projected income for [K Company] for my work over the next 18 months is set out at paragraph 40, and is likely to be about USD $1,682,716 or more.
108. In my experience, the [entertainment] industry can be fickle and success is not always permanent. I have had international recognition of my work since 2019. I believe that the best opportunity for me to advance my career, and to build a financially secured life for X and I is by residing in London and taking on projects with a London base.
I accept the mother’s evidence. I accept that in the event that she were not able to pursue her legitimate desires to live in the United Kingdom then there would be a significant curtailment not only of her freedom of movement, but also her ability to pursue her employment and the financial opportunities that are available to her.
The mother set out in her Minute of Order attached to her Case Outline a structured and practical proposal for time with the father. She provides time between the father and X during the Christmas school holidays, and what are described as the United Kingdom spring and summer holidays. It also provides for time between X and the father should the father come to the United Kingdom. The father in the past has attended the United Kingdom to spend time with X and his evidence is that he will take every opportunity to come to England if he is able to do so.
I am satisfied that the mother’s desire to live in the United Kingdom is bona fide and does not spring from a desire to remove the father from X’s life.
The father gave evidence that he lives in Sydney and has worked in the entertainment industry for most of his adult life. He says that following X’s birth he accepted work which would enable him to be involved in X’s care. He gives evidence that he worked on projects in Australia, as well as undertaking some work in London. He identifies that his work is very different to that of the mother’s in that his onsite work days are identified in advance. Other preparation can be done in his own time and in any place. The father gives evidence that as a consequence of the publication of the criminal proceedings involving the assault charges, he has lost a considerable amount of work. In particular, he says:
129. I am currently rebuilding my damaged career in Australia […]. I have far better prospects of rebuilding my career in Australia than building a career in London. I do not wish to live in London, away from my family.
The father acknowledged that if there was work available to him in the United Kingdom he would take it. The mother says the following about the father:
136. If [Mr Blackmore] relocates to the UK, it would be possible to implement an arrangement which is better tailored to [X’s] best interest, which would not require her to spend extended periods of time away from me and which would ensure greater consistency and stability in her life.
137. I am aware from my role […] that there is an ongoing demand for [professionals with Mr Blackmore’s skills].
I am satisfied that the father’s employment prospects are primarily Australian based. It is clear on the evidence that the mother’s current earning capacity is superior to that of the father’s.
The alternate proposal that X live with the mother in Region F is clearly not the mother’s preferred proposal. As the case transpired, whilst it had been an alternative proposal of the father, it became his primary position. A proposal that X reside with the mother in Region F really represents, on a proper analysis of each party’s proposal, a compromised position. It was not initially the father’s primary position, nor is it the primary position of the mother.
In the case of the mother, it represents a loss of her employment opportunities and the financial benefits they provide for her. The mother gives evidence that she would be compelled to live with her parents given her financial debt obligations.
In the case of the father, it involves him moving to a locale in which he has previously not expressed a desire to live and was one that only came as a consequence of late changes in his position at the hearing.
It would involve X changing schools and living in a new locality. I am not satisfied that it is a proposal that either party is entirely wedded to and it represents at best a compromise. It sees a rejection of the mother’s legitimate desire to choose where she lives, a loss of her employment, a move by the father away from his home, and a change in schooling for X.
Applicable law
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
While the best interests of a child are the paramount consideration in the making of a parenting order, they are not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires and the right of a parent to live where they wish is an important consideration.
In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want is in conflict with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89].
In Franklyn & Franklyn [2019] FamCAFC 256, the Full Court explained the applicable law in these terms:
27. There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262 ).
A relocation case is to be determined in the same way as any other parenting case. Relocation cases are not a special category of cases: Morgan & Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe& Another (2012) 48 Fam LR 298 (“Sayer v Radcliff and Another”) at [47]–[48].
The Full Court in Sayer v Radcliffe and Another observed:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80].
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child’s parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)       the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary considerations are:
60CC How a court determines what is in a child’s best interests
…
(2) …
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
primary considerations
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with each parent.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should 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 (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most like ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The courts obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
On the competing applications of each party, they both contend that X should spend periods of time with the other party. The single expert in the Family Report said:
246. …
[X] already has positive, meaningful, loving and supportive relationships with both of her parents, with whom she spends periods of time. This is important and should be supported and encouraged as being in the best interests of her development. Perhaps as a result of these relationships, [X] is clearly a dynamic, engaging, animated and delightful child, who has emerged from the acrimonious divorce of her parents without any obvious difficulty with many people around her who love and care for her and who want the best for her. She is also a child with many positive opportunities as a result of her parents and what they provide for her.

It is clearly, therefore, to X’s benefit to have the maximum meaningful relationship possible with each of her parents. In doing so, however, I am cognisant of the authorities I have referred to earlier and in particular that a meaningful relationship can be achieved on a particular proposal even if it’s not the optimal one.
The single expert in making her recommendation clearly contemplated that X would be able to maintain a meaningful relationship with the father if she lived in the United Kingdom.
I am satisfied that the orders that the mother proposes of regular holiday time in the United Kingdom and in Sydney as well as time in the event the father travels to London are such that they will enable X to have a meaningful relationship with her father.
Likewise, the orders proposed by the father and the ICL if X lived in Region F are such as to permit X to have a meaningful relationship with both of her parents.
Section 60CC(2)(b) abuse and family violence
As indicated earlier in these reasons, neither party contended that the child was at unacceptable risk in the care of the other party nor would I be asked to make any findings about family violence as all parties contended that it was not a relevant consideration in the proceedings.
The consequence of this finding has an impact upon many of the opinions reached by the single expert. What I do take, however, from the single expert’s report is her conclusion that “[b]oth [Ms Roth] and [Mr Blackmore] impress as having insight into the need to protect [X] from any future risk” (Family Report, paragraph 246).
While some matters of risk such as the use of alcohol or drugs formed a significant part of the mother’s affidavit and her statements to the single expert, it was not suggested by either party in submissions that it was a relevant consideration.
Additional considerations
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The single expert identifies that X wishes to live with her mother in London and spend holiday time with her father.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
The single expert in the context of X’s views said:
246. …
… [X] is only just seven years of age and she clearly knows her own mind and associated with this, she was able to give me reasons for her position. Notwithstanding, [X] is young and developing and this will reduce her capacity to fully appreciate the long term consequences of her position, in addition to tempering the weight the Court accords to her views. However, it is also noted that [X] has had experience of living with and spending time with both parents and she has a demonstrable relationship with both parents, which means she has recent and valuable experiences in the context of which she may form her opinion. Even so, at least to some degree, [X’s] position is likely informed by her residence experience in the last few years, which has been primarily with her mother.
Given her age and what the single expert says, I recognise X’s views but place no weight upon them. Notwithstanding that the single expert described her as an intelligent child who understands that her parents have a difficult relationship, I recognise also that at her age she can only have a limited comprehension of the magnitude of the issues at play in what is described by the single expert as a finely balanced decision.
(b) The nature of the child’s relationship with each of the parents and other persons
I accept the single expert’s opinion that the mother is X’s primary attachment figure. The single expert’s conclusion in this respect was not the subject of any cross-examination. It was not suggested otherwise in submissions.
The single expert observed:
246. …
[X] has clearly close and positive relationships with both of her parents but according to [X], she is closer to her mother when compared to her father. In addition, [X] seemingly enjoys close connections with both her maternal and paternal families who reside in Australia, as well as friends in both London and Sydney.
X has the benefit of an excellent relationship with each of her parents and there is nothing in the nature of her relationships with either parent that is a cause for concern.
I note that the single expert identified that X has said that she feels a little safer and happier with her mother than with her father but it is not a factor that I place any weight upon, particularly in circumstances where the single expert did not pursue with X any explanation for her statement. It may well be just the statement of a seven year old coming to grips with what is an unfortunate position that has been imposed upon her.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
This is not a relevant consideration and no submission was put to me to that effect. I am satisfied that both parents have taken the opportunity to participate in decisions about major long-term issues in relation to X. In that respect, I note that the parties each seek orders for equal shared parental responsibility but recognise that there should be a carve-out in relation to matters directly pertaining to X's schooling. That is a sensible position adopted by each party and is one that shows their focus on attempting to minimise as much as possible matters of conflict. It also represents a significant recognition on the part of the father that the mother will make appropriate decisions in relation to X's schooling.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
This is an irrelevant consideration. Both parties have shown a dedication to maintain the child. There was some limited cross-examination about the mother being in arrears of child support. It, however, did not form the basis of a submission by the father's counsel as a relevant consideration. I note that the mother proposes in the future that she will meet the school fees for X in the event that X is permitted to reside in the United Kingdom, as well as making a contribution to the father's travel costs. I am satisfied that both parties have displayed an appropriate attitude to their obligation to maintain X.
(d) Likely effects of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The consequence of the mother's application for relocation is clearly that X would spend less time with her father than would be the case if she lived on Region F. The single expert opined as follows:
246. …
[X’s] residence is shared only with her mother or father regardless of whether she lives in this country or abroad. Further to this, she has spent periods of time living with both her mother and her father and is used to having time with both [Ms Roth] and [Mr Blackmore]. As such, I would expect that [X] would find it difficult to be separated long term from either of her parents. It is my understanding, at least on the basis of the accounts of [Ms Roth] and her mother, that [X] finds it more challenging to be separated from her mother. Further to this, on the basis of [X’s] account to me at interview, I would expect that it would be more emotionally traumatic for her to be separated from her mother for any extended period.
I accept the opinion of the single expert. She opined in the witness box that X would be devastated if she did not live with her mother. She also went on to say that if she lived with her father and was seeing her mother every couple of weeks, that she anticipated that there might well be an escalation in resistance, defiance, distress and a difficulty separating from her mother She agreed that it could ultimately have a detrimental impact on X's relationship with her father. In relation to living with her mother in London and her father living in Sydney, the single expert opined in cross-examination that this proposal is one that is less likely to see the same devastation.
Whilst on the mother’s primary proposal X will spend less time with her father than she currently does, I note that it was the single expert’s recommendation that such a proposition was in her best interests weighting up the competing positions of each party.
In the event that the father moved to the United Kingdom, then the mother’s proposal mirrors what it would be in the event that X lived in Region F. Clearly if both parents lived in Region F, then X could engage with her extended family including grandparents more easily and both her parents could more readily engage with her school.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is clearly a practical difficulty and expense should the mother reside in the United Kingdom and the father continue to reside in Australia. In that respect, the single expert opined:
246. …
The primary challenge in this case is the fact that [Ms Roth] seeks to reside in London, whilst [Mr Blackmore] resides in Sydney. Nevertheless, both parents have the means, capacity and preparedness to travel between the countries to facilitate time with [X], although this has obviously been and will continue to be an expensive and challenging necessity. Further to this, with the ease of current technology, there is nothing preventing [X] from having regular contact with whichever parent she is not in the care of. Both parties express a recognition of the importance of maintaining communication and connection for [X] with the non-residential parent and their behaviour since separation would suggest a preparedness to facilitate this.
I accept the evidence of the single expert. I am satisfied that the mother provides a practical proposal for X to maintain a relationship with her father, which notwithstanding the oft-repeated reference to the tyranny of distance, provides a practical solution to the maintenance of a meaningful relationship between X and her father with X living in London. In that respect, the mother proposes to meet the cost of X’s travel in some instances as well as contributing to the father’s cost.
The father elected to provide no evidence as to his financial circumstances. When a specific enquiry was made with the father's counsel as to whether there would be any evidence, the Court was informed that there would not be. Notwithstanding that, the father in cross-examination revealed that he is the owner of two apartments, that the mortgage instalments on those apartments are approximately $1,200 per month. During the course of his cross-examination, he gave some evidence that the apartments were rented out in 2019 for approximately $600 per week. The father also gave some evidence that he has approximately $60,000 in an offset account and anticipates this year his income might be approximately $100,000.
I accept the father’s career has to date been in Australia which is the source of his work but also note that he has worked in the United Kingdom in the past. He indicated that if he were offered work in the United Kingdom he would take it.
During cross-examination, the father was asked by counsel for the ICL whether he could afford travelling and spending time in the United Kingdom to see X and he said “I will make it happen”. If it were to be the case that the father was to advance the proposition that he would not be financially able to spend time with X if she were living in the United Kingdom, then it was incumbent upon him in light of the evidence of the single expert referred to above to provide evidence that would convince a court otherwise.
In light of the above, I am satisfied that each party’s financial position is such that it is not an impediment in and of itself to the maintenance of a meaningful relationship between X and her father if she lived in the United Kingdom.
If she lived in Region F, then there would be no issue of difficulty or expense in maintaining contact with both of her parents.
(f) The capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
The single expert in relation to the father observed:
146. [Mr Blackmore] demonstrated a sound understanding of the role and responsibilities of parenthood. He reported to have completed the Circles of Security course before, which he independently sought to do. [Mr Blackmore] stated that this course helped him better understand a child’s emotional reactions with respect to their attachment experience and developmental needs. [Mr Blackmore] added that he can call on his mother or his best friend for parenting advice as needed, in addition to which, in the past he has consulted with a child therapist on a number of occasions for professional advice and input.
In relation to the mother, she observed:
72. [Ms Roth] demonstrated a sophisticated understanding of the role and responsibilities of parenthood, including the socialisation aspects of parenting. [Ms Roth] described for me her typical routine, on both a week day and a weekend and this includes a focus on both necessary and pleasurable activities.
Further, in relation to both parents, she observed:
246. …
Both parents in this case impress as having the capacity, preparedness and motivation to meet [X’s] needs across the various domains of development. However, it is my opinion that [Ms Roth] is better placed to do this in the long term as a result of her better stability in functioning, the presence of fewer risks in her care and [X’s] reportedly closer attachment to her mother. Both [Ms Roth] and [Mr Blackmore] are also well supported in this by a close network of family and friends, which is positive.
The single expert in the course of the Family Report and also in her cross-examination said that she formed the impression that the father had a very negative view of the mother. In the Family Report, she identifies that he made a number of negative and disparaging comments about the mother.
I am satisfied that before me the father did not display a negative attitude towards the mother. He was complimentary of the mother and whilst he did not agree with the mother’s proposal to remain residing full-time in the United Kingdom, he identified the mother’s strengths during cross-examination as being a very creative and caring mother who was engaged with her daughter and that they shared fun activities together. The father accepted in cross-examination that the mother wants X to have a close and loving relationship with him.
The father believed that his relationship with X has changed and that the change may be as a consequence of something that the mother is doing either consciously or unconsciously to X. There were examples that the father relied upon in support of a submission that the mother was interfering with his relationship with X in a negative way. In that respect, he referenced the mother’s refusal to offer make-up time during the transition period in the first part of 2021, the mother presenting to the father the holiday in Country J as a fait accompli, the arranging of a family reunion, the use by the mother of a secret symbol, and the style of some of the correspondence from the mother.
The father’s counsel made a submission that the mother holds a negative attitude towards the father. He referenced parts of the mother’s affidavit where she made a number of criticisms of the father’s capacity to provide for X’s needs. They formed a significant, unnecessary and unfortunate part of her affidavit. For example, in her affidavit, the mother says the father has “a lack of capacity to meet [X’s] needs (at paragraph 20); “I strongly feel that [Mr Blackmore] is unable to prioritise [X’s] needs and that [X's] tendency to become inconsolably upset while in [Mr Blackmore’s] care illustrates that [Mr Blackmore] does not provide [X] with sensitive and age-appropriate emotional support particularly during transitional times” (at paragraph 63); “I have experienced [Mr Blackmore] to be a disorganised person who prefers to pursue a leisure. Aside from surfing, swimming and attending the gym, [Mr Blackmore] is generally apathetic towards plans and he is careless with [X’s] plans and practical needs” (at paragraph 114); “I have serious concerns that [Mr Blackmore] is not able to meet [X’s] practical and emotional needs while she is in his care” (at paragraph 116); “I feel that [X] has formed an awareness of [Mr Blackmore’s] failure to meet her practical and material needs” (at paragraph 117); “I am also concerned about [Mr Blackmore’s] ability to provide for [X’s] emotional and psychological needs particularly because [X] is a sensitive and empathetic person who values independence and autonomy” (at paragraph 118).
These paragraphs and other examples formed the basis for the father’s counsel’s submissions that the mother was not supportive of the father’s role and, in essence, did not value it. Why the mother saw fit to include such evidence in her affidavit is not immediately apparent, particularly in circumstances where it formed almost no part of the cross-examination of the father. I do not accept the mother’s opinions of the father. I find that the father to be an intuitive and insightful parent demonstrated in part by contacting a psychologist for some assistance in dealing with some of the difficulties that he was facing with X. This was insightful parenting and entirely appropriate and child focused. He also acknowledged contrary to his interests that X misses her mother when she is with him.
Each party’s criticisms of the other are more likely a function of their different parenting styles and the residual hurt arising out of the breakdown of the relationship.
The mother is a highly organised and structured person while the father is much more easy-going and laissez-faire. As the single expert observed in the Family Report:
5.Both parties have obviously different views on and approaches to parenting and both [Mr Blackmore] and [Ms Roth] want different things for their child. …
…
244.…
Both parties in this matter have very different upbringings and experiences of childhood and both very much value their experiences and want similar experiences for [X]. This results in both parents having different goals for [X] and her childhood that are not well reconciled and which also inform their decision-making with respect to their child through this process.
I am of the view that these differences explain in some respect the different approaches of the parents to the care of X. I do not find that either parent has the various parenting deficiencies identified by the other.
While I accept that both parties have been critical of the other in their affidavits and in their interviews with the single expert, I do not find that such criticisms mean that they would not promote a relationship between X and the other parent. The mother’s proposed orders speak to an intent to promote a meaningful relationship between X and her father.

I note the single expert’s conclusion that whatever negativity either parent may have displayed toward the other, has not so far impacted upon X. I am satisfied that both parties have the capacity to provide for X’s needs including her emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The single expert opined relevantly in relation to this sub-section as follows:
246. …
The primary issue of relevance in this domain is the impact of the parties’ work schedules and commitments on parenting. Both parents work in industries that mean their working life is structured by projects, with periods of no work and relatively free periods between projects. Both understand and have plans for how to facilitate [X’s] care needs even whilst working, which includes utilising the support of friends and family. Again, both parents have the means and capacity to fulfil their responsibilities as parents whilst working. I acknowledge [Mr Blackmore’s] claims that [Ms Roth] does not and will not fulfil her responsibilities as a parent given her burgeoning career but I am of the view that [Ms Roth] has reasonable plans to parent and work, I accept her account of the greater inherent flexibility in her industry for working parents in the United Kingdom, in addition to which I note that the maternal grandmother is willing and able to assist as needed, as is [Mr Blackmore]. I have also noted above that both parents in this case have very different experiences of childhood. [Ms Roth] lived an international and ex-patriate lifestyle as a child, which resulted in her changing schools and engaging with adults often. In contrast, [Mr Blackmore’s] childhood was much more settled in a close community. Both parents value their experiences and the formative impact that these had for their development and therefore, both seek similar experiences to their own for [X].
I accept the opinion of the single expert
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The single expert observed:
246. …
Both parents express a recognition of and a commitment to their responsibilities as parents and both report a preparedness to prioritise [X’s] needs, which is, in large part, evident in the actions of both. [Ms Roth] impresses as the more organised and structured parent, whilst [Mr Blackmore] is seemingly more fun and spontaneous and [X] needs both. However, I formed the view that [Mr Blackmore’s] actions through the Family Court process have been, to a degree, shaped by his animosity towards and dislike of [Ms Roth] and the resentment and injustice he feels for the impact on his life and career of being charged with criminal offences, rather than being focussed on [X] and what is in her best interests.
I do not accept the single expert’s conclusion that Mr Blackmore’s actions through the court process have been shaped by his animosity towards and dislike of Ms Roth. I am of the view that both parents have attempted to implement an arrangement which they perceive to be in X’s best interest. Contrary to the opinion of the single expert, I find that the father has not insisted upon strict compliance with orders and I find that he has placed X’s best interests at the forefront. In that respect, I note that upon arrival in England for the first of his block periods of time under the September 2020 orders, the mother suggested that the parties implement a transitional arrangement. The father accepted the mother's proposal albeit that it reduced his time with X. The father asked the mother not unexpectedly if there could be some make-up time and the mother’s response in a rather perfunctory way was that there was to be no make-up time. In my view, this demonstrated the father placing X’s needs ahead of his own and reflected appropriately upon his attitude to parenting. It reflected less appropriately upon the mother’s attitude to parenting but overall I formed the view that both parties have an appropriate attitude to parenting.
A similar example can be found in relation to the father's approach to his time in Australia in the first quarter of 2021. In that respect, the father’s time pursuant to the orders was to run between 3 January 2022 and 31 March 2022. As a consequence of COVID-19, the mother did not arrive in Australia until 27 January 2022 and after her arrival spent the two-week period that the orders provided for her to have with X. The father, as he might have been entitled, could have insisted upon some make-up time given the loss that had occurred. He did not. This reflects appropriately upon his parenting capacity recognising the unfortunate intervention of COVID-19, which consequently impacted upon his time with X rather than on the mother's.
I also note the mother’s evidence of attempts to find work for the father in the United Kingdom. This speaks volumes of her commitment to maintaining a relationship between X and her father. A less committed parent would not have made such offers.
I do not accept the submission that there is any difference between either party’s attitude toward parenting and the needs of X. Whilst both parties have at times acted in their own interest and may have been perceived by the other as acting poorly and have said or done things which I am sure they regret or wish they could take back (such as the father being affected by alcohol when on face time or the mother’s answers in cross-examination about prioritising her mother over the father), I am satisfied overall that both parties have X’s best interests at heart and both parties have endeavoured to ensure that she is protected to the maximum extent possible from the conflict. I am also satisfied that both parties are committed to ensuring that X has a meaningful relationship with both her parents.
(j) Any family violence involving the child or a member of the child's family
Given the way the parties conducted the litigation, this is not a relevant consideration. Whilst I recognise the opinion expressed by the single expert in her report under the topic of family violence, I do not make such a finding.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
Not relevant.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am of the view that the orders that I propose are the ones that are least likely to lead to the institution of further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant
There is no other matter that I consider relevant to my determination.
Conclusion
For the reasons referred to above:
(1)I am of the view that the mother's legitimate desire to live and work in the United Kingdom is bona fide and does not adversely affect X's welfare;
(2)I am satisfied that the mother’s proposals for time are such as to ensure X is able to maintain a meaningful relationship with her father if she is living in London; and
(3)I am satisfied that the mother is supportive of X’s relationship with her father.
For all of the above reasons, I have formed the view that the best interests of X are served by permitting the mother to relocate permanently X’s residence to the United Kingdom. In making such order, I accept the mother’s undoubted right to a freedom of movement must always defer to what is in the best interests of X. I am satisfied, however, as a consequence of the practicality of the relocation proposal put forward by the mother, both parties’ undoubted devotion to X and their appropriate attitudes to parenting, that X’s welfare would not be adversely affected if she were to relocate to London.
I further note that in coming to that conclusion, I have relied in part upon the recommendations of the single expert but also upon the cross-examination of the parties and the concessions made by each of them. In that respect, I accept the observations of the single expert as follows:
240. Both parents in this matter profess strong love for their daughter and a commitment to their responsibilities as parents. They both have sound insight into their responsibilities and into their daughter’s needs and have demonstrated a commitment to care for X, generally in an appropriate and responsive manner...
I am confident given my view that the father is clearly devoted to his daughter that he will make whatever arrangements are necessary to ensure that she is able to maintain a meaningful relationship with him. I accept it clearly will come at some financial cost to him but I am impressed by his dedication to his daughter and his capacity to make such an arrangement work. I am also fortified by the evidence of the single expert that the mother also has a commitment to ensuring that X maintains a relationship with her father.
The parties agreed that there should be an order for equal-shared parental responsibility for the child but also that the mother is to have the sole decision in relation to schooling.
In making an order for equal shared parental responsibility, I am required in determining what time order should be made to consider whether spending equal time or significant and substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical. Neither party suggested that such a time arrangement could be made if the father was in Australia and X was in the United Kingdom. It would neither be in her best interests or reasonably practicable.
The time arrangement proposed by the mother was not suggested by the father to be inappropriate in the event that X lived in the United Kingdom.
I have made orders largely in accordance with the time arrangements as proposed by the mother but have increased the period of holiday time in the spring 2023 holidays beyond that proposed by her which was limited to seven days. In my view, if the father is to attend the United Kingdom for the purposes of time with X in that holiday period, then it seems entirely appropriate and consistent with X’s best interests that the father's time with her be maximised as much as possible. This is particularly so in circumstances where the mother will be in Country L. There seems no reason why X's time with her maternal grandmother should be prioritised over X's time with her father.
As to the mother's proposal for 84 days’ notice of travel, the father whilst initially suggesting that it was unnecessarily long, ultimately agreed with that proposal. I will make that order.
Each party proposed orders for time between X and the father in school terms in the United Kingdom. I am of the view that if the father travels to the United Kingdom in school terms, then the proposal he put forward is more practicable and consistent with her best interests than the mother’s, particularly in circumstances where he said that he did not intend to permanently live in the United Kingdom.
The mother’s proposal also provided for the parties to have some form of communication every day, but during the course of her cross-examination conceded that it was better that arrangements take place every second day and I will so order. In relation to the time at which it is to occur, the father's position was that X is much better able to deal with time in the mornings rather than in the evenings when she is tired. I propose to implement the regime of time as proposed by the father.
The mother sought orders for the father to join in making passport applications. I agree that the parties should share equally the cost of an Australian passport. If the mother wishes to obtain a British or Country M passport, then it should be at her cost.
I also propose to make the order recommended by the single expert that the parties undertake a post separation parenting course if they have not already done so.

I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 16 September 2022

File number(s):	SYC 4122 of 2020
Judgment of:	SCHONELL J
Date of judgment:	16 September 2022
Catchwords:	FAMILY LAW – PARENTING – Relocation – Where the mother sought to permanently move to the United Kingdom with the child – Where the father opposed the relocation to the United Kingdom – Where the mother’s desire to relocate to the United Kingdom is bona fide – Consideration of s 60CC primary and additional considerations – Where the Court is satisfied that the mother’s proposal ensures that the child is able to maintain a meaningful relationship with the father and that she is supportive of the child’s relationship with the father – Orders made permitting the mother to relocate with the child to the United Kingdom.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:	AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 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 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152 Sayer v Radcliffe& Another (2012) 48 Fam LR 298; [2012] FamCAFC 209 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 U v U (2002) 211 CLR 238; [2002] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	161
Date of hearing:	1, 2 and 5 September 2022
Place:	Sydney
Counsel for the Applicant:	Mr Levick
Solicitor for the Applicant:	Uther Webster & Evans
Counsel for the Respondent:	Mr Dura
Solicitor for the Respondent:	Horton Rhodes Legal
Counsel for the Independent Children's Lawyer:	Mr Lawrence
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 4122 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BLACKMORE Applicant
AND:	MS ROTH Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	16 SEPTEMBER 2022