Davin & Kerrane (No 2) - [2024] FedCFamC1F 227

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davin & Kerrane (No 2) [2024] FedCFamC1F 227

File number: SYC 6089 of 2023

Judgment of: SCHONELL J

Date of judgment: 12 April 2024

Catchwords: FAMILY LAW – PARENTING – Relocation – Where the mother sought to relocate to the United Kingdom with the parties’ one year old child – Where the father and the Independent Children’s Lawyer opposed the mother’s application – Where the Family Report Writer opined that the child will not develop a secure attachment relationship with the father if he relocates to the UK – Where all parties proposed that the mother be the primary carer – Where the child lived in the UK with the mother for a substantial part of his life – Where the mother was significantly assisted in the child’s care by her parents – Where the father conceded he was not as available as he should have been to care for the child – Where the Court is satisfied that there are risks to the mother’s mental health, if she was not permitted to relocate, that would compromise her ability to care for the child – Where the Court has an obligation to consider the primary carer’s right to freedom of movement – Where the Court determined that, on balance, the child’s best interests are met by permitting relocation.

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

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

Franklyn & Franklyn [2019] FamCAFC 256

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

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

Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293; [1992] HCA 15

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: 200

Date of hearing: 11–13 March 2024

Place: Sydney

Counsel for the Applicant: Ms Vohra SC

Solicitor for the Applicant: Boyce & Boyce

Counsel for the Respondent: Mr Cummings SC

Solicitor for the Respondent: Rubin Blight Hardy Family Lawyers & Mediators

Counsel for the Independent Children's Lawyer: Mr Duc

Solicitor for the Independent Children's Lawyer: Adams & Partners Lawyers
ORDERS

SYC 6089 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DAVIN

Applicant

AND:
MS KERRANE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

12 APRIL 2024

THE COURT NOTES THAT:
A.The following definitions apply for the purpose of these Orders:
1.“Act” means the Family Law Act 1975 (Cth).
2.“Applicant” or “Father” means Mr Davin.
3.“Child” means X born 2023.
4.“Parties” or “Parents” means the applicant and the respondent.
5.“Respondent” or “Mother” means Ms Kerrane.
6.“School Holiday periods” means the school holiday period in respect of the school the Child is then attending from 9.00am on the day after school concludes until 4.00pm on the day before students return to the school, at the commencement of the following term.
7.“in writing” means any form of written communication including but not limited to emails, online and/or through mobile apps, text messages, handwritten notes or typed documents.

B.Pursuant to ss 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create, the particulars of the consequences that may follow if a person contravenes these Orders, and the details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached to these Orders, and are set out in these Orders.

THE COURT ORDERS THAT:
1.Subject to these Orders and for the purposes of s 65Y of the Act, the Mother is permitted to take the Child from the Commonwealth of Australia, specifically for the purposes of residing in the United Kingdom.
2.Each of the parents have equal shared parental responsibility in respect of making decisions about major long-term issues in respect of the Child.
3.The Mother have the sole responsibility for making decisions for the day-to-day care welfare and development of the Child during the periods in which the Child is living with her, and the Father have responsibility for making decisions for the day-to-day care welfare and development of the Child during the periods in which the Child is living with him.
4.As and from the mother’s relocation, the orders made prior to today’s date shall be discharged and the Child shall live with the Mother in the United Kingdom and shall spend time with the Father in accordance with Orders 5 to 10 below.
5.Until 31 March 2025 (when the Child is approximately two years of age):
5.1.The Mother shall travel with the child to Sydney for no less than five weeks each calendar year and during such time the Child shall spend time with the Father:
5.1.1.Each Monday and Wednesday from 7.30am to 9.30am;
5.1.2.Each Friday from 3.00pm to 5.00pm;
5.1.3.Saturday and Sunday from 9.00am to 1.00pm; and
5.1.4.Upon the Father securing leave and providing no less than five days’ notice to the Mother, the Child shall spend time with him from 9.00am to 1.00pm on any weekday that the Child is to spend time with him under this Order.

5.2.The Father may travel to the United Kingdom for up to six weeks each calendar year and during such time the Child shall spend time with the Father:
5.2.1.On the first and second days from 10.00am to 12.00pm; and
5.2.2.Each alternate day thereafter from 9.00am to 1.00pm.

6.From 1 April 2025 until 31 March 2026 (from approximately two years to three years of age):
6.1.The Mother shall travel with the Child to Sydney for no less than five weeks each calendar year and during such time the Child shall spend time with the Father:
6.1.1.Each Monday and Wednesday from 7.30am to 9.30am;
6.1.2.Each Friday from 3.00pm to 5.00pm;
6.1.3.Saturday and Sunday from 9.00am to 3.00pm; and
6.1.4.Upon the Father securing leave and providing no less than five days’ notice to the Mother, the Child shall spend time with him from 9.00am to 1.00pm on any weekday that the Child is to spend time with him under this Order.

6.2.The Father may travel to the United Kingdom for up to six weeks each calendar year and during such time the Child shall spend time with the Father:
6.2.1.On the first and second days from 10.00am to 12.00pm; and
6.2.2.Each alternate day thereafter from 9.00am to 3.00pm.

7.From 1 April 2026 until 31 March 2028 (from approximately three years to five years):
7.1.The Mother shall travel with the Child to Sydney for no less than five weeks each calendar year and during such time the Child shall spend time with the Father:
7.1.1.Each Monday and Wednesday from 7.30am to 9.30am;
7.1.2.Each Friday from 3.00pm to 5.00pm;
7.1.3.Each Saturday from 2.00pm to Sunday 2.00pm; and
7.1.4.Upon the Father securing leave and providing no less than five days’ notice to the Mother, the Child shall spend time with him from 9.00am to 1.00pm on any weekday that the Child is to spend time with him under this Order.

7.2.The Father may travel to the United Kingdom for up to six weeks each calendar year and during such time the Child shall spend time with the Father:
7.2.1.On the first and second days from 10.00am to 12.00pm;
7.2.2.Each alternate day thereafter (excluding Saturday or Sunday) from 9.00am to 3.00pm; and
7.2.3.Each Saturday from 2.00pm to Sunday 2.00pm.

8.From 1 April 2028 to 31 March 2030 (from approximately five years to seven years of age):
8.1.The Mother shall travel with the Child to Sydney for no less than four weeks each calendar year and during such time the Child shall spend time with the Father:
8.1.1.For three periods of five-night blocks each, provided there is not less than three days between each block period and the Father shall provide the Mother with three weeks’ written notice nominating the block dates.

8.2.The Father may travel to the United Kingdom for up to six weeks each calendar year and during such time the Child shall spend time with the Father:
8.2.1.During school terms, as follows:
8.2.1.1.In week one (and each alternate week thereafter):
8.2.1.1.1From the conclusion of school or 4.30pm on Wednesday to before school or 9.00am on Thursday;
8.2.1.1.2From the conclusion of school or 4.30pm on Friday to before school or 9.00am on Monday;

8.2.1.2.In week two (and each alternate week thereafter):
8.2.1.2.1From the conclusion of school or 4.30pm on Wednesday to before school or 9.00am on Thursday;

8.2.2.During school holidays, for up to two periods per year of five-night blocks each, provided there is not less than five days between each block period and the Father shall provide the Mother with four weeks’ written notice nominating the block dates.

9.From 1 April 2030 until 1 April 2035 (from approximately seven years to 12 years):
9.1.The Mother shall travel with the Child to Sydney for no less than four weeks each calendar year and during such time the Child shall spend time with the Father:
9.1.1.For three periods of seven-night blocks each, provided there is not less than three days between each block period and the Father shall provide the Mother with three weeks’ written notice nominating the block dates.

9.2The Father may travel to the United Kingdom for up to six weeks each calendar year and during such time the child shall spend time with the Father:
9.2.1During school terms, in week one (and each alternate week thereafter), from the conclusion of school or 4.30pm on Wednesday to the conclusion of school or 4.30pm on the following Wednesday; and
9.2.2During school holidays, for up to one half of the school holiday period and the Father shall provide the Mother with four weeks’ written notice nominating the dates.

10.From 1 April 2035 and ongoing:
10.1.The child shall travel to Sydney each calendar year, to occur as follows:
10.1.1.In odd years, the Child shall travel for five weeks during the Child’s summer holiday in July/August; and
10.1.2.In all even years, the Child shall travel for two weeks during the Child’s Easter school holiday.

10.2.The Father may travel to the United Kingdom for up to six weeks each calendar year and during such time the child shall spend time with the Father:
10.2.1.During school terms, in week one (and each alternate week thereafter), from the conclusion of school or 4.30pm on Wednesday to the conclusion of school or 4.30pm on the following Wednesday; and
10.2.2.During the child’s Easter or Christmas school holiday, for one block of up to seven nights, and the Father shall provide the Mother with three weeks’ written notice nominating the dates, such that the child shall not spend consecutive Christmases with the Father.

Travel arrangements
11.The Mother shall arrange and pay for flights and accommodation for herself and the Child and shall ensure that her accommodation is no less than 30 minutes’ drive from the Father’s residence.
12.The Father shall arrange and pay for flights and accommodation for himself, and accommodation for the Child and shall ensure that his accommodation is no less than 30 minutes’ drive from the Mother’s residence.
13.The travelling party (or the Mother, in respect of the Child’s solo travel) shall provide no less than 60 days’ notice to the other party of the specific dates of travel pursuant to these Orders.
14.The Mother may elect to travel to Australia with the Child pursuant to Orders 5 to 10 for one block period each calendar year or up to two periods totalling four or five weeks, in accordance with these Orders.
15.The Father may elect to travel to the United Kingdon to spend time with the Child pursuant to Orders 5 to 10 for one period of six weeks or up to two periods totalling six weeks.
16.Unless otherwise agreed between the parties in writing, once the Child commences school, the Mother must ensure the trip to Sydney occurs wholly within the Child’s school holiday period, being the mid year schol holiday period which occurs from about mid July to early September each year.
17.Unless otherwise agreed between the parties in writing, once the Child commences school, in the event the Father elects to travel to the United Kingdom during school term, the Father must ensure the Child’s attendance at school and pre-scheduled/regular extracurricular activities, during the time the Child is spending with him.
18.The Mother may at her sole discretion and cost, accompany the Child during his air travel pursuant to Order 10 above or otherwise ensure that the Child is accompanied by a responsible adult, such that the Child shall not travel unaccompanied prior to attaining the age of 16 years.
19.From such time that the Child is permitted to travel as an unaccompanied minor on a national airline service, the Mother may, at her sole discretion and cost, accompany the Child during his air travel pursuant to the Order 10 above or otherwise ensure that the Child is accompanied by a responsible adult, such that the Child shall not travel unaccompanied prior to attaining the age of 16 years.
20.In the event that a party wishes to take the Child interstate or overseas during a period of time that the Child is to spend time with that party pursuant to these Orders, the travelling party must provide the other party with 30 days’ written notice, or as soon as reasonably practicable after booking, of the proposed travel together with reasonable particulars as to the destination of the travel, travel itinerary including flight or other transport details, and a contact address and telephone number on which the travelling parent and the Child may be reached.

Changeover
21.Changeover shall occur as agreed between the parties but failing agreement and except where changeover occurs at a childcare facility or at school, the Father shall collect the Child from the Mother’s residence at the commencement of the Child’s time with him and the Mother shall collect the Child from the Father’s residence at the commencement of the Child’s time with her.

General
22.Each party be at liberty to enrol the Child in extracurricular activities during the time which the Child spends with him/her respectively, with the enrolling party to be solely responsible for all costs associated therewith, and the other party shall use their best endeavours to facilitate the Child attending such extracurricular activities during the time which the Child spends with him/her.
23.Neither party shall denigrate the other party in the presence or hearing of the Child nor permit the Child to remain in the presence or hearing of any persons who engages in such conduct.
24.Each party shall ensure that the Child is permitted to communicate with the other parent by telephone or videocall at reasonable times in accordance with the Child’s wishes and shall ensure that the Child may speak to the other party in private and without distraction.
25.Unless otherwise agreed in writing, the Father shall facilitate telephone or video communication between the Mother and child each alternate day that the Child is in the Father’s care.
26.Each party shall do all acts and things and provide all necessary authorities to enable the other party to liaise directly with the Child’s medical practitioners and to receive any information they may request from time to time in relation to the Child’s health to the extent permitted by law.
27.Each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within 48 hours of such change occurring.
28.Each party shall notify the other of any serious illnesses or injuries suffered by the Child while in that party’s care as soon as reasonably practicable and shall provide reasonable particulars as to the name and contact details of the Child’s treating doctor and any hospital, medical facility or healthcare provider to which the Child has been taken.
29.Each party shall do all things, sign all documents and give all consents and authorities necessary to ensure the other party’s contact details are recorded on any school or extracurricular activity which the Child attends as both a parent and an alternate emergency contact person, and further so that the other party can obtain such information, reports, newsletters, photos and other materials from those organisations.
30.The Mother shall faciliate video calls between the Father and the Child, no less than twice per week at such times to be agreed between the parties in writing and taking into account the Child’s routine and developmental age.
31.Each Friday the Mother shall send an email to the Father providing him with an update in respect of the Child, including but not limited to details of the Child’s health, developmental progress, social activities, education (if applicable) and providing photos.
32.Each parent is at liberty to attend all and any school functions and/or extra-curricular activities that parents are in the normal course invited to attend, irrespective of with whom the Child is living on that day.
33.For the purposes of these Orders, until the Child reaches the age of three years, the Father must be present at all times during his time with the Child pursuant to these Orders. In the event the Father is not available to care for the Child pursuant to these Orders, he must provide the Mother with no less than one day’s notice that he is unavailable.

Registration of Orders in the United Kingdom
34.Within eight weeks from the date that the Mother relocates to the United Kingdom with the Child, both parties must do all acts and things and sign all documents necessary to use their best endeavours to have these Orders registered in the United Kingdom and/or reciprocal parenting orders made in the United Kingdom in respect of the parenting of the Child.
35.The Mother’s application for spousal maintenance is dismissed.

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

The applicant father (“father”) and the respondent mother (“mother”) are the parents of X (“child”), who is one year old.
The parties agree that there should be an order for equal shared parental responsibility, and that the child’s primary care will remain with his mother. The parties also reached agreement as to the child’s name. The primary issue for determination is the mother’s wish to relocate the child’s residence from Australia to the United Kingdom (“UK”). The father opposes the relocation.

In the event relocation is refused, the mother will remain in Australia with the child. In the event relocation is granted, the father has given evidence that he will not move to the UK.
The parties agree about the spend time arrangements between the child and the father in the event that relocation is granted (Exhibit 1).
At the commencement of the hearing, the mother and father were at issue as to the time arrangements which would apply in the event relocation is refused. The ICL did not have a concluded view at the commencement of the hearing. By submissions, the ICL proposed a Minute of Order (Exhibit 34). The ICL opposed relocation. The father’s senior counsel indicated that the father agreed with the time arrangements proposed by the ICL.
In the event the mother is required to stay in Australia she seeks, and the father offers to pay, spousal maintenance. The parties are at issue as to the quantum that should be paid. The mother does not seek spousal maintenance in the event relocation is granted.
BACKGROUND AND PROCEDURAL HISTORY
The mother was born in 1986 in the UK and is currently 37 years old. The father was born in 1988 in Australia and is currently 35 years old.
The mother moved to Australia for work-related reasons in 2011. She is now a dual citizen of Australia and the UK. The father is an Australian citizen.
The parties commenced cohabitation in March 2022, and separated on 9 August 2023. This was a relationship of about one and a half years. There is one child of the relationship, born 2023. The mother has been the child’s primary carer since his birth.
According to the mother, in 2022, shortly after she fell pregnant, the parties discussed the child’s surname. The mother said that she told the father that if they were not married by the birth, she wanted the child to have her surname. The issue and conflict over the child’s surname assumed unwarranted significance in the parties’ affidavits, particularly in circumstances where they ultimately reached agreement about the name on the first day of the hearing.
In 2023, in anticipation of the birth of the child, the maternal grandparents travelled from the UK and lived with the parties in Sydney.
Following the child’s birth, the extent of the father’s assistance became a point of conflict. In essence, the mother felt unsupported and unassisted, while the father felt excluded. In that respect the father said that the mother rarely asked him for help with the child. He deposed that:
93.…This was not due to an unwillingness to help on my part however it did align with my expectation that I would be responsible for income-earning and [Ms Kerrane] would primarily be responsible for [X’s] care.
94.As [Ms Kerrane’s] parents were present, they regularly assisted with [X’s] care.
95. There were many occasions where [Ms Kerrane’s] parents assisted and I wanted to assist more, but I did not feel it was my place to intervene when [Ms Kerrane] had not asked for my help, particularly as a novice parent compared to [Ms Kerrane’s] mother who is a [healthcare professional].
…
97. From reading [Ms Kerrane’s] evidence in these proceedings, I now understand that [Ms Kerrane] needed more from me. Perhaps she did not know how to ask me, or perhaps I was not listening or understanding.
98. I take responsibility for not being more attuned to [Ms Kerrane’s] needs. I am very sorry that she felt unsupported by me during [X’s] early life.
99. For my part, I felt like my role as [X’s] father was undermined by the constant presence of [Ms Kerrane’s] parents.
(Affidavit of the father filed 28 February 2024, paragraphs 93-95 and 97-99)
The father took paternal leave for a period of 10 days in 2023. The mother deposed that the father did not take the full allotment of leave available to him. The father deposed that it was “not easy” for him to take leave, and that he was only entitled to one week of paid paternal leave (Affidavit of the father filed 28 February 2024, paragraph 78). While he accepted that he may have been able to take additional unpaid leave, he said this possibility was not discussed. The issue about the extent or otherwise of the father’s assistance after the child’s birth has led to the perception, on behalf of the mother, that the father is an unreliable parent. I am satisfied, given the concessions by the father, that he was not as available as he should have been and that he at times prioritised his work, and that the mother’s perception has some validity.
According to the mother, in 2023, her parents told her they needed to return to the UK. The following day, the mother said she spoke to the father and asked for his consent to return to the UK with the child and her parents, as she was concerned about the lack of support she would have without them. The mother said that the father agreed, and told her he intended to take two weeks of leave to visit her and the child later in 2023. The maternal grandparents subsequently extended their visit to Australia until the following month, to assist with the care of the child until the mother travelled to the UK.
According to the father, in 2023, the mother told him that she wished to live in the UK with her parents, for a few months of 2023. The father deposed that he initially refused this request, saying “I can’t be away from you and [X] for that long!”. When the mother told him that she really needed her parents’ support, he told her: “But I am here for you, and we really need to spend time alone as a family”, to which the mother responded: “No. I want to go” (Affidavit of the father, paragraph 107). The father deposed that several days later, he agreed to the mother’s request, and the mother then told him she had already booked the flight tickets for her and the child to depart.
In 2023, the mother, the child, and the maternal grandparents travelled to the UK.
The following month, the father travelled to the UK and spent time with the mother and the child.
In mid-2023, the mother and the child returned to Australia, and the mother told the father that she wished to separate and return to the UK with the child. According to the mother, the father initially agreed with the mother’s proposal (Affidavit of the mother filed 19 January 2024, paragraphs 116–118). According to the father, he did not expressly agree to the mother returning to the UK with the child on a permanent basis (Affidavit of the father filed 28 February 2024, paragraph 124).
The father deposed that before the separation, he spent time alone with the child around five times, for not more than 30 minutes on each occasion, when he took the child for walks (Affidavit of the father filed 28 February 2024, paragraph 89).
The mother said that in mid-2023, upon the father’s return from work, he told the mother “I need uninterrupted sleep. Unless you really need my help, you need to be responsible for [X] at night” (Affidavit of the mother filed 19 January 2024, paragraph 142). The mother deposed that the father did not assist her with the child’s care at night, and she stayed up for hours to feed him and settle him back to sleep. The father deposed that due to his recent promotion to a senior role he felt, and continues to feel, significant pressure to meet and exceed expectations to ensure his job security (Affidavit of the father filed 28 February 2024, paragraphs 82–84).
The father outlined that his performance ratings for 2022 and 2023 were “Exceeding Expectations” (Affidavit of the father filed 28 February 2024, paragraph 80). He further deposed that:
82. [Ms Kerrane’s] work involves shifts. The shift starts at a certain time and ends at a certain time…
83. My work is not like that. There is a certain amount of work to be completed. Although there are official hours of work, if one wants to perform well, they must ensure that all work is completed even if it is beyond those hours. Given my current job uncertainty, it is important to me that I am performing to a high level.
84. It is now clear to me that there was a mismatch in expectations between [Ms Kerrane] and I regarding my involvement [X’s] care after his birth.
(Affidavit of the father filed 28 February 2024)
In mid-2023, the maternal grandparents returned to Australia to support the mother and the child.
The mother gave evidence that on the following day, the father sent her a text message asking her to confirm the date she was returning to the UK so that he could “take the prior day off as well” (Affidavit of the mother filed 19 January 2024, paragraph 122).
On 18 August 2023, the father commenced these proceedings seeking urgent interim orders which included placing the child on the Family Law Watchlist.
The application and the Family Law Watchlist order was without notice to the mother, and contrary to the father’s previous agreement that she could return, at least temporarily, to the UK.
The mother deposed that she saw her GP on 28 August 2023, who diagnosed her with “what is likely an Adjustment Disorder with Mixed Anxiety and depressed mood” (Affidavit of the mother filed 19 January 2024, paragraph 290).
The mother offered the father the opportunity to see the child on Father’s Day, but he did not agree. The mother said she video called the father on Father’s Day but he did not answer. She deposed that she then took a video of the child holding a gift and sent the video to the father, but he did not acknowledge it.
According to the mother, between 2 September 2023 and 1 October 2023, she offered to facilitate time between the father and the child 17 times. The mother said that the father spent time with the child on five occasions.
On 4 September 2023, the mother started attending upon a psychologist (“Mother’s Psychologist”).
According to the mother on 15 September 2023, the father, without notice to her, emailed the landlord of the former matrimonial home, terminating the lease and requesting the return of his share of the rental bond. The mother deposed that she did not have alternate accommodation, was unemployed, and had sold most of her furniture, whitegoods, and household items.
On 16 September 2023, the father spent time with the child for the first time since he left the former matrimonial home on 21 August 2023.
On 20 September 2023, the father asked the mother to facilitate time with the child that afternoon. The mother deposed that she asked the father to come to the former matrimonial home no later than 4.00pm, given the child’s routine. The father responded that “4pm is the earliest I can leave work” (Affidavit of the mother filed 19 January 2024, paragraph 160).
The father started to pay $450 per week in child support to the mother from 20 September 2023, pursuant to an informal arrangement.
On 11 October 2023, following a contested interim hearing, the Court made orders permitting the mother to travel to the United Kingdom with the child pending the final hearing (“October 2023 Orders”). The Court also allocated final hearing dates commencing 11 March 2024, and appointed an ICL and single expert by consent. The October 2023 Orders permitted the mother to return to the UK pending the final hearing, provided she return the child to Australia by no later than 1 February 2024. The October 2023 Orders also set out interim arrangements for the father to spend time with the child in the UK.
The mother said that between 11 October 2023 and 13 November 2023, the father spent time with the child on two occasions in the morning, despite the October 2023 Orders providing for him to spend time with the child each Wednesday and Thursday morning. According to the mother, on the morning of Thursday 12 October 2023, the father did not spend time with the child, and requested that the mother bring the child to his workplace so that he could spend time with the child during his lunch break. The mother outlined that the father also did not spend time with the child the following Wednesday 18 October 2023 or Thursday 19 October 2023.
The father deposed that the October 2023 Orders were different to the orders that he proposed, and were not reasonably practicable for him because of his work commitments, and said that he spent as much time with the child as he could, including during his lunch breaks.
In late 2023, the maternal grandfather returned to the UK. A few days later, the maternal grandmother arrived in Australia to stay with the mother.
Two days later, the maternal grandmother, mother, and the child travelled to the UK together. The mother and the child lived with the maternal grandparents in the UK. According to the mother, between 15 November 2023 and 15 January 2024, she facilitated 27 FaceTime calls between the father and the child. The mother deposed that on 23 December 2023, she invited the father to include his family members during his FaceTime call with the child on Christmas Day, but he declined.
In early 2024, the father travelled to the UK and spent time with the child.
In early 2024, the mother and the child returned to Australia.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
(1)Amended Initiating Application filed 18 January 2024;
(2)Affidavit of the father filed 28 February 2024;
(3)Affidavit of Ms C filed 4 October 2023;
(4)Financial Statement of the father filed 1 February 2024; and
(5)Case Outline filed 4 March 2024.
The mother relied upon the following documents:
(1)Amended Response filed 19 January 2024;
(2)Affidavit of the mother filed 19 January 2024;
(3)Affidavit of Ms D filed 19 January 2024;
(4)Affidavit of Mr G filed 19 January 2024;
(5)Affidavit of Dr E filed 4 October 2023;
(6)Affidavit of Ms H filed 19 January 2024;
(7)Financial Statement of the mother filed 29 February 2024; and
(8)Case Outline filed 4 March 2024.
All parties referenced the various single expert reports. Dr J (“Single Expert Psychiatrist”) opined as to the mother’s mental health, Mr K, a UK solicitor, gave evidence as to the visas available to the father should he live in the UK (“UK Visa Expert”), Mr L gave evidence as to the visas available to the mother’s parents should they travel to Australia and Mr M prepared a Family Report (“Family Report Writer”).
The mother and father were cross-examined, as were the mother’s parents, the Single Expert Psychiatrist, and the Family Report Writer.
EVIDENCE OF THE FAMILY REPORT WRITER
I have carefully read the report of the Family Report Writer and listened closely to his oral evidence in cross-examination. There was no challenge to his expertise or experience. Having read the Family Report and watched him give his evidence, I am satisfied he has a comprehensive understanding of the issues, and insight into the problems raised by the parties. The report and his oral evidence were considered and insightful.
The Family Report, under the headings of “Developmental Issues in Relocation Cases Involving Young Children” and “The Importance of Maintaining Parent-Child Relationships”, focused on the implications of relocation for a young child, and the importance of parent child attachment. The Family Report Writer stated:
71.Infants and toddlers need regular interaction with their attachment figures to foster, maintain and strengthen their relationship to their attachment figures. …The loss of continuation of important attachment relationships has been found to correlate with depression and anxiety and especially if it occurs within the first 2 years of life when children do not have the cognitive and communication skills that would help them to otherwise cope with the loss...
72. From a purely developmental perspective, the task during the attachment stage is to make sure that a once trusted attachment figure does not become a stranger to a young child and that their relationship with the child is perpetuated. For children who have that connection to one parent ruptured by relocation, it can be difficult to re-establish a relationship with that parent.
…
75....Furthermore, increased paternal involvement has been found to associate with improved school performance, better grades, improved behaviour, and lower long-term school dropout. Children who have both parents involved in their lives, regardless of their parents’ relationship status, are found to be as well-adjusted as children whose families remain intact; children are better adjusted when they enjoy warm, positive relationships with two actively involved parents, regardless of their parents’ relationship status.
76. Research shows that children deprived of a meaningful relationship with one of their parents are at greater risk of having problems, even when they maintain a relationship with the other parent and so the emphasis on trying to maintain connections, not sever them (Amato, 2000). There is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain a relationship with both parents and their respective extended families, regardless of whether or not their parents live together...
77.Relocation creates challenges when dealing with such young children. Attachments are much more fragile in the early phases of their formation and so young children are much more vulnerable to disruption to the attachment formation process and the consolidation of this process. Consequently, when considering the potential psychological risk associated with relocation it is important to consider the child's age, the phase of attachment when the non-moving parent has been involved in the parenting, even if that parent has had limited time in the child's life since the separation. In their seminal paper, Joan Kelly and Michael Lamb (2003) write “…. It would be ideal if divorced parents wishing to relocate could be persuaded to wait until the child has attained the age of 2 or 3 years because they would then be better equipped with the cognitive and language skills necessary when formidable distant separate them from one of their parents.”
(Footnotes omitted, italics in original)
(Family Report dated 26 February 2024, p.31)
Under the heading “Conclusions” the Family Report Writer stated:
79.…The frank reality is that relocation changes the relationship between the child and the non-moving parent, and that the impact of that change, and the enduring nature or the mitigation of the impact of that change depends largely on the age and developmental stage of the child; from a social science research perspective, children do better when their parents are complimentarily involved in their lives, and when children have access to their extended family on both sides, and especially so in their early lives.
(Family Report dated 26 February 2024, p.32)
The Family Report Writer recorded, in relation to the mother:
83.[Ms Kerrane’s] motivation seemed genuine, her proposal conveyed at least the intent to maintain a positive gatekeeping attitude, her intention seemed sincere to foster a positive relationship, to actively include and have [Mr Davin] involved, to foster for [X] as positive a relationship with his father as possible, with the understanding that to do so would be in [X’s] best interest.
(Family Report dated 26 February 2024, p.33)
After discussing the mother’s proposals, the Family Report Writer recorded:
85.Well-intentioned and well motivated as [Ms Kerrane’s] position is, from purely a developmental perspective, it is more likely, not less likely that [X] will struggle to maintain a relationship with his father, that he will not be able to develop and consolidated a secure attachment to him, that efforts at visitation are likely to confront significant resistance from [X], who because of the absences and because of the attachment nature and process, is likely to see his father as a stranger, and it is very unlikely, and likely certain, that [X] will not be able to spend time with his father without his mother present; if [X] is forced to go into his care after a period of absence in the attempt to develop and foster a relationship, and especially in the first 2-3 years, not only is he likely to be extremely distressed and anxious, he is extremely likely to show the distress associated with such a young children placed in the care of a stranger; for [X], it will not be possible for his father to be someone other than a stranger. It is likely that in this situation, upon his return to his mother, he is likely to be clingy and regressed in the extreme.
(Family Report dated 26 February 2024, p.34)

Addressing the alternative to relocation, the Family Report Writer recorded:
91.An alternative may be to recognise that [X’s] current difficulties will likely improve with the passage of time, that he will not always be as disrupted with his sleep, that he will not always be as burdensome upon a single parent, that he will grow, that he will mature, that his difficulties will lessen, that he will establish for himself a routine, he will go to child care, kindergarten and Primary School, and at some point in the hopefully not distant future that his development will equalize.
(Family Report dated 26 February 2024, p.36)
The Family Report Writer addressed a hybrid of the two alternatives, where the relocation would be postponed for a period of time. None of the parties proposed this as an alternative. To adopt this proposal would (albeit that it was raised by the Family Report Writer) require, as a matter of procedural fairness, notice to the parties and invite submissions. It is a proposal that has the potential to further the litigation rather than bring it to an end. Where no party advocated for such a proposal, I do not propose to address it further.
I accept the Family Report Writer’s evidence that a relocation to the UK will mean that the child will not develop the strength of a relationship with the father that he would have if he remained in Australia and, no matter how well intentioned the mother is, an attachment relationship could not be replicated in the way it would have developed if the child remained in Australia.
However, as the High Court reminds, while the best interests of the child is the paramount consideration, it is not the only consideration (Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293).
EVIDENCE OF THE MOTHER’S PSYCHOLOGIST
The mother attended upon her psychologist on nine occasions.
The mother’s Psychologist recorded in her report:
Throughout the initial sessions, it was established that [Ms Kerrane’s] primary source of anxiety was the potential outcome of the court proceedings effecting her relationship with [X], and ultimately [X’s] current and future wellbeing being at risk of harm and detriment. I observed marked symptoms of generalised anxiety, depressive, and adjustment concerns. However, throughout my assessments of [Ms Kerrane], I did not believe she met the full criteria for a specified DSM-V (TR) disorder. It appeared that her distress was proportionate to the severity and intensity of the stressors she was facing. [Ms Kerrane’s] protective factors include her close and supportive relationship with her parents, her relationship with [X], personal strengths including intelligence and resilience as demonstrated through her academic and career achievements […], and hope for her desired legal outcomes.
…
I am concerned about [Ms Kerrane’s] emotional wellbeing if she is required to live in Australia without the support of her parents. [Ms Kerrane] has demonstrated great understanding and application of therapeutic techniques with the aim to reduce her distress through increased resilience and flexibility. However, she continues to have difficulty accepting the reality of her life if she was to move permanently to Australia, and reverts to rumination and maladaptive thinking patterns which trigger high emotionality and anxiety. Her ability to utilise techniques developed in treatment, has been observably more achievable when [Ms Kerrane] has access to additional supports such as her parents. [Ms Kerrane] will require ongoing and intensive support to assist her emotional, physical, occupational, and parental adjustment if this is the outcome. She would benefit from engaging in a peer support group for mothers such as one offered by organisation ‘[N Organisation]’. In addition to her treatment, [Ms Kerrane] may benefit from engaging in specialist child and family psychology services to assist her adjustment, problem-solving and conflict management skills.
(Report of the Mother’s Psychologist, 9 January 2024, p.2)
The mother’s Psychologist was not cross-examined and I accept her evidence.
EVIDENCE OF THE SINGLE EXPERT PSYCHIATRIST
The Single Expert Psychiatrist is a Child, Adolescent, and Adult Psychiatrist who was retained by the parties as a single expert to opine as to the effect on the mother’s mental health if the child was not permitted to relocate.
In his report, the Single Expert Psychiatrist recorded the mother’s answer to his question about how she would respond if she were not permitted to return to the UK:
…[Ms Kerrane] began to cry profusely. [Ms Kerrane] described feeling like she was "drowning". [Ms Kerrane] explained "there is no one to help me in Australia ... the idea of being with [X] on my own without any support ... I don't have a home in Australia". [Ms Kerrane] described that she felt she had only been able to cope parenting [X] in Australia with the day-to-day support of her parents. [Ms Kerrane] stated that it was not possible for her parents to move to Australia on a permanent basis. [Ms Kerrane] repeatedly reiterated that she had no support in Australia. She noted that [Mr Davin] had provided minimal hands-on support to her following the birth of [X] and [Ms Kerrane] explained that even this minimal support would now be reduced as she and [Mr Davin] were no longer in a romantic relationship. [Ms Kerrane] added that she and [Mr Davin] would now "talk minimally" and only "focus on how [X] has been". [Ms Kerrane] described most decision making with [Mr Davin] regarding [X] as challenging and often contentious.
(Report of the Single Expert Psychiatrist dated 10 January 2024, p. 4)
The Single Expert Psychiatrist spoke to the Mother’s Psychologist and recorded:
[Ms H] noted that in her opinion [Ms Kerrane] would be at risk of experiencing a deterioration in her mental state if she were to be forced to relocate to Australia and thus lose the regular support of her parents. [Ms H] noted that she had observed [Ms Kerrane] to become overwhelmed when discussing the ongoing Family Court dispute.
[Ms H] stated that despite observing [Ms Kerrane] in distress, she had never "questioned or doubted her desire and ability to care for [X]". [Ms H] observed that while [Ms Kerrane] could initially demonstrate cognitive rigidity when anxious, that [Ms Kerrane] could be "flexible when coached through things".
(Report of the Single Expert Psychiatrist dated 10 January 2024, p. 14)
The Single Expert Psychiatrist’s ultimate opinion was:
In my opinion [Ms Kerrane] does not currently meet criteria for a diagnosable mental health disorder per the Diagnostic and Statistical Manual of Mental Disorders (DSM‑5). [Ms Kerrane’s] symptoms during her period of separation from [Mr Davin] prior to her return to the United Kingdom may have met diagnostic criteria for adjustment disorder with depressed mood and anxiety however I cannot make a definitive diagnosis in retrospect.
With regard to [Ms Kerrane’s] future mental health, [Ms Kerrane] has several positive prognostic factors including a willingness to engage in psychological treatment and significant resilience as demonstrated by her successful career in a high stress profession prior to the birth of [X]. However, Dr [Ms Kerrane’s] post-natal period has been characterised by challenges with anxiety and low mood. Additionally, [Ms Kerrane] described being highly reliant on the practical and emotional support of her parents to cope with motherhood. [Ms Kerrane] described minimal faith in her ability cope with the demands of single parenthood without the support of her parents, as she would be required to do should the Court rule that [X] is to remain in Australia. [Ms Kerrane] demonstrated a high level of emotional distress at even discussing the prospect of again living in Australia, with [Ms Kerrane] crying profusely on multiple occasions during the assessment when this was raised.
As such in my opinion it is likely that [Ms Kerrane] would experience intensifying feelings of anxiety and low mood if she was forced to return to Australia. I note that [Ms Kerrane’s] financial situation would also necessitate her returning to work as [a healthcare professional] in Australia, a job with a high level of stress that may lead to a further deterioration of [Ms Kerrane’s] mental health.
Hence in my opinion, [Ms Kerrane’s] psychological health would likely deteriorate significantly in the short-term if she returned to live in Australia as compared to if she stayed living in the United Kingdom with [X] and the support of her parents. [Ms Kerrane’s] longer-term prognosis if she returned to live in Australia is speculative and would likely depend on a multitude of factors including [X’s] developmental trajectory, [Ms Kerrane’s] ability to form social supports in Australia, and her employment conditions.
(Report of the Single Expert Psychiatrist dated 10 January 2024, p.16)
During cross-examination the Single Expert Psychiatrist agreed with senior counsel for the father that the main cause of the mother’s generalised anxiety is the ongoing legal process and the stress associated with the prospect of having to live in Australia without adequate support. He agreed that the mother’s future prognosis had a number of positive factors, given her willingness to engage in treatment and the strength of her therapeutic relationship, but made clear that professional support could not replace family support. The Single Expert Psychiatrist agreed that the short-term distress of the mother could be measured in months but conceded that no-one could predict how she would be in a year’s time. He agreed that it would be significantly difficult for the mother if she is required to live in Australia. He could not say for certain that the mother would cope and manage, and opined that while there are positive prognostic factors, he was uncertain about what her future will be in the long-term if she remained in Australia.
Senior counsel for the mother took the Single Expert Psychiatrist through those parts of his report where he had recorded the mother crying profusely when describing how she would respond if the Court said she had to stay in Australia, and her statement that she felt she was “drowning” (Report of the Single Expert Psychiatrist dated 10 January 2024, p.4). He agreed that the mother had a very deep-seated distress, and that there was a potential that this would interfere with her emotional regulation moving forward. He agreed that the mother felt highly fearful and overwhelmed, and gave evidence that this was a debilitating state for a person to be in.
In his report, the Single Expert Psychiatrist opined:
Hence in my opinion, [Ms Kerrane’s] psychological health would likely deteriorate significantly in the short-term if she returned to live in Australia as compared to if she stayed living in the United Kingdom with [X] and the support of her parents.
(Report of the Single Expert Psychiatrist dated 10 January 2024, p.16)
The Single Expert Psychiatrist was asked, in cross-examination, what he meant by the word “significantly” in the paragraph of his report, extracted above. He responded that it would be a meaningful change to the mother from a subjective point of view, and one which would be observable by any mental health professional who interacted with her. He agreed that an increase in the mother’s distress could lead to her not functioning adequately. He said it was possible that it could affect her parenting. He agreed there was the potential, if the mother’s feelings of drowning did not ameliorate, that her distress could go on indefinitely.
SUBMISSIONS OF THE ICL
The ICL did not support the mother’s application to relocate. His counsel submitted that the next few years of the child’s life are critical to forming an attachment with the father. His counsel referenced the Family Report, where the Family Report Writer reported as follows:
71.…The loss of continuation of important attachment relationships has been found to correlate with depression and anxiety and especially if it occurs within the first 2 years of life when children do not have the cognitive and communication skills that would help them to otherwise cope with the loss.
…
72.From a purely developmental perspective, the task during the attachment stage is to make sure that a once trusted attachment figure does not become a stranger to a young child and that their relationship with the child is perpetuated. For children who have that connection to one parent ruptured by relocation, it can be difficult to re-establish a relationship with that parent.
(Family Report dated 26 February 2024, p.29)
The ICL’s counsel submitted the father needed to step up to assist the mother and maintain a relationship with the child that is consistent with the orders that he promoted. He submitted that the father had agreed that he had made some mistakes but has changed and learnt from those experiences, and that the Court should accept that evidence. The ICL’s counsel submitted that while it was a finely balanced case, the issue of the child’s attachment to the father was the single most important issue. The ICL’s counsel submitted that the short-term distress that would be suffered by the mother was outweighed by the necessity for the child to form an attachment relationship with the father.
The ICL’s counsel submitted that if the relocation was permitted, the mother’s commitment to ensuring the maintenance of a relationship between the child and the father was going to be insufficient to foster the kind of attachment relationship that is necessary to enable a meaningful relationship. He reiterated the evidence of the Family Report Writer that “efforts to maintain connection to his father in the manner proposed by her is likely to be stressful, generate significant anxiety, and not be successful” (Family Report dated 26 February 2024, paragraph 100, p.39).
SUBMISSIONS OF THE MOTHER
The mother’s senior counsel relied upon his Case Outline and asked the Court to conclude that the orders proposed by the father were coercive, in circumstances where the mother is the undisputed primary carer and the child would not be spending any overnight time with the father for at least three years according to the parties’ respective proposals (Case Outline of the mother filed 4 March 2024, p.44, and Exhibit 34, Minute of Orders proposed by the ICL and adopted by the father).
The mother’s senior counsel submitted that coercive orders of the type proposed by the father should only be made in extreme circumstances. He submitted that the psychological welfare of the primary carer is inextricably bound up with the psychological welfare of the child; and that if the mother were to remain in Australia, her psychological health would be significantly compromised. He submitted that it was uncontroversial that the mother would suffer a psychological detriment: the question was the duration of such detriment. He submitted that it could only be speculation to assert that there would be an improvement in the mother’s mental health after a period of months.
Senior counsel for the mother emphasised that the stressors included not just the court case, but the prospect of remaining in Australia without adequate parental support. He submitted that professional therapeutic support and/or support provided to the mother by carers and nannies could not replace the significance and importance of the support of the maternal grandparents. He submitted that the mother was highly overwhelmed, smothered, and fearful. He further submitted that the mother’s level of anxiety was observable during the court hearing. Senior counsel for the mother also submitted that the mother’s own assessment, that she felt like she was drowning, meant that she had minimal faith in her own parental capacity while she remained in Australia as the primary carer for the child.
Senior counsel for the mother submitted that it was the mother’s lived reality that she had received support from her parents, and that the mother was panicked that they would not be available to her long-term. He submitted that the mother felt burdened by having to ask her parents for support, and that addressing this issue was not simply a matter of replacing one form of support with another. Senior counsel for the mother submitted the father was an unreliable source of support. In that respect, he evidenced the minimal support offered by the orders the father proposed, and the lack of generosity evidenced in the father’s financial proposals in describing various expenses of the mother as “patently unreasonable”, only to resile from some of those propositions during cross-examination (Case Outline of the father filed 4 March 2024, p.8).
Senior counsel for the mother submitted that the father’s evidence in answer to questions from the ICL, namely that he could not guarantee he would answer a phone call at night if the mother called, only underscored his unreliability. He submitted there was ample evidence the father had prioritised his work. Senior counsel for the mother referenced examples of the father’s conduct even after the mother returned from the UK shortly before the final hearing, which he submitted demonstrated that the father could not bring himself to spend court-ordered time with the child. He submitted that the Court should view the father as disingenuous when he said he would provide support. He further submitted that the father’s family have not offered, at any time, assistance with the care of the child, nor have they reached out to the mother to offer support, should she stay in Australia.
Senior counsel for the mother submitted that there were numerous instances since the child’s birth which indicated the father was not committed to supporting the mother, including when: he only spent two nights in the hospital following the birth; his inability to change his work routine to assist the mother in caring for the child; his refusal to engage in mediation, contending he was too busy at work; his failure to spend any time with the child between 21 August 2023 and 16 September 2023; his failure to engage with the child on Father’s Day in person or by video call; and his refusal to accept the mother’s offer to meet the child at a park. These and other instances, so it was submitted, were examples of the father prioritising his work over his relationship with the child and, consequently, the Court could have no confidence that the father would change and be a source of support for the mother in Australia.
SUBMISSIONS OF THE FATHER
Senior counsel for the father submitted that there was no evidence that any emotional distress the mother may suffer by remaining in Australia would impact the child. She submitted that the Family Report Writer did not say that the mother’s parenting capacity would be compromised, and further submitted that he opined that even compromised parents can be “good enough” to provide support to a child. The father’s senior counsel referred to the Single Expert Psychiatrist’s conversations with the Mother’s Psychologist, which he recorded in his report as follows:
[Ms H] stated that despite observing [Ms Kerrane] in distress, she had never "questioned or doubted her desire and ability to care for [X]". [Ms H] observed that while [Ms Kerrane] could initially demonstrate cognitive rigidity when anxious, that [Ms Kerrane] could be "flexible when coached through things”.
(Report of the Single Expert Psychiatrist dated 10 January 2024, p.14)
Senior counsel for the father placed considerable emphasis on that statement, contending that all the evidence demonstrates that the child is well cared for by the mother and the child’s welfare has not been compromised by the mother’s distress.
Senior counsel for the father submitted that the mother had maintained a good relationship with her parents prior to the birth of the child, even though she did not see them frequently, and that there was no reason to believe that the maternal grandparents would not continue to provide support to her, even if it was of a lesser duration than the support provided to date.

Senior counsel for the father submitted that, in circumstances where all parties proposed there be an order for equal shared parental responsibility, the Court needed to consider whether the orders proposed by each party were reasonably practicable. She submitted the only orders that could be described as reasonably practicable were those proposed by the father and the ICL.
Senior counsel for the father submitted that the mother was an Australian citizen, had employment prospects in Australia, had lived in Australia since 2011, and had a professional life and friendship base in Australia. Senior counsel for the father contended that this is to be compared with the father, who is not a UK citizen, has no friends or family in the UK, and no work. She submitted that the orders proposed by the mother are, therefore, not reasonably practicable. Senior counsel for the father submitted that the orders sought by the father are not coercive; he is merely asking for the mother to be the child’s primary carer in Sydney.
Senior counsel for the father further submitted that many of the matters relied upon by the mother’s senior counsel as reflecting poorly on the father need to be seen within the context of: the father’s shock following the parties’ separation; the father recognising the error of his ways on a number of occasions; and the father’s evidence that he would now act differently. Senior counsel for the father relied on Exhibits 27, 28, 29, and 30 which, she submitted, when properly analysed demonstrated that many of the criticisms of the father were not borne out by the evidence. In particular, senior counsel for the father referred to: the criticism of the father that he did not attend a parenting service in October 2023, in circumstances where the mother emailed him advising that time would not be available; and the events surrounding the child’s surname, in circumstances where the father was suddenly confronted with the position that the child’s christening was to take place much earlier than had been envisaged.
Senior counsel for the father submitted that the father is available to assist the mother; that the evidence of the Family Report Writer is that the child will be unable to maintain a meaningful relationship with his father if there is a relocation; and that the child’s best interests are served by the child remaining in Australia. Senior counsel for the father said that under the father’s proposal, the mother will have the opportunity to return to the UK for up to three months in a year.
THE PARTIES’ EVIDENCE, THE ISSUES THEY RAISE FOR DETERMINATION, AND THE ADVANTAGES AND DISADVANTAGES OF EACH PROPOSAL
Each of the parties were cross-examined. Each found the cross-examination a gruelling and unpleasant experience. The mother was visibly distressed throughout much of the hearing.
I have no doubt that they both gave truthful evidence. As a consequence of events that have transpired since the birth of the child, they have each formed opinions that have affected their perceptions and judgement of the other parent, and undermined the confidence and trust they might once have had in each other.
Some events have assumed overblown importance and, seen through the eyes of an outside observer, did not deserve the significance they were, or are still, given. One such example is the conflict over the child’s surname.
The Family Report Writer recorded early in the Family Report, in relation to the mother:
2.[Ms Kerrane] wants to be allowed to relocate; she maintains that she needs significantly more help than [Mr Davin] is able or willing to provide, that [X] is a boy who has had significant problems in his early life, including a tongue-tie, trouble breast feeding, and difficulty establishing a routine, waking in the early hours, and being difficult to settle. According to [Ms Kerrane], had it not been for the support of her parents she would have been unable to care for either herself or [X]. It was whilst in the UK she came to the realisation that [Mr Davin] was unable to place her or [X’s] needs ahead of his own, that the history showed that he pursued his own lifestyle and routines to the exclusion of them, and that notwithstanding her desperation that he step up and provide more support and assistance, his inability or refusal to do so confronted her with the reality that the situation would not change.
(Family Report dated 26 February 2024, p.2)
While in relation to the father, the Family Report Writer stated:
3.[Mr Davin] maintains that should [X] be allowed to relocate, that in the very best of circumstances, he will be nonetheless relegated to the periphery of [X’s] life. He opposes the relocation, and instead suggested that he would provide extra financial support, physical support, assist with travel arrangements for the maternal grandparents and even support [Ms Kerrane] returning to the UK for blocks of time to assist her through this initial stressful period. He described [Ms Kerrane] as an extremely competent, capable person, who shows resilience in other areas of her life to access support and assistance, but who was also single minded and determined to pursue her own goals. [Mr Davin] emphasised that in [X’s] short life, he and [Ms Kerrane] only lived together as a nuclear family for 2 weeks, and that whilst he was looking forward to their return to establish their family without the presence of others, that [Ms Kerrane] had already made the decision to leave and once decided, there was no turning back. [Mr Davin] does not agree with portrayal of him by [Ms Kerrane] but does agree that much of the time that [Ms Kerrane’s] parents were in Australia, they did offer support, and that much of what needed to be done had already been done by them by the time he returned from work. He does not agree with her portrayal of him.
(Family Report dated 26 February 2024, p.2–3)
Issues of trust and its breach resonated throughout the evidence. Amongst a number of issues was the mother’s grievance about the father raising, at the time of the child’s birth, the issue of his surname which she understood had been agreed; and her dismay that the father sought a Family Law Watchlist order and did not tell her, where he had previously agreed to the mother and the child travelling to the UK. The latter event was expressed using the language of deception. Similarly, the father described to the Family Report Writer the mother’s announcement to him that she wanted to separate and return to the UK immediately upon her arrival in Australia in mid-2023. This also was presented through the prism of deception.
The parties are both good people who want the best for their child, but irreconcilably differ as to how that can be achieved. While both expressed a desire to cooperatively parent moving forward, I am less confident that can be achieved. The Family Report Writer recorded that the mother is yet to “emotionally heal” from her perception of the father’s actions, while the father expressed to him that the mother’s and the maternal grandparents’ affidavits were:
28.… conveying a litany of criticism about him and his family. He described [Ms Kerrane’s] 75 Page affidavit as a negative critique of him that focused and highlighted his every mistake and every shortcoming since 2020...
(Family Report dated 26 February 2024, p.13)
The hurt that both express will take some significant time to heal, and will no doubt be amplified for one of them by the orders I make.
Due to the positions of each party being reframed in the manner referred to earlier, it seems the primary issue for determination is a binary one, namely:
(1)Whether it is in the child’s best interests to live in Australia in the primary care of the mother, with an agreed regimen of time with the father until at least the age of eight (save for school holiday time); or
(2)Whether it is in the child’s best interests to live in the UK in the primary care of the mother, with an agreed regimen of time with the father.
Each of the proposals has advantages and disadvantages, and I will address those below.
In relation to the mother’s desire to live in the UK, the Court has an obligation to explore and consider her right to freedom of movement 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)
The mother is the undisputed primary carer of the child. I am satisfied that her desire to live in the UK is entirely legitimate, is not an attempt to deny or frustrate a relationship between the child and the father, and comes from an honestly held belief that the child’s best interests are served by living with her in the UK.
According to the submissions and Exhibits 35 and 36, the parties identified the issues they say called for a determination. Each implicitly contended, by their submissions, that findings in relation to them would assist in informing the outcome of the primary issue.
The father identified the issues for determination to be:
1.The reasonable practicability of orders.
2. A meaningful relationship as a paramount consideration.
3. The parties’ respective abilities to live in the United Kingdom versus Australia (and when considering reasonable practicability).
4. [X’s] long-term best interests in terms of attachment to his father and his development in the absence of such an attachment.
5. The longevity or likelihood of the mother's distress if living in Australia and its affect, if any, on [X].
6. The “scaffolding” of the mother’s care for [X] in Australia.
7. The capacity and willingness of the father to assist the mother in her care of [X]; and
8. The support the mother may continue to receive from her parents should she live in Australia.
(Exhibit 36)
The mother identified the issues for determination to be:
1.The likely duration and extent of the mother’s significant decline in psychological health.
a.The likelihood that the triggers for the mother’s distress will be ameliorated by Father’s proposals and/or prognostic factors ([Dr J]).
b.The potential impact on [X] of the mother’s ongoing distress
2.Impact on [X] – long and short term of the mother’s relocation to the UK.
a.Nature of relationship that [X] may develop with his father (short/long term) - includes capacity of mother to promote relationship.
3.Whether there are “rare” or “extreme” factors that warrant the Court making Order 3 of the Father’s Orders being a Coercive Order.
4.Spousal Maintenance.
a.Fathers’ capacity to pay.
b.Mother’s Reasonable needs.
(Exhibit 35)
I will deal first with the various issues for determination and then address the advantages and disadvantages of each party’s proposal. In addressing the issues, I have done so in no particular order.
(1) The impact on the child of a likely deterioration in the mother’s mental health in the short-term
Each of the parties raised this as an issue for determination, albeit they expressed it in different ways. The father identified it as “the longevity or likelihood of the mother's distress if living in Australia and its affect, if any, on [X]” (Exhibit 36), while the mother identified it as:
1.The likely duration and extent of the mother’s significant decline in psychological health
a.The likelihood that the triggers for the mother’s distress will be ameliorated by Father’s proposals and/or prognostic factors ([Dr J]).
b.The potential impact on the child of the mother’s ongoing distress
(Exhibit 35)
Senior counsel for the mother submitted that the psychological welfare of a primary carer is inextricably bound up with the psychological welfare of the child. In the context of the mother’s ongoing psychological distress, senior counsel for the mother submitted that the mother’s psychological health would be compromised, and the child would therefore be at risk, if the mother could not cope. He submitted that the mother’s anxiety and distress would be conveyed to the child.
Senior counsel for the father conceded that the mother would obviously suffer some distress in the short-term, consistent with the evidence of the Single Expert Psychiatrist. However, she submitted that there was no evidence that the mother’s upset and distress had impacted the child, and contended that the causal link as submitted by the mother’s senior counsel did not exist. In that context, she placed some significant weight on the Single Expert Psychiatrist’s record of his discussion with the Mother’s Psychologist, where he recorded:
[Ms H] stated that despite observing [Ms Kerrane] in distress, she had never "questioned or doubted her desire and ability to care for [X]". [Ms H] observed that while [Ms Kerrane] could initially demonstrate cognitive rigidity when anxious, that [Ms Kerrane] could be "flexible when coached through things"
(Report of the Single Expert Psychiatrist dated 10 January 2024, p.14)
Neither party sought to cross-examine the Mother’s Psychologist. The Mother’s Psychologist’s statement needs to be seen in the context that, apart from two very short periods of time, the mother’s entire history of caring for the child has occurred with the support and assistance of her parents.
Accepting that the maternal grandparents are not going to be as available to assist in the care of the mother and the child as they have been, the mother’s parenting of the child in Australia is going to occur in a very different context to that which has occurred to date.
The Single Expert Psychiatrist said the mother’s psychological health would likely deteriorate significantly in the short-term, and its duration into the longer term would be speculative and dependent upon a number of factors.
The Mother’s Psychologist did not opine as to the duration of the mother’s emotionality and anxiety. She expressed concern about the mother’s emotional wellbeing if she was required to live in Australia without the support of her parents. She identified that the mother reverted to rumination and maladaptive thinking patterns, which triggered high emotionality and anxiety when she thought about having to live in Australia permanently. She observed that the mother’s ability to utilise techniques developed in treatment were more achievable when the mother had access to additional support such as her parents. She concluded that the mother will “require ongoing and intensive support to assist her emotional, physical, occupational, and parental adjustment if this is the outcome” (Report of the Mother’s Psychologist, 9 January 2024, p.3).
There was some limited cross-examination of the Family Report Writer on the future prospects for the child if the mother remained distressed. The Family Report Writer was of the view that the child appeared to have been very well cared for by the mother, but acknowledged that this care had occurred in the context of support from the maternal grandparents. When pressed as to the impact upon the child, he made the obvious statement that parents who are functioning well will maximise the development and welfare of their child. He agreed that if the mother’s mental health is profoundly compromised then it is likely to have a “downflow effect” on the child. He said this should not be viewed in isolation, and that there were compensatory mechanisms available including assistance from the father, input from his family, childcare, and other considerations.
The Family Report Writer agreed that it was a possibility that if the mother continued to feel anxious and distressed, this would have an effect on the child. The Family Report Writer emphasised that one needed to be conscious that the child, at this stage, is not necessarily going to be the child that he will be in six or 12 months’ time.
It is undoubtedly the case that the mother will remain, on either party’s proposals, the primary carer of the child. On the agreed position as advocated for by both parties, the father’s overnight time with the child does not commence until the child is three years old and even then, the father’s time with the child is only one overnight each fortnight for another year. The child will be, for at least the next three years, dependent upon the mother for his care. In those circumstances, her psychological functioning and capacity to care for him is a significant issue.
It is clear, from the evidence of the Single Expert Psychiatrist, that there is a possibility that the deterioration in the mother’s psychological health may not be just limited to the short-term. The Mother’s Psychologist said she will require ongoing and intensive support.
The question posed by the evidence is whether there is a risk of harm to the child, both in the short and longer term, posed by the mother remaining in Australia without the day-to-day support of her parents. In assessing that risk, there are a number of moving parts which include, as identified by the Single Expert Psychiatrist, the child’s developmental trajectory, the mother’s ability to form social supports, her employment, the support the father will (or will not) provide and, as identified by the Family Report Writer, that the child will, as he grows older, not necessarily remain in the same stage of development and would eventually settle into a routine including a more regular and normal sleep pattern.

Parenting matters are governed by Pt VII of 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 the 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 are important considerations.
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 conflicts 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 (“Franklyn”), 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”) at [47]–[48].
The Full Court in Sayer v Radcliffe 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) of the Act, the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility, but that presumption may be rebutted if: there are reasonable grounds to believe that a parent has engaged in abuse or family violence; or there is evidence which satisfies the Court that it is not in the best interests of the child for the presumption to be applied.
If 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 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 the child are determined by an examination of the factors set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations for 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, so far as they are applicable, will be discussed 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. …
(Bold emphasis in original)
In reaching my decision, I have considered all the relevant sections of the Act, albeit that I am not required, as a matter of law, to specifically address each consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in a child’s best interest 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)];
(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 likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court's obligation is to make the orders most likely to promote the child's best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
It is clearly to the benefit of a child to have a meaningful relationship with each of their parents. It is clear from the evidence of the Family Report Writer that the child will not be able to develop a secure attachment to the father if he relocates to the UK, for all the reasons referred to above.
I am cognisant of the authorities I have referred to that a meaningful relationship can be achieved on a particular proposal, even if it is not the optimal one. In this case, given the child’s young age and the evidence of the Family Report Writer, I recognize that it is likely that the child will not be able to develop a secure attachment with the father, at least in the shorter term. As the Family Report Writer said:
85.Well-intentioned and well motivated as [Ms Kerrane’s] position is, from purely a developmental perspective, it is more likely, not less likely that [X] will struggle to maintain a relationship with his father, that he will not be able to develop and consolidated a secure attachment to him, that efforts at visitation are likely to confront significant resistance from [X], who because of the absences and because of the attachment nature and process, is likely to see his father as a stranger, and it is very unlikely, and likely certain, that [X] will not be able to spend time with his father without his mother present; if [X] is forced to go into his care after a period of absence in the attempt to develop and foster a relationship, and especially in the first 2-3 years, not only is he likely to be extremely distressed and anxious, he is extremely likely to show the distress associated with such a young children placed in the care of a stranger; for [X], it will not be possible for his father to be someone other than a stranger. It is likely that in this situation, upon his return to his mother, he is likely to be clingy and regressed in the extreme.
(Family Report dated 26 February 2024, p.34)
It may be that as the child grows older he will develop a meaningful relationship with the father, but I recognize that at this stage, and for the next few years, the problems referred by the Single Expert to will likely arise.
Section 60CC(2)(b) abuse and family violence
This is not a relevant consideration.
Additional considerations
(a) Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
This is not a relevant consideration.
(b) The nature of the children’s relationship with each of the parents and other persons
I have no reason to doubt that the child has a closely bonded relationship with the mother, who is undoubtedly his primary attachment figure. I accept that he has a developing relationship with the father. The Family Report Writer observed that:
48….When observed together, [Ms Kerrane] and [X] were clearly in synchrony; [X] engaged with her as a safe and familiar caregiver, they maintained a serve and volley quality…
(emphasis in original)
(Family Report dated 26 February 2024, p 23)
In relation to his father, the Family Report Writer observed that the child was “settled in his father’s care and company and transitioned effortlessly between parents” (Family Report dated 26 February 2024, p.12).
The Family Report Writer observed, in relation to the mother, that:
48.…she actively supported and encouraged [X’s] transition into his father's care, she maintained a calm and positive demeanour on his behalf, she enthusiastically encouraged the transition, and easily managed [X’s] return to her care.
(Family Report dated 26 February 2024, p.23).
The child would appear, from the evidence of the maternal grandparents, to have a close relationship with them.
(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 children; spending time with the children; and communicate with the children
The mother has been the child’s primary carer and has met all his needs since birth. As referred to earlier, the father has not availed himself of every opportunity to spend time with the child, both during the relationship, after separation, and before court orders were made, nor has he always been available to spend time with the child pursuant to the previous court orders.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
I am not satisfied that this is a relevant consideration. The mother has, since separation, met all the expenses for the child while in her care, and the father has paid child support.
(d) Likely effects of any changes in the children's circumstances including the likely effect on the children 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 children), with whom he or she has been living
I have addressed this extensively above. The reality is that the child has spent a substantial part of his life in the UK, in the joint care of the mother and maternal grandparents, living in the maternal grandparents’ home.
Staying in Australia will require a new residence for the child and a separation from two of the people who have provided him with care, and with whom he has lived. It would mean, however, that he would not be separated from his father.
(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
I have addressed this extensively above. There are no practical difficulties or expense if the child remains in Australia.
A relocation to the UK will present practical difficulties for the father to spend time with the child. The father has, however, significant financial resources available to him to meet the cost. The distance presents significant difficulties in the child spending regular and consistent time with his father. Relocating will separate the child from the father and the paternal family.
(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
Given the child’s age and his dependence upon his primary carer, it is essential that the mother is as psychologically well and supported as she can be. I am satisfied that there are risks in both the short-term and the longer term that could impinge her functioning, and therefore her capacity, to meet the child’s needs if he is to remain in Australia. That risk does not arise in the UK.
(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
This is not a relevant consideration.
(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
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I have addressed this extensively above. The mother is the child’s primary carer and there is no criticism of the care that she has provided to him. The father agreed that he has, at times, prioritized his work over his relationship with the child.
(j) Any family violence involving the child or a member of the child's family
This is not a relevant consideration.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
This is not a relevant consideration.
(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 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 that I have not otherwise addressed.
CONCLUSION
The parties agree about equal shared parental responsibility. In those circumstances, the Court must, pursuant to s 65DAA of the Act, consider whether an order for equal time is in the child’s best interests. If the Court determines that it is not in the child’s best interests, the Court must consider whether an order for substantial and significant time is in the child’s best interests and, if so, whether it is reasonably practicable.
Neither parent sought an order for equal time. The parties agreed that the child will be in the primary care of his mother. The parties agreed about what the time arrangements are if the child is in the UK, and what they should be in Australia until he starts school. Having considered the agreed time proposals of the parties and their agreement, I am satisfied they are in the child’s best interests, depending on where he lives. I have addressed above the issues of reasonable practicability.
The import of the Family Report Writer’s evidence and the impact, both in the immediate and longer term, upon the child of not establishing a secure attachment with the father needs to be balanced against the impact upon the mother, his primary carer, of the child remaining in Australia and the consequent risk for the child. The father does not put himself forward as a primary carer. I am satisfied that the child is presently entirely dependent upon the mother to meet his needs. To meet his needs, the mother needs to be functioning psychologically. I am satisfied, given the evidence of the Single Expert Psychiatrist and the Mother’s Psychologist, that there are significant risks for the mother, and consequently the child, in the short and possibly the longer term if he remains in Australia. The Single Expert Psychiatrist was not prepared to categorically rule out the possibility that any impairment to the mother’s functioning may not only be limited to the short-term. For the mother to be the best primary carer that she can for the child, she needs to be in a psychological state where she is able to properly care for him. I am satisfied that cannot be achieved in Australia.

The stated advantages and disadvantages for the child are finely balanced. To refuse the relocation would compel the mother to remain in a place not of her choosing, with the likely deterioration, in the short-term, of her psychological health, the risk that her parenting will be compromised, and the risk the deterioration in her psychological health lasts longer than the short-term.
It is very finely balanced and, recognising as I do the significant risks for the child in the future as identified by the Family Report Writer, I am satisfied that his best interests are, on balance, met by permitting his relocation to the UK. The risks and concerns for the child can be entirely avoided if the father moved to the UK. They cannot be entirely avoided by the child remaining in Australia.
Accordingly, I will make orders permitting the child’s relocation to the UK in the terms of Exhibit 1, subject to corrections for typographical errors and some minor changes.
The mother’s application for spousal maintenance will be dismissed.

I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 12 April 2024

File number:	SYC 6089 of 2023
Judgment of:	SCHONELL J
Date of judgment:	12 April 2024
Catchwords:	FAMILY LAW – PARENTING – Relocation – Where the mother sought to relocate to the United Kingdom with the parties’ one year old child – Where the father and the Independent Children’s Lawyer opposed the mother’s application – Where the Family Report Writer opined that the child will not develop a secure attachment relationship with the father if he relocates to the UK – Where all parties proposed that the mother be the primary carer – Where the child lived in the UK with the mother for a substantial part of his life – Where the mother was significantly assisted in the child’s care by her parents – Where the father conceded he was not as available as he should have been to care for the child – Where the Court is satisfied that there are risks to the mother’s mental health, if she was not permitted to relocate, that would compromise her ability to care for the child – Where the Court has an obligation to consider the primary carer’s right to freedom of movement – Where the Court determined that, on balance, the child’s best interests are met by permitting relocation.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65Y
Cases cited:	AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Franklyn & Franklyn [2019] FamCAFC 256 Morgan & Miles (2007) FLC 93-343; [2007] FLC 93-343 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 Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293; [1992] HCA 15 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:	200
Date of hearing:	11–13 March 2024
Place:	Sydney
Counsel for the Applicant:	Ms Vohra SC
Solicitor for the Applicant:	Boyce & Boyce
Counsel for the Respondent:	Mr Cummings SC
Solicitor for the Respondent:	Rubin Blight Hardy Family Lawyers & Mediators
Counsel for the Independent Children's Lawyer:	Mr Duc
Solicitor for the Independent Children's Lawyer:	Adams & Partners Lawyers

SYC 6089 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DAVIN Applicant
AND:	MS KERRANE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	12 APRIL 2024