Deacon & Grover - [2023] FedCFamC2F 1080

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deacon & Grover [2023] FedCFamC2F 1080

File number(s): CAC 1272 of 2020

Judgment of: JUDGE W J NEVILLE

Date of judgment: 30 August 2023

Catchwords: FAMILY LAW – Parenting – relocation – where the Mother seeks to relocate with child to Brisbane, QLD from City B, NSW with the maternal Grandparents – where the Father lives in the City B region – Mother has child from previous relationship – Father has re-partnered and has child with new partner – not in child’s best interests to relocate with Mother as risks to child outweigh any benefit – fraught relationship between the parents characterised by history of family violence – significant concerns Father’s relationship with the child may not survive if permitted to relocate with the Mother – Mother demonstrated significant anxiety and significant difficulty facilitating child’s relationship with the Father post-separation– Mother pled guilty to family violence offences against Father – gradual increase in time with the Father to 5 nights per fortnight – parties to share parental responsibility

Legislation: Family Law Act 1975 (Cth) ss60CA, 60CC, 61DA, 65DAA

Cases cited:
Asher v Wilkinson (2021) 61 Fam LR 523

AMS v AIF (1999) 199 CLR 160

B & B [2006] FamCA 1207

Blanding v Blanding (2016) 55 Fam LR 218

Cales & Cales (2010) 44 Fam LR 376

Collu & Rinaldo [2010] FamCAFC 53

F v F (2008) 38 Fam LR 52

Fox v Percy (2003) 214 CLR 118

Franklyn & Franklyn [2019] FamCAFC 256

Franklyn & Franklyn (2021) FLC 94-031

Godfrey v Sanders (2007) 208 FLR 287

Hendy & Penningh (2018) FLC 93-879

Hepburn & Noble (2010) FLC ¶93-438

M v S (2008) 37 Fam LR 32

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC ¶93-375

Payne v Payne [2001] Fam 473

Sheldon & Weir (No.3) [2010] FamCA 1138

Sigley v Evor (2011) 44 Fam LR 439

Starr & Duggan [2009] FamCAFC 115

Taylor & Barker (2007) 37 Fam LR 461

U v U (2002) 211 CLR 238

Vontek v Vontek [2017] FamCAFC 28

Wiley & Wiley [2008] FamCAFC 153

Division: Division 2 Family Law

Number of paragraphs: 225

Date of last submission/s: 10 March 2023

Date of hearing: 14 – 16 December 2022

Place: Canberra

Counsel for the Applicant Ms E Swart

Solicitor for the Applicant Hijazi Curran Cameron Lawyers

Counsel for the Respondent Mr S Schonell

Solicitor for the Respondent Fox & Staniland Lawyers

Independent Children’s Lawyer Legal Aid ACT

ORDERS

CAC 1272 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DEACON

Applicant

AND:
MR GROVER

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

31 AUGUST 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.The parties shall have equal shared parental responsibility for making decisions for the long-term care, welfare and development of X, born in 2019 (“the child”).
2.The child live with the Mother.
3.Unless otherwise agreed in writing, the child shall spend time with the Father as follows:
(a)From 1 October 2023 to 1 February 2024:
(i)each Wednesday from 3.00pm to Thursday 9.00am; and
(ii)each alternate weekend from 5.00pm Friday until 9.00am Monday; and
(iii)during each NSW gazetted school holiday period, the weekend arrangement referred to in the preceding order, shall extend to 9.00am on Tuesday;

(b)From 1 February 2024:
(i)each Wednesday from 3.00pm to Thursday 9.00am; and
(ii)each alternate weekend from 5.00pm Friday until 9.00am Monday; and
(iii)half of each NSW gazetted school term holiday period, at the end of Terms 1, 2 and 3, being the first half in years ending in an even number and the second half in years ending in an odd number:
(iv)half of each NSW gazetted Christmas school holiday period, at the end of Term 4, as follows:
A.In years ending in an even number, the first two weeks of the holiday period, and shall include Christmas Day and week five of the holiday period; and
B.In years ending in an odd number, the third, fourth and sixth weeks of the school holiday period, concluding on the final Sunday of the school holiday period.

(v)From 2026 onwards, for one half of the Christmas school holidays, as follows:
A.in the first half in the years ending in an even number;
B.in the second half in the years ending in an odd number.

4.School term holidays are deemed to commence at the conclusion of school on the last day of term and conclude at 5:00pm on the day prior to the resumption of school in the next term, of the gazetted school term in the State where the child lives.

Time during special occasions
5.Unless otherwise agreed, each parties’ time with X pursuant to these Orders are suspended so that X spends time with:
(a)The Mother, from 9.00am Christmas Eve until 12.00pm Christmas Day in each year ending in an even number, and from 12.00pm Christmas Day until 5.00pm Boxing Day in each year ending in an odd number.
(b)The Father, from 9.00am Christmas Eve until 12.00pm Christmas Day in each year ending in an odd number, and from 12.00pm Christmas Day until 5.00pm Boxing Day in each year ending in an even number.
(c)The Mother, from 10.00am on Good Friday until 10.00am on Easter Sunday in each year ending in an even number and from 10.00am on Easter Sunday until 5.00pm on the Easter Monday in each year ending in an odd number.
(d)The Father, from 10.00am on Good Friday until 10.00am on Easter Sunday in each year ending in an odd number and from 10.00am on Easter Sunday until 5.00pm on the Easter Monday in each year ending in an even number.
(e)The Mother, on Mother’s Day weekend from Friday at the conclusion of school (or 3.00pm) to Monday at the commencement of school (or 9.00am).
(f)The Father, on Father’s Day weekend Friday at the conclusion of school (or 3.00pm) to Monday at the commencement of school (or 9.00am).
(g)The Mother, for the Mother’s Birthday, from the conclusion of school (or 3.00pm) to the commencement of school (or 9.00am) the following day if the Birthday falls on a school day but if the Birthday falls on a weekend, from the conclusion of school on Friday (or 3.00pm) to the commencement of school on Monday (or 9.00am).
(h)The Father, for the Father’s Birthday, from the conclusion of school (or 3.00pm) to the commencement of school (or 9.00am) the following day if the Birthday falls on a school day but if the Birthday falls on a weekend, from the conclusion of school on Friday (or 3.00pm) to the commencement of school on Monday (or 9.00am).
(i)If the Mother is not already spending time with X, with the Mother on X’s birthday from 3.00pm until 3.00pm.
(j)If the Father is not already spending time with X, with the Father on X’s birthday from 3.00pm until 3.00pm.

6.Each party shall have telephone, skype and/or video-call communication with X whilst in the care of the other parent, at reasonable times with reasonable frequency.
7.Changeover shall occur as agreed between the parties and failing agreement, as follows:
(a)At the child’s school on days she is attending school; and
(b)During the school holiday periods or on non-school days, changeover is to occur at City B McDonalds.

Travel
8.Upon the child turning 6 years of age, pursuant to Section 65Y of the Family Law Act, the Mother and Father shall each be and are hereby permitted to take the child out of the Commonwealth of Australia for a holiday subject to Order 9 of these orders being complied with, for a period of not more than 14 days duration in one calendar year, unless otherwise agreed in writing.
9.If either parent wishes to remove the child from the Commonwealth of Australia for a holiday in accordance with Order 8, that parent shall only travel to a Hague Convention country, unless otherwise agreed in writing by the other parent. The parent wishing to take the holiday must provide the other parent at least 6 weeks prior to the expected departure date the following:
(a)Copy of travel itinerary for the child, including addresses for all places at which the child will be staying whilst overseas;
(b)Telephone numbers upon which the child can be contacted whilst overseas;
(c)Copies of the child’s return tickets/E-tickets;
(d)Confirmation that such travel occurs during the child’s school holidays (unless agreed in writing with the non-travelling parent);
(e)The travelling parent facilitates the child having reasonable contact by FaceTime/phone/SMS/WhatsApp/video chat during the trip with the non-travelling parent;
(f)Details of who will be accompanying the child on the trip.

10.For a period of 2 years from the date of these Orders, being until 30 August 2025, the child’s Australian passport is to be held at the Canberra Registry of this Court.
11.Absent agreement, after completion of the period in Order 10, the Father shall be at liberty to hold in his possession, the child’s Australian passport at all times when not being used by the Mother for overseas travel with the child pursuant to these Orders.
12.For the purposes of facilitating either parties' travel outside the Commonwealth of Australia with the child pursuant to these Orders, and in the event the child requires a current Australian passport, travel visas and/or other travel related documents for such travel, then both parties shall do all things necessary, sign all documents deeds and instruments and provide all necessary consents to facilitate the issue of an Australian passport, all required travel visas and all other travel related documents for the child within seven (7) days of the one parent receiving a request and documents from the other parent.
13.In the event that the Mother defaults on her obligations pursuant to Order 11 herein, that pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Father is permitted to apply for the child to be issued with Australian travel documents without the consent or signature of the Mother.
14.In the event that the Father defaults on his obligations pursuant to Order 11 herein, that pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Mother is permitted to apply for the child to be issued with Australian travel documents without the consent or signature of the Father.
15.For the purposes of facilitating the Mother’s travel outside the Commonwealth of Australia with the child pursuant to these Orders then within seven (7) days of the Father receiving a written request from the Mother for the child’s Australian passports, the Father shall provide the child’s Australian passport to the Mother for the period of intended travel. Within seven (7) days upon the child’s return to Australia following each overseas trip, the Mother shall return the child’s passport to the possession of the Father.

General
16.Whilst the child is in their respective care, each parent shall advise each other as soon as reasonably practicable of any major medical/dental issues (of any non-routine nature) involving the child, and each party shall keep the other informed of any required treatment, diagnoses or medication required in relation to the child and the treating practitioner and the parties shall ensure the proper administration of such medications and treatments is performed by them.
17.The parties are restrained from initiating any specialist appointments for the child without the agreement of the other party in writing.
18.The parties be at liberty to attend all school events to which parties are invited to and to receive all information about the child’s education and progress directly from the school and with this Order to serve as an Authority for the school to provide all information sought by the parties.
19.Each parent keeps the other informed of their current residential address and mobile telephone number of themselves and Ms C (maternal grandmother) and advise the other parent of any change thereto within 7 days of such change.
20.Neither party shall denigrate the other parent or their family in front of or within hearing distance of the child.
21.The parents shall communicate using the Our Family Wizard or any other parenting application as agreed, unless there is a medical emergency.
22.The Mother shall do all things necessary to attend and participate in three (3) parenting courses with an emphasis on post-separation parenting and shall provide the Father with written confirmation of her enrolment and thereafter copies of her completion certificates.
23.The Father shall do all things necessary to attend and participate in one (1) refresher parenting course and shall provide the Mother with written confirmation of his enrolment and thereafter copies of his completion certificate.
24.The Mother shall engage in further psychological treatment and continue to do so in a manner recommended by that treatment provider.

AND THE COURT NOTES THAT:
A.The Court suggests the parents arrange a regularly facilitated “parenting business” meeting, for example, every second or third month, or such other agreed frequency with a limited, agreed agenda and information-sharing list of items (regarding past, present and future issues) regarding X facilitated by, for example, a counsellor, psychologist or family lawyer.

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

This parenting matter concerns 4½ year old X and the discordant relationship between her parents. Overlaid on this tension-filled co-parenting relationship are two other factors: (a) the Applicant Mother wishes to relocate to Queensland, and (b) on the Father’s evidence, the maternal Grandmother is quite the controlling “third-wheel” (my term) in the co-parenting relationship who causes the Mother to suffer frequent anxiety attacks.
The Mother has an older daughter, 11 year old D, from an earlier relationship. The Father and his partner, Ms E, have a one year old daughter, F. Ms E has two older teenage daughters.
Typically, there was much polarised evidence from both parents, which did not assist the Court much at all other than to highlight what might be described as somewhat typical areas of “co-parenting neuralgia”. On the evidence, both parents need assistance in relation to their co-parenting and related issues generally, the Mother in particular. Among other things, the Father has the support and much else of his impressive partner, Ms E.
To state a long-standing principle: after separation, parents are entitled to begin their lives anew, which can involve a move away from the area in which they currently reside. The only caveat to this is if such a move was determined by the Court to not be in the child’s best interests. For the reasons that follow, I do not consider it to be in X’s best interests to relocate to Queensland with her Mother. Among other things, her younger sibling F, is still a very new member of her family group; X herself is still quite young and needs to continue to develop her relationship with the Father. Moreover, as the evidence of Ms G made plain, a child of X’s young age usually tends to cope with a major disruption, such as relocation and a form of removal from very regular contact with her Father, if it were ever to happen, when somewhat older, such as when she is aged 7 years. Put another way, children tend to cope with significant change when they are somewhat older.
The crucial matters that compel me not to accede to the Mother’s Application to relocate is that her evidence (set out in detail below) was so troubling that I could not be properly or reasonably sure that the Father’s relationship with X would flourish, or even survive, the Mother and child moving so far away. In my view, the evidence strongly tells against the prudence and best interests of X being permitted to move to Queensland with her Mother.
Accordingly, in my view, subject to any other agreement in writing between the parties, in summary terms, it is in X’s best interests (a) to remain living primarily with her Mother, (b) to spend regular time with her Father and sibling F, and (c) not to relocate to Queensland.
Applicant’s Orders Sought
The Applicant Mother’s Orders sought were contained in the Outline of Case Document (Final Hearing) filed on 7^th December 2022; they were as follows (emphasis in original):
1.All previous orders be discharged.
Parental responsibility
2.That the Mother shall have sole parental responsibility for the child [X], born [in] 2019 (hereinafter referred to as “the child”) and shall consult and inform the Father of all long term decisions made by her in relation to the child, including but not limited to:
a.Her education;
b.Health, and;
c.Extra-curricular activities.
Living Arrangements
3.The Mother be permitted to relocate with the child to Brisbane/[Region H] in December 2023.
Spend time with arrangements
4.That the child spend time with the Father as follows:
a.until the Mother relocates in December 2023:
i.from the date of these orders until 1 June 2023:
A.each Wednesday from 3.00pm to Thursday 9.00am; and
B.each alternate weekend from 5.00pm Friday until 5.00pm Sunday; and
C.during each NSW gazetted school holiday period, the weekend arrangement referred to in the preceding order, shall extent to 9:00am on Monday;
ii.from 1 June 2023 until the Mother relocates in December 2023:
A.each Wednesday from 3.00pm to Thursday 9.00am; and
B.each alternate weekend from 5.00pm Friday until 9.00am Monday; and
C.during each NSW gazetted school holiday period, the weekend arrangement referred to in the preceding order, shall extend to 9.00am on Tuesday;
b.Upon the Mother and child relocating to [the Brisbane/Region H] area:
i.on one occasion each school term at [City B], NSW, for a period of 4 nights, at dates to be agreed between the parties, and failing agreement, to occur on a weekend closest to the mid-point of the school term from 3.00pm Friday to 9.00am Tuesday;
ii.For the first week of all gazetted Queensland school term holiday periods;
iii.During the gazetted Queensland Christmas school holidays, commencing at the conclusion of Term 4, as follows:
A.For a period of 14 days, as follows:
(a)In years ending in an even number, commencing on the first Monday of the holiday period, and shall include Christmas Day, or as agreed; and
(b)In years ending in an odd number, the last two weeks of the school holiday period, concluding on the final Sunday of the school holiday period.
B.From 2026 onwards, for one half of the Christmas school holidays, as follows:
(a)in the first half in the years ending in an even number;
(b)in the second half in the years ending in an odd number.
5.Notwithstanding Order 4, the child shall spend additional time with the father in Queensland, on two occasions each year during the school term, for a period of 3 nights, as agreed, or failing agreement from 3.00pm Friday to 9.00am Monday, provided that the Father provides the Mother with 60 days written notice of his intention to travel to Queensland, including nominating handover times/dates and the location of the father’s accommodation whilst in Queensland, including telephone contact details.
Christmas 2022
6.Notwithstanding Order 4, should the child be scheduled to spend time with the Father on Friday, 23 December 2022 to Monday, 26 December 2022, such time is suspended and the child shall spend that time with the Mother.
Spend time arrangements with the father should the mother remain living in the [City B]/[City J] region
7.That the child spend time with the Father as follows:
a.from the date of these orders until 1 June 2023:
i.each Wednesday from 3.00pm to Thursday 9.00am; and
ii.each alternate weekend from 5.00pm Friday until 5.00pm Sunday; and
iii.during each NSW gazetted school holiday period, the weekend arrangement referred to in the preceding order, shall extend to 9.00am on Monday;
b.from 1 June 2023 to 1 February 2024:
i.each Wednesday from 3.00pm to Thursday 9.00am; and
ii.each alternate weekend from 5.00pm Friday until 9.00am Monday; and
iii.during each NSW gazetted school holiday period, the weekend arrangement referred to in the preceding order, shall extend to 9.00am on Tuesday;
c.from 1 February 2024:
i.each Wednesday from 3.00pm to Thursday 9.00am; and
ii.each alternate weekend from 5.00pm Friday until 9.00am Monday; and
iii.half of each NSW gazetted school term holiday period, at the end of Terms 1, 2 and 3, being the first half in years ending in an even number and the second half in years ending in an odd number:
iv.half of each NSW gazetted Christmas school holiday period, at the end of Term 4, as follows:
A.In years ending in an even number, the first two weeks of the holiday period, and shall include Christmas Day and week five of the holiday period; and
B.In years ending in an odd number, the third, fourth and sixth weeks of the school holiday period, concluding on the final Sunday of the school holiday period.
C.From 2026 onwards, for one half of the Christmas school holidays, as follows:
(a)in the first half in the years ending in an even number;
(b)in the second half in the years ending in an odd number.
Communication
8.That the Mother shall do all acts and things necessary to facilitate the child communicating with the Father, either by telephone or audio/video, as follows:
a.Each Wednesday and Sunday beginning at 6.30pm to 7.00pm, or such other times as agreed in writing;
b.If the child is not spending time with the father on the child’s birthday, Father’s Day or the Father’s birthday, at times to be agreed, or failing agreement, from 6.30pm to 7.00pm;
c.If the child is not spending time with the father on Christmas day, from 9.00am to 9.30am;
d.Such other times as agreed between the parties in writing.
9.During the school holiday periods, when the child is spending time with the Father, the Father shall do all acts and things necessary to facilitate the Child communicating with the Mother by telephone or audio/video from 6.30pm to 7.00pm on each Wednesday.
10.If the child is not spending time with the Mother on Christmas day, the child’s birthday, the Mother’s birthday or Mother’s Day, the Father shall do all acts and things necessary to facilitate the Child communicating with the Mother by telephone or audio/video from 6.30pm to 7.00pm on that day.
11.Other than in a medical emergency, the parties are to communicate with each other in writing on matters pertaining to the child, in a business-like manner, and the parties are refrained from denigrating, abusing or harassing the other party.
Handovers
12.During the time that the Mother is residing in [City B], NSW, all handovers are to occur at the child’s daycare/preschool, if the child is attending at the relevant times, otherwise handovers are to occur between the parents, or their nominated agents, at [City B] McDonalds.
13.For the purposes of handover the Father or agent will be responsible for collection of the child at the commencement of the visit and the mother or agent will be responsible for the collection of the child at the end of the visit. Parties are to nominate no less than 21 days prior to the visit commencing their choice of travel arrangement.
14.If the parties are to meet to exchange via road travel the Mother will nominate the nearest McDonalds in [Brisbane/Region H].
15.If the parties elect airline travel for either collection or return, for the Father the collection will be the closest airport to the Mother’s residence, and for the Mother it will be the nearest airport closest to the Father’s residence. Parties are to inform each other, no less than 21 days prior to the travel date and provide the travel itinerary and flight details for the child. On all airline flights the child must be accompanied by the parent or agent.
Travel costs
16.Travel costs will be covered by the respective travelling parent for the child.
17.In the event that, for whatever reason, the child is unable to travel on the previously booked flight, it is the responsibility of the travelling parent, who booked the flight, to notify the other parent, as soon as practicable, of the change and it is the responsibility of the travelling parent to arrange for, and pay for, the first available alternative flight for the child, and to immediately notify the other parent of those flight details via text.
Other matters
18.That in the event that the child requires emergency medical attention or hospitalisation whilst in that parent’s care, that parent shall notify the other parent is soon as reasonably practicable, but within 24 hours.
19.The Father is to pay half of any specialist medical expenses within 30 days of receiving the invoice from the Mother.
20.That both parents are restrained from allowing or encouraging the child from referring to any other person, other than the parties herein, as her “Mum” or “Dad” or such other derivative.
21.The Father is to share half of any private school fees if the child attends an agreed private school in the Brisbane/[Region H] area, within 30 days of receiving the invoice from the Mother.
22.School term holidays are deemed to commence at the conclusion of school on the last day of term and conclude at 5pm on the day prior to the resumption of school in the next term, of the gazetted school term in the State where the child lives.
23.The Christmas school holiday period is deemed to commence at the conclusion of school on the last day of the school in term 4 and conclude at 5pm on the day prior to the resumption of school in the next year (term 1) of the gazetted school term in the State where the child lives (“Christmas school holidays”).
24.The Mother shall forthwith notify the Father of the school that the child attends and the Father is authorised to obtain copies of all notices, information, reports and invitations from the child’s educational providers, and is authorised to obtain all information, reports or advice from any of the child’s medical or counselling professionals..
25.The Father shall be present for the majority of his scheduled time with the child pursuant to these Orders.
26.Each of the parties shall provide up to date contact numbers, addresses, and emails to the other.
27.Other than for the purposes of relocating in accordance with Order 3, upon compliance with that order, the Mother is thereafter restrained from relocating from Brisbane/[Region H] area, other than with the Father’s written consent or further order of the Court.
28.Both parties be restrained by injunction from denigrating the other party or their partners or family members to the child, or within earshot of the child, or allowing any third party to do so.
29.All extant applications are dismissed.
Respondent’s Orders Sought

The Respondent Father’s Orders sought were contained in the Outline of Case Document (Final Hearing) emailed to Chambers on 7^th December 2022; they were as follows (emphasis in original):
Definitions
A.      “Mother” means the Applicant, [Ms Deacon]
B.      “Father” means the Respondent, [Mr Grover];
C.      “parties” means the Mother and Father together; and
D.      “[X]” means the parties child [X], born [in] 2019
Final Orders
PARENTAL RESPONSIBILITY
1.The parties shall have equal shared parental responsibility and have joint responsibility consultation with one another for making decisions for the long-term care, welfare and development of [X].
IF THE MOTHER IS RESIDING IN BRISBANE/[REGION H]
Live with/spend time with arrangements
2.[X] shall live with the Father.
3.[X] shall spend time with the Mother as follows:
a.   For the entirety of the Term 1 school holidays;
b.   For half of the Term 2 school holidays being the first half in years ending in an even number and the second half in years ending in an odd number.
c.   For the entirety of the Term 3 school holidays;
d.   For half of the Term 4 school holidays being the first half in years ending in an even number and the second half in years ending in an odd number.
4.That for the purpose of Order 3:
a.   The school holidays shall coincide with the NSW school calendar;
b.   The Mother shall pay 100% of [X]’s airfares in facilitating time between her [X] in accordance with these Orders;
c.   The school holiday period starts at 12.00pm on the first Saturday following the last day of the Term and concludes at 12.00pm on the Saturday prior to the commencement of the school Term; and
d.   Unless otherwise agreed, [X] is to travel between [City B] and Brisbane/[Region H] by commercial airline with the Father accompanying [X] (until she turns 12 years of age) and delivering her to the Mother at the airport in Brisbane/[Region H] at the commencement of the Mother’s time AND with the Mother accompanying [X] (until she turns 12 years of age) and delivering her to the Father at the airport in [City J] at the conclusion of her time with [X].
5.That each party shall have liberal telephone, skype and/or video-call communication with [X] whilst in the care of the other parent, at reasonable times with reasonable frequency.
Travel
6.That upon [X] turning 6 years of age, pursuant to Section 65Y of the Family Law Act, the Mother and Father shall each be and are hereby permitted to take [X] out of the Commonwealth of Australia for a holiday subject to Order 7 of these orders being complied with, for a period of not more than 14 days duration in one calendar year, unless otherwise agreed in writing.
7.If either parent wishes to remove [X] from the Commonwealth of Australia for a holiday in accordance with Order 6 that parent shall only travel to a Hague Convention country, unless otherwise agreed in writing by the other parent. The parent wishing to take the holiday must provide the other parent at least 6 weeks prior to the expected departure date the following:
a.   Copy of travel itinerary for [X], including addresses for all places at which [X] will be staying whilst overseas;
b.   Telephone numbers upon which [X] can be contacted whilst overseas;
c.   Copies of [X]’s return tickets/E-tickets;
d.   Confirmation that such travel occurs during [X]’s school holidays (unless agreed in writing with the non-travelling parent);
e.   That the travelling parent facilitates [X] having reasonable contact by facetime/phone/SMS/WhatsApp/ video chat during the trip with the non-travelling parent;
f.    Details of who will be accompanying [X] on the trip.
8.That the Father shall be at liberty to hold in his possession, [X]’s Australian passport at all times when not being used by the Mother for overseas travel with [X] pursuant to these Orders.
9.That for the purposes of facilitating either parties' travel outside the Commonwealth of Australia with [X] pursuant to these Orders, and in the event [X] requires a current Australian passport, travel visas and/or other travel related documents for such travel, then both parties shall do all things necessary, sign all documents deeds and instruments and provide all necessary consents to facilitate the issue of an Australian passport, all required travel visas and all other travel related documents for [X] within seven (7) days of the one parent receiving a request and documents from the other parent.
10.In the event that the Mother defaults on her obligations pursuant to Order 9 herein, that pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Father is permitted to apply for [X] to be issued with Australian travel documents without the consent or signature of the Mother.
11.In the event that the Father defaults on his obligations pursuant to Order 9 herein, that pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Mother is permitted to apply for [X] to be issued with Australian travel documents without the consent or signature of the Father.
12.That for the purposes of facilitating the Mother’s travel outside the Commonwealth of Australia with [X] pursuant to these Orders then within seven (7) days of the Father receiving a written request from the Mother for [X]’s Australian passports, the Father shall provide [X]’s Australian passport to the Mother for the period of intended travel. Within seven (7) days upon [X]’s return to Australia following each overseas trip, the Mother shall return [X]’s passport to the possession of the Father.
General
13.That whilst [X] is in their respective care, each parent shall advise each other as soon as reasonably practicable of any major medical/dental issues (of any non-routine nature) involving [X], and each party shall keep the other informed of any required treatment, diagnoses or medication required in relation to [X] and the treating practitioner and the parties shall ensure the proper administration of such medications and treatments is performed by them.
14.The parties are restrained from initiating any specialist appointments for [X] without the agreement of the other party in writing.
15.That the parties be at liberty to attend all school events to which parties are invited to and to receive all information about [X]’s education and progress directly from the school and with this Order to serve as an Authority for the school to provide all information sought by the parties.
16.That each parent keeps the other informed of their current residential address and mobile telephone number of themselves and [X] and [Ms C] (maternal grandmother) and advise the other parent of any change thereto within 7 days of such change.
17.That the Father shall be permitted to enrol [X] in a school of his choice in [City B], having regard to the Mother’s views/preferences of school, and provided he includes the Mother’s contact details in the enrolment forms.
18.That neither party shall denigrate the other parent or their family in front of or within hearing distance of [X].
IF THE MOTHER REMAINS LIVING IN [CITY B] NSW
Live with/spend time arrangements during the school term
19.[X] shall live with the Mother.
20.That until [X] commences primary school, [X] shall spend time with the Father from Friday 3.00pm (or at the conclusion of school) until Wednesday 9.00am (or at the commencement of school) in each alternate week.
21.That upon [X] commencing primary school, Order 20 shall be suspended and [X] shall spend time with the Father from Friday 3.00pm (or at the conclusion of school) until the following Friday 9.00am (or at the commencement of school) in each alternate week.
Time during School Holidays
22.That upon [X] commencing primary school, the parties time with [X] pursuant to Orders 19 and 21 shall be suspended during the Christmas school holiday period such that each party spends time with time with [X] as follows:
a.   With the Father, for the first half of the Christmas school holidays in years ending in an even number and the second half of the Christmas school holidays in years ending in an odd number; and
b.   With the Mother, for the first half of the Christmas school holidays in years ending in an odd number and the second half of the Christmas school holidays in years ending in an even number.
23.For the purposes of Order 22, school holiday periods are defined to commence at 5pm on the last day of Term 4 and to conclude at 5pm on the Sunday immediately preceding the commencement of the Term 1 in the new year.
Time during special occasions
24.That unless otherwise agreed, each parties’ time with [X] pursuant to these Orders are suspended so that [X] spends time with:
a.   The Mother, from 9.00am Christmas Eve until 12.00pm Christmas Day in each year ending in an even number, and from 12.00pm Christmas Day until 5.00pm Boxing Day in each year ending in an odd number.
b.   The Father, from 9.00am Christmas Eve until 12.00pm Christmas Day in each year ending in an odd number, and from 12.00pm Christmas Day until 5.00pm Boxing Day in each year ending in an even number.
c.   The Mother, from 10.00am on Good Friday until 10.00am on Easter Sunday in each year ending in an even number and from 10.00am on Easter Sunday until 5.00pm on the Easter Monday in each year ending in an odd number.
d.   The Father, from 10.00am on Good Friday until 10.00am on Easter Sunday in each year ending in an odd number and from 10.00am on Easter Sunday until 5.00pm on the Easter Monday in each year ending in an even number.
e.   The Mother, on Mother’s Day weekend from Friday at the conclusion of school (or 3.00pm) to Monday at the commencement of school (or 9.00am).
f.    The Father, on Father’s Day weekend Friday at the conclusion of school (or 3.00pm) to Monday at the commencement of school (or 9.00am).
g.   The Mother, for the Mother’s Birthday, from the conclusion of school (or 3.00pm) to the commencement of school (or 9.00am) the following day if the Birthday falls on a school day but if the Birthday falls on a weekend, from the conclusion of school on Friday (or 3.00pm) to the commencement of school on Monday (or 9.00am).
h.   The Father, for the Father’s Birthday, from the conclusion of school (or 3.00pm) to the commencement of school (or 9.00am) the following day if the Birthday falls on a school day but if the Birthday falls on a weekend, from the conclusion of school on Friday (or 3.00pm) to the commencement of school on Monday (or 9.00am).
i.    If the Mother is not already spending time with [X], with the Mother on [X]’s birthday from 3.00pm until 3.00pm.
j.    If the Father is not already spending time with [X], with the Father on [X]’s birthday from 3.00pm until 3.00pm.
25.That each party shall have liberal telephone, skype and/or video-call communication with [X] whilst in the care of the other parent, at reasonable times with reasonable frequency.
Changeover
26.Changeover shall occur as agreed between the parties and failing agreement, as follows:
c.At [X]’s school on days she is attending school; and
d.During the school holiday periods or on non-school days, changeover is to occur at [City B] McDonalds.
Travel
27.That upon [X] turning 6 years of age, pursuant to Section 65Y of the Family Law Act, the Mother and Father shall each be and are hereby permitted to take [X] out of the Commonwealth of Australia for a holiday subject to Order 28 of these orders being complied with, for a period of not more than 14 days duration in one calendar year, unless otherwise agreed in writing.
28.If either parent wishes to remove [X] from the Commonwealth of Australia for a holiday in accordance with Order 27 that parent shall only travel to a Hague Convention country, unless otherwise agreed in writing by the other parent. The parent wishing to take the holiday must provide the other parent at least 6 weeks prior to the expected departure date the following:
a.   Copy of travel itinerary for [X], including addresses for all places at which [X] will be staying whilst overseas;
b.   Telephone numbers upon which [X] can be contacted whilst overseas;
c.   Copies of [X]’s return tickets/E-tickets;
d.   Confirmation that such travel occurs during [X]’s school holidays (unless agreed in writing with the non-travelling parent);
e.   That the travelling parent facilitates [X] having reasonable contact by facetime/phone/SMS/ WhatsApp/ video chat during the trip with the non-travelling parent;
f.    Details of who will be accompanying [X] on the trip.
29.That the Father shall be at liberty to hold in his possession, [X]’s Australian passport at all times when not being used by the Mother for overseas travel with [X] pursuant to these Orders.
30.That for the purposes of facilitating either parties' travel outside the Commonwealth of Australia with [X] pursuant to these Orders, and in the event [X] requires a current Australian passport, travel visas and/or other travel related documents for such travel, then both parties shall do all things necessary, sign all documents deeds and instruments and provide all necessary consents to facilitate the issue of an Australian passport, all required travel visas and all other travel related documents for [X] within seven (7) days of the one parent receiving a request and documents from the other parent.
31.In the event that the Mother defaults on her obligations pursuant to Order 30 herein, that pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Father is permitted to apply for [X] to be issued with Australian travel documents without the consent or signature of the Mother.
32.In the event that the Father defaults on his obligations pursuant to Order 30 herein, that pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Mother is permitted to apply for [X] to be issued with Australian travel documents without the consent or signature of the Father.
33.That for the purposes of facilitating the Mother’s travel outside the Commonwealth of Australia with [X] pursuant to these Orders then within seven (7) days of the Father receiving a written request from the Mother for [X]’s Australian passports, the Father shall provide [X]’s Australian passport to the Mother for the period of intended travel. Within seven (7) days upon [X]’s return to Australia following each overseas trip, the Mother shall return [X]’s passport to the possession of the Father.
General
34.That whilst [X] is in their respective care, each parent shall advise each other as soon as reasonably practicable of any major medical/dental issues (of any non‑routine nature) involving [X], and each party shall keep the other informed of any required treatment, diagnoses or medication required in relation to [X] and the treating practitioner and the parties shall ensure the proper administration of such medications and treatments is performed by them.
35.The parties are restrained from initiating any specialist appointments for [X] without the agreement of the other party in writing.
36.That the parties be at liberty to attend all school events to which parties are invited to and to receive all information about [X]’s education and progress directly from the school and with this Order to serve as an Authority for the school to provide all information sought by the parties.
37.That each parent keeps the other informed of their current residential address and mobile telephone number of themselves and [X] and [Ms C] (maternal grandmother) and advise the other parent of any change thereto within 7 days of such change.
38.That the Father shall be permitted to enrol [X] in a school of his choice in [City B], having regard to the Mother’s views/preferences of school, and provided he includes the Mother’s contact details in the enrolment forms.
39.That neither party shall denigrate the other parent or their family in front of or within hearing distance of [X].
Independent Children’s Lawyers Orders Sought
The Independent Children’s Lawyers [preliminary] Orders sought were contained in the Case Summary Document filed on 6^th December 2022; they were as follows (emphasis in original):
MINUTE OF ORDER SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER (ICL.
Recital: These proposed minutes are the preliminary views of the Independent Children’s Lawyer and these views may change, after the testing of evidence and submissions of the parties.
Relocation
1.The child [X] born [in] 2019 (‘the child’) be able to relocate to in December 2023 with the Mother to Brisbane/[Region H].
2.The mother is not permitted to relocate with the child out of Brisbane/[Region H] without the written consent of the father or an Order of the Court.
Parental Responsibility
3.The Mother have sole parental responsibility for the child and shall inform the father of all long-term decisions made by her in relation to the child within 48 hours of making the decision. For abundant clarity this is includes but is not limited to: -
a.Health, including operations, treatments, diagnosis etc.
b.Education
c.Religion
d.Extra curricular activities
Live With and Spend Time With if the child remains in the [City B] region
4.Unless otherwise agreed in writing between the parties, until 1 June 2023 the child shall spend time with the father as follows: -
a.In Week one from 3pm Wednesday to 9am Thursday.
b.In Week two from 3pm Friday to 9am Monday.
5.Unless otherwise agreed in writing between the parties, from December 2023 the child shall spend time with the father as follows: -
c. In Week one from 3pm Wednesday to 9am Thursday.
d. In Week two from 3pm Thursday to 9am Monday.
NSW School Holidays as Gazetted or determined by the school
6.Commencing in 2024, unless otherwise agreed in writing between the parties, the child shall spend time with the parents in Term 1, 2 and 3 school holidays as follows: -
a.The first half of the school holidays in even numbered years and the second half in odd numbered years.
b.The first half in odd numbered years and the second half in even numbered years with the mother.
c.The first half of the school holiday period will be from 12 noon on the day after the last day of school term until 3:30pm on the day which is the midpoint of the school holiday period
7.Commencing in 2024, unless otherwise agreed in writing between the parties, the child shall spend time with the parents in the Term 4 school holidays as follows:
a.The child is to spend the first two weeks of the school holidays period in even numbered years and years ending in zero with the father.
b.The child is to spend the third and fourth week of the school holiday period in odd numbered years with the mother.
c.The child is to spend the fifth week of the school holiday period with her father in even numbered years and years ending in zero and with the mother in odd numbered years.
d.The child is to spend the sixth week of the school holiday period with her mother in even numbered years and years ending in zero and with the father in odd numbered years.
Live With and Spend Time With if the child is permitted to relocate
8.Unless otherwise agreed in writing between the parties, until 1 June 2023 the child shall spend time with the father as follows: -
a.In Week one from 3pm Wednesday to 9am Thursday.
b.In Week two from 3pm Friday to 9am Monday.
9.Unless otherwise agreed in writing between the parties, from December 2023 until relocation the child shall spend time with the father as follows: -
a.In Week one from 3pm Wednesday to 9am Thursday.
b.In Week two from 3pm Thursday to 9am Monday.
QLD School Holidays as Gazetted or determined by the school
10.Commencing in 2024, unless otherwise agreed in writing between the parties, the child shall spend time with the parents in the Term 1, 2 and 3 school holidays as follows: -
a.In the Term 1 School holidays, the whole of Term 1 school holidays in odd numbered years with time to commence at 5:00pm the first Sunday of the school holidays and end at 2:00pm on the last Saturday of the school holidays.
b.The entirety of the term 2 and 3 school holidays, with time to commence at 5:00pm the first Sunday of the school holidays and end at 2:00pm on the last Saturday of the school holidays.
11.Commencing in 2024, unless otherwise agreed in writing between the parties, the child shall spend time with the parents in the Term 4 school holidays as follows:
a.The child is to spend the first three weeks of the school holidays period in even numbered years and years ending in zero with the father and the last three weeks with the mother.
b.The child is to spend the first three weeks of the school holiday period in odd numbered years with the mother and the last three weeks with the father.
Changeovers
12.Unless otherwise agreed in writing between the parties:-
a.while the child remains living in [City B] NSW, for any changeovers that cannot occur at day care or school, they shall occur at McDonalds [City B], with either the parents facilitating the handover or their nominated agents.
b.If the child is residing in the Brisbane/[Region H] area the mother or her agents shall be responsible for delivering the child to the father or his agents in [City B] NSW at the commencement of time and these costs shall be borne by the mother.
c.If the child is residing in the Brisbane/[Region H] area the father or his agents shall be responsible for delivering the child to the mother or her agents at the conclusion of his time by delivering her to the airport closest to the mother’s residence and these costs shall be borne by the father.
Communication and Authorities
13.The child will communicate with the parent that they are not with each Wednesday and Saturday between 5pm and 6.00pm eastern standard time, or at any other time as requested by the child. The parent who the child is not with shall initiate the call.
14.The child will communicate with the parent that she is not with on special occasions such as Christmas, Easter, birthdays and any other significant event as agreed between the parties in writing.
15.The parents shall communicate using the Our Family Wizard or any other parenting application as agreed, unless there is a medical emergency.
16.In the case of medical emergency the parents shall communicate by telephone or text message, providing sufficient information about the medical emergency including injuries, hospital admission and details of relevant hospital or medical facility the child is taken to.
17.This Order authorises any school, educational facility or extra curricular body to provide information to both parents including but not limited to notices, schedules, timetables, reports, newsletters, school photo forms or any other information that would usually be provided to a parent.
18.This Order authorises both parents to attend school and extra curricular activities that a parent is usually invited to attend.
19.This Order authorises any medical practitioners, medical facility or health care provider who provides services to the children to provide information about the children to either parent as deemed appropriate by that medical practitioner, facility or health care provider.
Other matters
20.Both parents are hereby restrained by injunction from denigrating the other parent, members of the other parent’s family in the presence or hearing of the children and are not to discuss or involve the children in any disagreements between the parents.
21.The parents shall keep each other informed of any changes to their contact details and advise the other parent of any change within 72 hours of the change.
22.If either parent is unable to care for the children for a period of more than 48 hours then the other parent should be provided first option to care.
23.The costs of the Independent Children’s Lawyer be paid equally by the parents, or as otherwise ordered by the Court.
IT IS NOTED:
1.This Order is inconsistent with the terms of the Apprehended Domestic Violence Order Case Number […] made in the Local Court [in mid] 2022.
2.To the extent of any inconsistency between the Family Law Orders and the Apprehended Domestic Violence Order, pursuant to 68Q of the Family Law Act 1975, these orders prevail.
Applicant Mother’s Oral Evidence

Summarised, the Mother’s oral evidence was as follows:
The Mother confirmed that, since separation, she has always sought to facilitate time between X and the Father, and would continue to do so if she were permitted to relocate with X to Queensland.[1]
[1] T 9.
She also confirmed that, following separation on 10^th February 2020, the parties signed a parenting plan which permitted X to spend two to three occasions with the Father each week with such time to occur in the presence of the Mother. Accordingly, Counsel for the Father posited that this would indicate the Mother was not in fear of the Father at this time. The Mother emphatically disagreed, but reiterated (in my view, with some otherwise obvious inconsistency in her evidence and position towards the Father) that she was content to facilitate X’s time with the Father.[2]
[2] T 9 – 10.
It was at this point that the Mother was [politely] cautioned against providing further information beyond what was sought by Counsel for the Father. While not uncommon, the regular provision of additional information significantly beyond what was sought, was a regular occurrence throughout the hearing. And as indicated often in these reasons, notwithstanding regular and increasingly direct “guidance” from the Court, the Mother continued to provide additional information regarding her answers rather than providing a rather more straight-forward ‘yes’ or ‘no’ response.
The Mother was asked to confirm that the Father regularly attended the marital home from separation in January 2020 to mid-2020. She confirmed that this was the case. She also confirmed that she washed his clothes, would attend the park with the Father, and have outings together, at which times the Maternal Grandmother was not present.[3]
[3] T 10.
It was suggested that the Father would often ask for additional time with X, including overnight time. The Mother denied this, although then suggested that overnight time was requested by mid-2020. When asked if the Father’s time with X ceased at this point, the Mother said that there was a two week period where the Father did not see X, following which the Mother filed papers with the Court.[4]
[4] T 11.
It was put to the Mother that she had told the Father that he would need to seek Court Orders if he wanted to spend time with X from this point. The Mother said that she had been instructed by the Department of Communities and Justice (DCJ) not to leave X unattended with the Father “or that consequences” would fall to the Mother. It was put to the Mother that material produced by DCJ contained nothing to this effect. The Mother acknowledged this was the case, she confirmed, however, that such a conversation had taken place.[5] Detail was somewhat lacking in this regard.
[5] T 11.
The Mother was asked whether she had proposed that she and the Father reconcile their relationship in mid-2020. She confirmed that there had been discussions to this effect from the “beginning”. However, it was pointed out to her that the Father had indicated that he did not want to reconcile with her, and simply wanted to focus on spending time with X. The Mother altered her position somewhat and confirmed this was true. The Mother also acknowledged that it was at this point that time between X and the Father ceased, although she sought to highlight that she did not see any correlation between the two circumstances in her mind, but rather that it was related to her [unrecorded and un-noted] conversation with the DCJ.[6]
[6] T 12.
The Mother said that safety plans had been put in place by DCJ with regard to exiting visitations with the Father and exiting the marital home if the Father were to return. However, it was again pointed out to the Mother that no such safety plans were recorded in the material of the DCJ.[7] Again, the dissonance between the Mother’s evidence and the independent documentary evidence was somewhat concerning. The concern about the Mother’s evidence grew significantly.
[7] T 12.
Questions then moved briefly and generally to matters regarding the Father’s relationship with his now Wife, Ms E. The Mother said that she believed the Father was having an affair, presumably during their relationship, but “wasn’t 100 percent sure”. The Mother denied that she had a tracking device installed in the Father’s phone.[8]
[8] T 13.
The Mother said that she had agreed to the Father spending three hours per week, supervised, with X, on the condition that Ms E was not present. The Mother explained that she wanted the Father to “build a bond” with X rather than rely on Ms E. When asked whether the Father could have made this decision for himself, somewhat curiously, the Mother disagreed, thereby (not for the first time) suggesting that there is a certain “controlling aspect” to the co-parenting relationship, which is not conducive to ongoing, trusting and open co-parenting. The Mother confirmed that she has concerns about how the Father manages his time with X, although she stated that she believes X loves him.[9]
[9] T 13 – 14.
The Mother was asked whether she thought the Father would protect X. She responded, obliquely and certainly not directly to the question asked by saying that she believed the Father would never deliberately hurt X. Why a question about “protection” of the child would warrant a response about “not hurting X” was, at least, curious. The Mother was also asked whether she believed X was at risk in the Father’s care. Again, the Mother confirmed that she did not believe X was at any risk in the Father’s care.[10] Notwithstanding such assurances, the somewhat regular insistence on the Father’s time with X to be supervised was incongruous, unhelpful and exhibited a regular distrust of the Father.
[10] T 14.
The Mother agreed that her parenting style was different to the Father’s, and that she saw no issue for X in these differences.[11]
[11] T 15.
The Mother confirmed that, although supervised time between the Father and X was due to commence in late 2020, she would not agree to a male supervisor through the professional supervision service. Given the Mother’s earlier evidence that she has no concerns as to risk or otherwise of X in the Father’s care, as already remarked, it rather begs the question about the necessity for the Father’s time to be supervised. It seemed a regular instance of either (or both) control by the Mother or a degree of hyper-vigilance.
The Mother also confirmed that since Orders were made on 3^rd September 2020, she has not attended any changeovers. The Mother said that the risk of hostility “evolving” between herself and the Father was a possibility, and she had only been present during the Father’s time with X immediately following separation due to limited finances. When asked if the Mother continued to hold the same concerns about the Father now, she advised (somewhat elliptically, enigmatically and unhelpfully) that “handover is not an option”. The Mother said that, with time and the distance afforded by her potential move to Queensland, “exchanges” (the nature and kind of them were not explained) with the Father could improve. This struck me as more a “hope” than anything else.
The Mother was then asked to advise of her proposal for changeovers for X if she were to relocate to Queensland. The Mother said that she would likely need a support person to assist with changeovers, or perhaps the use of a police station. The Mother indicated that she was still seeking professional assistance to address these concerns.[12] Among other aspects of her evidence, the Mother’s angst and general anxiety was troubling for her, for X and also for the future co-parenting relationship with the Father. In no hyper-critical way, the Mother’s ongoing anxiety causes concern for the Court. Among other things, if not already generally aware of her Mother’s anxiety, presumably as she gets older, X will very likely become even more acutely aware of this anxiety and the reasons for it – namely her Mother’s angst towards the Father.
[12] T 15 – 16.
The Mother was asked why she could not simply start to implement a strategy for changeover sooner rather than waiting for her potential relocation to Queensland. She indicated that this was not possible due to the effect it would have on her mental and physical health. When asked how she would address the potential six month gap between her parents moving to Queensland and her potential relocation in December 2023, the Mother believed that she would be able to manage changeovers for that period. Again both bluntly and with little clear evidence, the Mother simply declared that she would not be able to facilitate changeover with the Father directly. Almost with each response to each question put to her, the Mother’s evidence became, in my view, increasingly problematic especially about how she saw a move to Queensland as something of a parenting panacea but which, if more basic issues were not addressed, it would likely simply compound those issues, such as changeover and (crucially) the promotion of X’s relationship with the Father.
The following exchanges highlight much about the “changeover” and related issues (emphasis added):[13]
[13] T 15 & 16.
MR SCHONELL: And it’s correct to say that notwithstanding you undertaking supervision between [early] and [mid]-2020, since those orders on 3 September 2020, you have not attended one changeover?‑‑‑That’s correct.
HIS HONOUR: Why is that?‑‑‑The hostility that could evolve between me and [Mr Grover] is real, and I am in counselling. I have been in counselling since I have left. The only reason that, your Honour, I was present during those initial stages was because there was little and limited opportunity financially. I was still on maternity leave. I had not even returned to work. I was still in the family home and I had a one year old. I obviously did not want [X] not to see her father, but I needed to do it in a way that I could achieve with the circumstances I had before me.
Yes. No, I understand that historically, but do you still ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ have the same issues or concerns today?‑‑‑Absolutely. Very much so. Handover is not an option, and I will not be putting myself or [X] or [Mr Grover] and his new family at any risk. If [X] is available and made available for her visitation in a safe way, a productive way, a way that doesn’t have [X] see her parents, you know, involved in any conflict, me crying or upset or – I don’t want that for [X] at all. I don’t want that for me in my recovery and progress. I don’t want that for [Mr Grover], either.
So how much longer do you say you are likely to be so anxious or concerned about changeovers that you don’t plan on being present at them?‑‑‑Your Honour, I think with time and the situation I’ve proposed in the move to Queensland, I absolutely feel that in the future – that I could make that – you know, those arrangements happen, and I think with proximity, you know, being a factor, you know, when that is removed and exchanges could be perhaps less frequent, they could become productive and the relationship, with time, I am hoping, could improve, but that is a longer term, I think.
So ‑ ‑ ‑?‑‑‑Not impossible and not improbable and not the goal, but longer term.
So let me put a difficult scenario to you. Okay? Your parents move to Queensland ‑ ‑ ‑?‑‑‑Absolutely, your Honour.
‑ ‑ ‑ and I make a decision that it’s not in [X]’s best interest to relocate with you to Queensland. Okay? That’s one of a number of possibilities, right?‑‑‑Okay.
So what’s going to happen with the changeovers if you’re still in [City B] with [X]? You still want to, and I accept that you will, as far as you can – you will, pardon me, promote and do all things necessary to facilitate [X]’s relationship with her dad?‑‑‑Yes.
What’s going to happen about changeovers?‑‑‑Perhaps, some more structure would need to be put in place than is current.
So what does that mean?‑‑‑I might need, you know, a support person or somebody to assist, you know, or come with, or we had discussed – the lawyer had discussed a police station or some other safe venue that would provide less worry for risk. Yes, the – you know, that ‑ ‑ ‑
But it’s alleged risk and worry for you, not for [X], correct?‑‑‑I think [X] has already been exposed, unfortunately, to a little bit. It’s less with my mum doing it than it would be with me. I don’t think there’s any contest that me and [Mr Grover] have ‑ ‑ ‑
Issues?‑‑‑ ‑ ‑ ‑ the potential for that. Yes, and I don’t – you know, because there has – because I’ve avoided that exposure, that obviously hasn’t come to the front, and you know, I’ve even left – [City B]is such a small place. You know, when I turn up to [the] Park or something and they’re there, I leave, and I literally go to the extent of calling the police, telling them I’m leaving the event, and then, I go home to avoid the conflict. Avoiding it is, you know, obviously something that I’ve been doing, but that’s not ideal. My oldest daughter has been missing out on some things and, you know, it’s not just [X]. It’s my oldest as well that feels the brunt of that protective state that is real. It’s very unfortunate, but it’s there.
And you’re still – you’re still seeking professional assistance, yes?‑‑‑Absolutely, yes.
Subject to what is said later in these reasons, to say that the Mother harbours significant, but perhaps somewhat overblown, concerns in relation to the Father, in my view, is not inapposite.
It was suggested by Counsel for the Father that the parties would be able to avoid contact if changeover were simply to take place at X’s day care. The Mother agreed this solved “one of many problems”. When discussing potential arrangements for changeover, the Mother confirmed that she had friends in City B who could assist with changeover, although she indicated that she was not “sure how comfortable they would feel.”[14] “Problem-solving” seemed not to be a strong feature in the Mother’s evidence and equally so in her character.
[14] T 19 – 22.
The Mother was also asked by the Court whether, even with CCTV present in a public place, if she would continue to feel comfortable attending changeovers. The Mother disagreed. Her anxiety, especially in the light of the evidence discussed later in these reasons from the Father and the Family Consultant, was not only unabated but seemingly almost increasing with each passing year. She was then asked if she believed she was overly sensitive to issues between her and the Father. The Mother denied this, stating that the risk remained to X in having a parent who is emotionally stable or secure following handover due to the necessary proximity with the Father.[15] Her evidence in this regard must also be seen in the light of various playful and very frank exchanges with the Father, from 2017 and thereabouts that were part of the Father’s Tender Bundle (at “F” pp.20-31).[16] The Mother’s evidence here could almost be taken to be that the risk to X was more from the Mother’s relentless anxiety than anything the Father may have said or done.
[15] T 23.
[16] These and other matters will be re-visited later in the light of evidence provided in a Report on the Mother’s behalf by psychiatrist, Dr M, briefly noted later. Regrettably, and without explanation, there was no evidence from the Mother’s treating psychologist/counsellor.
The Mother was next asked about her current treatment. She advised that she was seeing a counsellor, and had been for a number of months, although previously she had been attending K Services. The Mother confirmed that she did not have her counsellor provide an Affidavit, although she had produced a letter which, unfortunately, had not been provided to the Court. Why this was so was not explained. The omission of such potentially important evidence was, in my view, surprising, significant and unfortunate. No less surprising was the fact that, in the light of this omission and the lack of explanation for it, no submission was made for the Court to draw an adverse inference against the Mother that the evidence of the counsellor would not have assisted the Mother’s case.[17]
[17] See the well-known principles in Jones v Dunkel (1959) 101 CLR 298.
The Mother confirmed that she had not done any post-separation courses but did not have any objection to completing them.[18] In my view, any and all assistance for the Mother should be undertaken.
[18] 24 – 25.
There followed a discussion regarding the comments set out in the expert report from Dr M, which was attached to his Affidavit, sworn 15^th March 2022. The Mother acknowledged that Dr M found no evidence to suggest that the Mother’s trauma-related disorder impacted upon the Mother’s capacity to parent X.[19] While a clinical view, as noted multiple times already, the Mother’s evidence was significantly troubling.
[19] T 25. Dr M was not required for cross examination.
The Mother was next questioned about several cancelled supervision sessions, two of which occurred due to X being unwell. It was suggested that the Father had asked the Mother repeatedly for a medical certificate in relation to X’s illness. The Mother said she could not recall if this was true. It was also suggested that no make-up time had been provided for the missed visits. The Mother responded that she would be shocked if this was the case.[20]
[20] T 30 – 31.
The issue of handovers was again canvassed, more particularly in relation to the Maternal Grandmother’s involvement. Counsel for the Father sought to clarify whether there was conflict between the Maternal Grandmother and the Father. The Mother commented that she believed there to be a “low amount” of conflict, but agreed that the Maternal Grandmother had attended the police station to make a report about an “event” at changeover. The Mother was again asked to acknowledge that, had changeovers been taking place at day-care, neither the Mother nor the Maternal Grandmother would need to come into contact with the Father on a regular basis. The Mother’s lack of response was unhelpful; it might be taken to have been a sotto voce acknowledgement of the accuracy of the proposition put to her about changeovers at day-care.[21] Otherwise, the lack of response could reasonably be taken to show an unfortunate lack of insight. It could also be taken to show not only a hyper-vigilance regarding X but also perhaps an even more troubling self-absorption that so clouds the Mother’s judgment and insight that it impacts her parenting decisions in relation to X.
[21] T 32.
The Mother was then taken to an incident that occurred in late 2020 in which X received a “mozzie bite” while in the care of her Father. To anticipate matters somewhat: what happens here, unfortunately, bordered on the surreal. The Mother confirmed this time between X and her Father was supervised by a professional supervisor. Only with slight hyperbole, it might be asked why and how the supervisor was [perhaps] expected to prevent such a bite, but which was not explained. However, she advised that she had taken X to the emergency department [of City B Hospital] because the child was injured, with the hospital report indicating that the Mother was concerned that X had injured herself at the Father’s home. Counsel for the Father referred to hospital notes which confirmed that there was ‘no visible trauma’; the Mother agreed but clarified that X had a hurt body part and was ‘nursing it’. The Mother was asked or invited to acknowledge that the doctor who reviewed X found nothing of significance. The Mother disagreed confirming that X had a ‘muscular injury’. Bizarrely (in my view), the visit to the emergency department somehow led to a full body assessment in which X was stripped of her clothes and had her genitals examined. The Mother confirmed, with astonishing understatement, that this was a ‘very unfortunate situation’. She maintained, however, that the full body examination had nothing to do with what she had said to the doctors, nor was the examination explained to the Mother before it took place. It was at this point that, unsurprisingly, the Father became visibly distressed and left the Courtroom at the explanation by the Mother of the events at the hospital.[22] The Mother’s evidence regarding the emergency department hospital visit, in my view, showed both over-reaction and alarming lack of insight. Even simply to acknowledge the patently obvious fact that the medical records confirm that there was no injury. Yet, the Mother’s persistence and insistence that the child had an injury, and when all of the astonishing full body examination was initiated over a “mozzie bite”, was nothing short of extraordinary and very concerning. Indeed, it is next to impossible that, as standard medical practice involving a child, a parent would not have been asked for permission to conduct such an invasive examination. On the Mother’s evidence, she was essentially an innocent and completely mute bystander while her young daughter was subjected to a full physical examination, including internally. In every respect, the Mother’s evidence regarding this matter was incredible in every respect.
[22] T 33 – 36.

It is important to consider for a few moments more the detail about this very troubling incident at City B Hospital in late 2020. The records from this time/incident begin at p.47 of the Joint Tender Bundle. The records from the day include the following:
PC: Painful [limb]…
…
Grandmother was contacted by [Ms L] at 1730 that [X] had ? [hurt herself], Aloe vera was given topically; [X] had been noted to be holding/rubbing [limb]. Reluctant for others to touch/RV it. Placing hand behind her back. Grandmother brought [X] to her mothers place, who called GP – advised to present to ED. [X] had been well in herself otherwise, had attended playschool in the morning.
Parents separated. Father ([Mr Grover]) has been physically and verbally abusive to Mother. Known to be verbally abusive to [X] and her elder sister ([D], 8). Mother does not believe Father may have hurt child but is concern[ed] that [X] may have falled [sic]/injured herself at her Father’s home.
Clinging to mother/grandmother. Avoiding strangers, crying when approached by strangers.
No visible trauma/erythema [redness]/bruising to [limb]
Stripped down. ED RN [Ms N] present as chaperone. Mild erythema to [limb] – likely when struggling to avoid assessment. Old scar tissue on [body part] – […].
Normal genitalia. Frenulum not torn. Normal anal area, no skin tears. Normal nails, no nail bed injuries. Scratching […]
There is no definite […] joint effusion. No convincing fracture is seen on the images provided.
… Mother happy to go home, feels safe at home; Report made to […]/child abuse by ED RN [Ms N]…
As already noted, on so many levels, this report/account is highly disturbing, not least (a) the invasive level of examination when the child presented with a sore body part, (b) the report regarding “child abuse”, (c) the Mother’s/Grandmother’s account of the Father’s [alleged] physical and verbal abuse to the Mother and “known to be verbally abusive to X and her elder sister” (D, 8), and (d) the Mother’s/Grandmother’s complete lack of inquiry at the hospital how and why a “stripped down” examination of the child was necessary for a “painful [limb].” It is more by inference that the latter entry refers to the Father. And all of this in circumstances where the Mother said that she did not believe that the Father “may have hurt child.” Further, despite acknowledging that it was an “unfortunate” situation in cross examination, the Mother showed no major or other concerns looking back at this astonishing event at the hospital. According to the medical notes, at least the hospital had a support person present during the examination (“ED RN [Ms N] present as chaperone”). This note rather cryptically begs the practical but still alarming question: “What were the Mother and Grandmother doing or thinking?”
And after all this, doubtless adding further alarm for X (and now for the Court similarly) the child was returned to the hospital the following day for further examination regarding her injury. Most parents will obviously or usually proceed on the basis of medical advice in relation to the care of their child. However, the scrutiny the poor child underwent for such an apparently minor injury, and apparently without any consideration about the child perhaps having suffered something at play-school earlier in the day, plus not the slightest (a) basic “first aid” (cold pack, analgesia), rest,[23] and/or (b) proper questioning of the medical staff about why such an invasive examination was necessary for a sore limb, in my view, showed genuinely alarming lack of insight and much else. My concerns were exacerbated by the later hospital engagement for X in 2022, discussed below.
[23] In this regard, I note that the medical records for the hospital visit the next day (Tender Bundle p.49) “prescribed” that the Mother to “keep monitoring […] swelling …”, and “can give Panadol 6 hourly as required for pain.”
After a brief adjournment, questioning continued of the Mother in relation to incidents surrounding X’s visit to the hospital in late 2020. The Mother was asked whether she questioned why the doctor was examining X’s genitals given she had attended hospital due to a suggested minor injury (or presumably, the original “mozzie bite”). The Mother said that she had not directly asked the doctor about the exam. The Mother explained that because X was not able to speak at this age, and the “injury” was “unexplained” that they would need to remove X’s clothes for the examination.[24] Of course: a full body examination of the very young child, then aged approximately almost 2 years, who presented with a mozzie bite and or a minor injury! Disturbing is not the word, both in relation to the examination and equally the Mother’s silence in the face of it, clearly without any questions being asked. Hyper-vigilant in certain circumstances, basic inquiry in others, absent.
[24] T 39.
The Mother further confirmed that, in my view astonishingly, she had taken X back to the hospital the following day after being instructed to do so by the doctor. When asked whether this would be stated in the hospital notes, the Mother said she was not sure that it would. The Mother advised that X remained injured and her body part was clicking. When asked whether this was an appropriate course given what had taken place the day before, the Mother advised she was concerned because X could not explain the injury to her. Counsel for the Father pointed out that X had not been crying, nor was she in pain, however the Mother continued to reiterate X was injured. The Mother confirmed that, with hindsight, she would still take the same course in seeking medical treatment in the circumstances.[25] I am alarmed at the Mother’s evidence in relation to these matters. “Hyper-vigilance” and “unbalanced” are descriptions, among others, that readily come to mind. I cannot imagine the Mother’s reaction if the events X suffered at the hospital while in her (and the Grandmother’s care) had taken place while the child was in the Father’s care. It does not bear thinking about, other than her Application would almost certainly have been for a “no contact Order” against the Father.
[25] T 41 – 43.
The Mother acknowledged that time between the Father and X did not take place while they were waiting for X’s “injury” to heal, however she continued to attend day care during this time. She sought to clarify that there had been issues with supervisor staffing availability and it was not her intention for time to be suspended as long as it was.[26] Again, in my view, the disparity in treatment of the Father/child relationship was so often on display. Here, the “injured” (possibly traumatised) child was deemed fit to attend child care but not to spend time with her Father. In my view, the evidence strongly and regularly showed the poor judgment of the Mother in relation to the promotion of X’s relationship with the Father.
[26] T 43 – 44.
The Mother was taken to a letter sent by her former solicitors to the Father which provided that the Mother believed the injury was sustained due to “cumulative stress and tiredness” from X’s time with the Father. When asked how this could be the case, the Mother responded that she did not know. “Cumulative stress and tiredness” in the Mother’s household, where X primarily resided, seemingly, could not be a causal factor, especially in circumstances where the child spent so little time with the Father. Not for the first time, I am very troubled by the Mother’s lack of insight on multiple fronts.
The Mother confirmed that she had contacted the supervision service to have a different supervisor appointed following the “incident” in late 2020. The Mother voiced concerns that different “statements” had been given about how X’s injury was sustained. The Mother acknowledged the Father’s time with X ceased due to the issues with supervision. The Mother also acknowledged the Father had provided an alternative supervision service, although she had never provided a response to his proposal, and the Father did not see X for a period of 5 weeks following the incident in late 2020.[27] By this stage, without expressing it during the trial, I was almost speechless at the Mother’s problematic and insightless evidence, and clear prejudice against the Father and his relationship with X.
[27] T 45 – 50.
The Father’s time with X moved to unsupervised time from 15^th December 2020. The Mother was asked what had changed her mind about the supervision of time. She responded that it had always been the plan to move to unsupervised time. Counsel for the Father asked if supervision was simply unnecessary – the Mother disagreed with this.[28] I strongly disagree with the Mother.
[28] T 50.
The Mother was asked whether the Father had ever withheld X from her. The Mother confirmed that he had not. The Mother was then asked why she had not allowed X to spend time with the Father over Christmas 2020 without Court Orders in place. The Mother said that there had been a difference in the Orders the parties were seeking, which meant X did not see the Father for Christmas, or for her 4^th birthday thereafter. To put it bluntly: the Mother controls the child’s time with her Father in every respect. The Mother said her legal advice at the time was not to deliver X to the Father unless Consent Orders were signed. Nevertheless, the Mother confirmed that when time recommenced between X and the Father there were still no Court orders in place.[29] Poor, inadequate, over-protective and uninformed parenting decisions by the Mother regarding X and her Father were again the order of the day.
[29] T 53 – 54.
The Mother advised that she subsequently agreed for unsupervised time to take place between early 2021 and mid-2021, notably, on the condition that the Father provided photographs of his home to confirm where the Father was living and provide reassurance that X was in a suitable environment. The Mother was asked by the Court whether she thought this was perhaps overly cautious noting she frequently confirmed that she did not believe X to be at risk in the Father’s care. The Mother retorted that it was practical to make sure that X was in an environment that was ‘good’. Clearly the Mother does not accept or think that the Father is capable of deciding what is, and what is not, a “good environment” for his daughter. The Mother confirmed such time arrangements proceeded despite no Orders being in place.[30] The somewhat colloquial description of “helicopter parenting” by the Mother, as well as complete directorial control of the Father’s time with his daughter, are again apposite descriptions.
[30] T56 – 57.
It was suggested to the Mother that the Father’s time with X had not gone ‘smoothly’ during this period, raising the allegations or at least “suggestions” by the Mother that X had been physically disciplined by the Father. The Mother advised that X had told her that she had been smacked by the Father during this time. The Mother acknowledged that children sometimes ‘make things up’, and further that she believed the Father when he denied the allegation. However she went on to state that she believed ‘something’ had happened that led her to instruct her lawyers to write a letter to the Father about the incident.[31] Plus ca change about the Mother jumping at shadows, which (absent clear change on the Mother’s part regarding her constant and troubling anxiety) does not augur well for any reasonable, balanced co-parenting relationship now or in the future.
[31] T 57 – 58.
The Mother was taken through another incident that occurred at changeover in early 2021. The Father sent a text to the Mother about some scratches and a bruise on X’s face asking the Mother if he knew how they had occurred. The Mother acknowledged this was true. The Mother was then asked whether her parents then proceeded to attend the City B Police Station to report the Father. The Mother did not answer but instead advised that the Father had threatened to go the police, the inference being that X was delivered to the Father with the scratches from the Maternal Grandmother. The Mother further stated that she had been at a work conference at the time and was not involved in the incident and blamed a ‘lack of reporting’ for the issues that continued to arise between the parties. The Mother denied that X was delivered to the Father with the scratches and sought an explanation from the Father as to how the scratches occurred. When asked whether this meant the Mother was assuming the scratches had occurred in the Father’s care, the Mother denied this.
The Mother was subsequently asked whether she believed changeovers between the Maternal Grandmother and the Father were “fractious”. The Mother denied this was the case, and explained that she does not “think they’re that bad”.[32] Again, the Mother’s evidence was both confusing and confused, and needlessly hostile to the Father. Her ongoing inability to answer questions directly and simply remained an unfortunate feature of the Mother’s evidence. It was almost the case, it seemed in certain respects, that the old adage of “giving someone enough rope and they will [metaphorically] hang themselves” was readily in play throughout the Mother’s evidence. Every attempt to rein in her volubility and expansive responses was fruitless.
[32] T 58 – 61.
Questions in relation to this “non-incident” continued.
The Mother was read subpoena material from police and asked whether she agreed that she had told police X had scratched herself playing with her toys. The Mother denied telling the police this, advising she did not recall the conversation at all.[33] Again, the Mother’s evidence spoke for itself – again, quite disconcertingly.
[33] T 64
Counsel for the Father also canvassed with the Mother her former family law proceedings in relation to her daughter D. The Mother was asked whether she had made allegations against D’s Father regarding injuries to D during the proceedings. The Mother confirmed that she had. The Mother’s attention was drawn to a particular incident in which she took D to the hospital due to a scratch she noticed following unsupervised contact with D’s Father. The Mother responded that D had been a baby at the time, and the scratch had been on her face and “quite substantial”. The Mother acknowledged that she had been acting “protectively” and the circumstances of the situation were different. The Mother was taken through various reports to the Department at the time she had made regarding injuries she said were sustained in the Father’s care. To each, the Mother responded that D was a baby at the time, and that she understood what Counsel for the Father was implying but circumstances were different. When asked whether it was the case that D no longer has a relationship with her Father, the Mother confirmed this was true.[34] “Troubling” and “alarming” readily come to mind about the Mother’s concerning evidence.
[34] 65 – 67.
The Mother was also asked about a birthday party X was unable to attend for members of the paternal family. The Mother confirmed X could not attend as D was having a birthday party on the same day. It was noted that the date of the birthday party for the paternal family members was changed, however the Mother still did not permit X to attend. It was further put to the Mother that the reason for her refusal was because of a risk to X’s health or a seizure occurring due to overheating that could lead to injury. The Mother advised that X was having health issues investigated at the time. The Mother was asked whether it was possible X was picking up on the Mother’s anxieties around the child’s health. The Mother said she hoped this was not the case.[35] Some have said that “hope” is an over-rated virtue. I think otherwise, but nonetheless, it would be mandatory here, but not for the reasons advanced by the Mother.
[35] T 67 – 69.
The Court asked the Mother how she intended to manage her anxieties if her parents intended to move to Queensland before the Mother was permitted to relocate. The Mother responded that she would need changeovers to be at a venue she felt comfortable with, such as a police station, with very minimal communication.[36] What the Mother considered was necessary to ensure that she felt “comfortable” was not explored. For my part, I have the greatest difficulty considering anything that would reasonably provide the comfort the Mother sought.
[36] T 71.
The Mother was also asked by the Court whether she saw herself as a very anxious person. The Mother acknowledged she has anxiety but hopes it does not intervene in good decision-making.[37] Thus far, the evidence would not support the Mother’s aspiration in this regard.
[37] T 74 – 75.
Next, the Mother was questioned about an instance in which she believed X potentially had chickenpox. The Mother acknowledged X did not spend time with the Father as scheduled, however no photos were ultimately provided to the Father of X’s rash as requested. The Mother advised she had made the decision not to permit time given the Father’s Wife was pregnant rather than permitting the Father to make this decision.
Similarly, the Mother was asked if she provided evidence to the Father of X having had COVID in early 2022. She said that she thought she had provided evidence of the positive diagnosis, however it was indicated to her that she had failed to respond to requests by the Father for updates on X’s health. The Mother was asked, if in the reverse situation, she would feel anxious if the Father did not provide her with updates while X was unwell. The Mother acknowledged that she could understand the anxiety, but said she had communicated some symptoms to the Father. The Mother also acknowledged the Father had pressed for updates on X during this time and continued to point out that she believed she had provided some communication about X’s symptoms.[38]
[38] T 75 – 78.
Another incident was canvassed in which the Mother decided to withhold X from the Father’s care after X sustained a burn. The Mother acknowledged that the Father had been provided with an email about the injury sustained in the Father’s care and instructions with the hospital discharge report. When asked why X could not return to the Father’s care the Mother advised that X was distressed. The Mother had been asked to provide X’s hospital report to the Father; however, the Mother had advised the Father that it would be coming to him via her lawyer. When asked why she could not simply provide it to the Father by email herself, the Mother said she was only doing what she thought was the right process. The Mother proceeded to confirm that she had no issue with providing any information to the Father. Clearly and unfortunately, this was not the case. In my view, the Mother’s evidence makes plain that the most simple and straight-forward issue, such as providing information to the Father by email, is a completely fraught exercise. By her actions, she regularly turns basic, small issues into major impediments for the Father/child relationship. It is a very sad situation – for everyone. Thus far, the Mother’s therapy seems to have assisted her very little to overcome her deep anxiety. Moreover, the history of complete estrangement between D and her Father is likewise extremely troubling.
Nevertheless, upon the Father obtaining the report directly from City B Hospital, the Mother was read the hospital notes (dated early 2022) which provided that the Mother’s “concerns” had been reported to child protective services by a clinician and that the Mother was due to meet with those services. The Mother confirmed that she believed the Father had been negligent in his care as the burn had been “non-common” and very alarming.[39] Full “disclosure” and transparent communication between the parties clearly does not occur.
[39] T 80 – 83.

The following outline of principle is taken from a number of well-known cases to which I have referred in a range of earlier or recent judgments.
In U v U, Gummow and Callinan JJ stated the perhaps obvious point that becoming a parent has implications for a person’s freedom to do as he or she wishes, including very often where he or she chooses to live. Being a parent necessarily imposes obligations and restrictions. Their Honours said, at [92]: [122]
… maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.
[122] U v U (2002) 211 CLR 238.
In the same case, Hayne J said, at [176]:
… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
In AMS v AIF, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[123]
[123] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[124]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[124] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ were in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments remain important.
Somewhat more recently, Warnick J stated that:[125]
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[125] B & B [2006] FamCA 1207 at [1]. Warnick J was sitting as the Full Court, pursuant to s.94AAA of the Act.
Respectfully, I agree with Warnick J, and the earlier statements of the High Court to which I have referred.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[126]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[126] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
It might be noted more summarily that Austin J (sitting as the Full Court, albeit in an appeal from an interim judgment) said in Franklyn & Franklyn, at [41]:[127]
… [a] primary judge [is] obliged to give sufficient reasons to explain the overall result: not to explain every forensic step in reaching that result.
[127] Franklyn & Franklyn (2021) FLC 94-031.
Two other preliminary comments are also important to record here. First, the Full Court observed in Wiley & Wiley (a “relocation case”):[128]
... it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
[128] Wiley & Wiley [2008] FamCAFC 153 at [70].
Secondly, in U v U, Kirby J emphasised the importance of considering the long-term interests of the child rather than just focusing on their short-term interests.[129]
[129] U v U (2002) 211 CLR 238 at p.283 [164]. His Honour observed: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such [relocation] cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
It is also important to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have proper regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[130]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[130] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[131]
[131] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. The Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[132]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[132] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[133]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[133] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[134] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].[135]
[134] McCall v Clark (2009) 41 Fam LR 483.
[135] Sigley & Evor (2011) 44 Fam LR 439.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
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. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Finally, I consider – briefly – such matters not otherwise addressed in these reasons that might be said to arise out of parenting matters that involve “relocation.”
Albeit of some modest vintage, in F v F, I set out a summary of relevant principle drawn from High Court and Full Court authorities in relation to relocation.[136] That summary is set out below, but with an edited selection of internal citations quoted; thus:[137]
[136] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) [2010] FamCA 1138 at [244] & [245].
[137] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-438 at [100], and Cales & Cales (2010) 44 Fam LR 376 at [139].
a)   In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. Powell v Ptolemy, [48]).
b)   The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[138] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
c)   Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]. Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[139] Freedom of movement, however, takes second place to the paramount interests of the child.
d)   There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)   The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether relocation is, or is not, in a child’s best interests.
f)   Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation” [93].
g)   In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171] & [172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
h) This summary of principle must, of course, be understood in the context of the ‘prescribed legislative pathway’ or scaffold in Part VII of the Act, to which I have already referred. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
[138] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[139] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].

To this instruction, I note the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[140]
[140] McCall v Clark (2009) 41 Fam LR 483. See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
I draw attention also to the recent comments of the Full Court in Blanding, which involved a parent seeking to relocate, who was permitted to do so.[141]
[141] Blanding v Blanding (2016) 55 Fam LR 218.
At [166], the Court said:
… the apportionment of weight or importance to evidence is a matter for the exercise in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
In the earlier [2019], same-named Full Court decision in Franklyn & Franklyn, at [27] and [28], the Court said (some internal citations omitted; emphasis added):[142]
[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) …
[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 ... 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).
[142] Franklyn & Franklyn [2019] FamCAFC 256.
It is as well to note the recent Full Court’s comments in Hendy & Penningh, which provide a neat summary or overview regarding parenting matters that involve relocation.[143] At [50], the Full Court said:
As the Full Court said in Malcolm and Munro (2011) FLC 93-460 at [83]:
We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
[143] Hendy & Penningh (2018) FLC 93-879.
Also in Hendy, at [84], the Full Court commented on the proper assessment to be made of “family violence” and its import for the making of Orders such as for equal shared parental responsibility (emphasis added):
We agree with counsel for the mother that it was necessary for the primary judge to consider the totality of the evidence concerning family violence and reflect on the reality of how these parents could give effect to an order for equal shared parental responsibility before an order of that type could be made. To isolate the relevance of evidence of family violence merely to the application of the presumption of equal shared parental responsibility was wrong. It was plainly relevant to the broader question of the allocation of parental responsibility once that issue was at large.
And finally, I recall the Full Court’s recent comments in Asher v Wilkinson, where the Court said, at [39], by reference to the High Court decisions earlier noted in these reasons:[144]
We pause here to observe that the task before the primary judge was to determine what parenting orders were in the child’s best interests. It was not to determine the location in which the mother was “permitted” to live. The use of that phrase in the context that it was used tends to focus on the mother having to justify to the Court where she wishes to live and obtain its approval. The use of that phrase obscures, if not overrides, the mother’s undoubted right to live where she chooses as explained in AMS v AIF (1999) 199 CLR 160 at [92] and [191] and U v U (2002) 211 CLR 238 (“U v U”) at [37], [137] and [176].
[144] Asher v Wilkinson (2021) 61 Fam LR 523.
Consideration and disposition
Summarily, I note the following as formal determinations of the Court, by serial reference (sometimes stated, sometimes implied) to the legislative pathway in s.60CC(3) of the Act.
Given X’s age, there are no “views” for the Court to consider.
It is not, and cannot be, disputed that X has a good and close relationship with both parents, and with wider members of both maternal and paternal families. Nor is there any dispute that X has lived primarily with her Mother all her young life, and continues to do so.
It is also not disputed, to the degree that it can be recorded, that X has a close relationship with D, her older sister from an earlier relationship in the Mother’s household, and with her baby sister, F, in her Father’s household. The Father lives with his fiancée, Ms E, F’s Mother. It also seems not to be disputed that D’s Father is “not on the scene” for reasons that were not really addressed by the Mother but more hinted at by the Father as being somehow part of the fall-out from the Mother’s relationship with her previous partner. In my view, this was another, somewhat concerning “grey and not fully explained area”. Generally, as a “precedent” of sorts where one Father and former partner of the Mother is no longer engaged with D, it causes more questions than answers, which might otherwise be quite innocent. Such matters, in the absence of specific evidence, are essentially “noted” with a degree of concern but otherwise the Court cannot do much with the Mother simply acknowledging the situation but otherwise not directly addressing the issues behind the circumstance regarding D and her Father.
The matters contemplated or prescribed in s.60CC(c), (ca), (f), (g) and (i), have been canvassed above almost ad nauseam throughout the evidence of the parties.
Summarily, each parent patently loves X. The evidence plainly confirms that neither parent would deliberately do anything to harm or distress X. Their capacities, however, to engage with each other, and/or to consult or “play well with each other” in a co-parenting relationship is also plainly compromised on multiple levels. The Father has regularly sought to spend extra time with X only to be regularly thwarted. The Mother’s levels of anxiety regarding X and all things related to the child (real and imagined) seems to be quite unabated. Distance will not, certainly according to Ms G, solve or seriously salve this anxiety. In the expert’s view, the Mother has seriously under-estimated the difficulties for X and herself associated with any relocation to Queensland. I firmly share the expert’s views in this regard.
Further in relation to these sub-paragraphs, both parties also clearly have difficulties in communication, which, in turn, has caused very significant difficulty regarding decision-making regarding issues for X. This extends to often unrealistic expectations about information-sharing, and responses, but no less so to regular lack of appreciation and judgment about what should, and what should not, be communicated to or with the other parent.
As “suggestions” only (unless otherwise stated to the contrary): (a) absent genuine emergency situations, and absent any other agreement in writing, the parents should only communicate via a parenting App (as proposed by the ICL, this will be an Order) and (b) the parents should set up a regularly, facilitated “parenting business” meeting, with a limited, agreed agenda and information-sharing list of items (regarding past, present and future issues) regarding X. Such regular meetings, which could be, for example, every second or third month, or such other agreed time-frame and frequency (sometimes with older children, parents get by with either three per school term or even less). Such meetings are usually facilitated by, for example, a counsellor, psychologist or family lawyer, whichever works best for everyone, including cost. It is not specifically meant to be some sort of either “group counselling”, or (and still less) a “grievance session.” The focus has to be, and must remain, on X’s best interests, accepting that each household has, among other things, one of her siblings.
Were the Mother to relocate to Queensland, the obvious practical issues (including the very significant cost of travel) is a clear factor to be considered under sub-paragraph (e). With the parents living in the City B area, such considerations rather quickly fall away.
There is no question also that there have been historical issues of family violence. They have been noted and discussed earlier in these reasons.
In my view, a very significant matter to consider, noted a number of times in these reasons, relates to the consideration(s) under s.60CC(3)(d), notably the likely effect of any changes in the child’s circumstances … “including the likely effect of any separation from” either of the child’s parents, or from any other child or other person.
The Father’s concerns in this regard are clear. So too are those of Ms G, but understandably more nuanced than the Father. My views and serious concerns in this regard are canvassed throughout these reasons. I have next to no faith in the Mother’s ability to promote the child’s relationship with the Father the further removed X is from her (and his) current locale. That said, I also consider it not to be in X’s best interests, especially given her current age, for her primary residence to change noticeably. The Mother’s evidence, as noted multiple times, is so troubling that the risk to the Father/child relationship is so great, were the Mother and child be permitted to relocate to Brisbane, that it cannot be in X’s best interests at all to be so far removed from her Father. The child’s relationship with the Father, in my firm view, would not survive such a long-distance move by the Mother and X.
Conclusion
In the light of all the evidence, and the detailed submissions, the realistic and proper choices facing the Court regarding X’s best interests come down to two only. This is also to say that I cannot, and do not, find that it is in the child’s interests to relocate with her Mother to Queensland. The risks to the child significantly outweigh the putative or any other possible benefits of such a course as proposed by the Mother. Accordingly, the parenting options available to the Court are the Father’s position of a change in residence, which I have already “ruled out” as not supported by the evidence, and the Mother’s secondary, or fall-back, position of the Mother and child remaining in the City B area and ultimately for X to spend a maximum of 5 nights per fortnight with the Father. The Mother’s spend time with Orders sought in this regard should be preferred to those of the Father.
In relation to parental responsibility, this issue is no less fraught than the general parenting Orders. For reasons already given at length, I have little confidence that the Mother would properly and fairly consult with and involve the Father in relevant decisions regarding X were she to have sole parental responsibility. It is not simply or solely something of a default Order for equal shared responsibility. Rather, in my view, especially in the light of the Orders and “recommendations” made in this judgment, in my view it is worth the relevant risk to give the parents a chance to put their money, or promises of better co-operation, to the test and make the equal shared parental responsibility Order actually work and not just give it lip-service.
Such an Order requires the Court to consider whether an “equal time” Order is in the child’s best interests, pursuant to s.65DAA. The same section otherwise requires the Court to consider whether a substantial and significant time with Order is warranted. In my view, the Mother’s “fall-back” Orders satisfy the requirements of this section regarding substantial and significant time. An equal time arrangement is not, at this stage or in the near future, having regard to X’s age and development, in her best interests.
Finally, I recall the following matters of principle set out earlier in these reasons, notably in relation to “freedom of movement”, that there is no need for the “moving parent” to provide “compelling reasons”, and that ultimately, it remains the fact (and principle) that the child’s best interests must remain paramount. For example, in U v U, Gummow and Callinan JJ said, at [92]: [145]
… maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.
[145] U v U (2002) 211 CLR 238.
In the same case, Hayne J said, at [176]:
… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
As earlier noted, in Hendy & Penningh, the Full Court provided a summary or overview regarding parenting matters that involve relocation.[146] At [50], the Court said (emphasis added):
As the Full Court said in Malcolm and Munro (2011) FLC 93-460 at [83]:
We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
[146] Hendy & Penningh (2018) FLC 93-879.
The Orders made by the Court here are in the child’s best interests. X needs both of her parents. In my view, the evidence clearly and alarmingly points strongly to the risk to X’s relationship with her Father (and his family, including younger sister, F) being significantly compromised (or worse) should the Mother be permitted to relocate to Queensland. If the Orders are fully implemented and made to work by the parties, they will significantly allow everyone’s best interests to flourish (especially X, who also needs both of her sisters), including preventing further litigation. I urge both parties, and the Mother most particularly, to seek assistance to deal with her range of issues, notably her severe anxiety. One also hopes that once the dust of litigation subsides, a degree of equanimity might ultimately prevail in both households and the recent and very difficult discord becomes a distant memory.

I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 31 August 2023

File number(s):	CAC 1272 of 2020
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	30 August 2023
Catchwords:	FAMILY LAW – Parenting – relocation – where the Mother seeks to relocate with child to Brisbane, QLD from City B, NSW with the maternal Grandparents – where the Father lives in the City B region – Mother has child from previous relationship – Father has re-partnered and has child with new partner – not in child’s best interests to relocate with Mother as risks to child outweigh any benefit – fraught relationship between the parents characterised by history of family violence – significant concerns Father’s relationship with the child may not survive if permitted to relocate with the Mother – Mother demonstrated significant anxiety and significant difficulty facilitating child’s relationship with the Father post-separation– Mother pled guilty to family violence offences against Father – gradual increase in time with the Father to 5 nights per fortnight – parties to share parental responsibility
Legislation:	Family Law Act 1975 (Cth) ss60CA, 60CC, 61DA, 65DAA
Cases cited:	Asher v Wilkinson (2021) 61 Fam LR 523 AMS v AIF (1999) 199 CLR 160 B & B [2006] FamCA 1207 Blanding v Blanding (2016) 55 Fam LR 218 Cales & Cales (2010) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 F v F (2008) 38 Fam LR 52 Fox v Percy (2003) 214 CLR 118 Franklyn & Franklyn [2019] FamCAFC 256 Franklyn & Franklyn (2021) FLC 94-031 Godfrey v Sanders (2007) 208 FLR 287 Hendy & Penningh (2018) FLC 93-879 Hepburn & Noble (2010) FLC ¶93-438 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 Payne v Payne [2001] Fam 473 Sheldon & Weir (No.3) [2010] FamCA 1138 Sigley v Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153
Division:	Division 2 Family Law
Number of paragraphs:	225
Date of last submission/s:	10 March 2023
Date of hearing:	14 – 16 December 2022
Place:	Canberra
Counsel for the Applicant	Ms E Swart
Solicitor for the Applicant	Hijazi Curran Cameron Lawyers
Counsel for the Respondent	Mr S Schonell
Solicitor for the Respondent	Fox & Staniland Lawyers
Independent Children’s Lawyer	Legal Aid ACT

CAC 1272 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DEACON Applicant
AND:	MR GROVER Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	31 AUGUST 2023