Deeks & Hilding - [2024] FedCFamC2F 355

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deeks & Hilding [2024] FedCFamC2F 355

File number(s): ADC 4503 of 2023

Judgment of: JUDGE BROWN

Date of judgment: 22 March 2024

Catchwords: FAMILY LAW – Parenting – child aged three years – unilateral relocation – mother has moved child from Adelaide to Sydney – child has been in NSW for a period in excess of twelve months – father seeks compulsory return of mother and child to SA – high conflict – allegations of substance abuse and family violence – emergency facing mother at time of relocation – best interests – stability of care arrangements – logistical considerations relating to spend time with arrangements

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
AMS v AIF; AIF v AMS (1999) FLC 92-852

B v B (2006) FamCA 1207

C & S [1998] FamCA 66

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Fragomeli & Fragomeli (1993) FLC 92-393

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 FamLR 518

Moose & Moose (2008) FLC 93-375

Morgan & Miles [2007] FamCA 1230

SS v AH [2010] FamCAFC 13

U v U (2002) FLC 93,112

Zawaii & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 207

Date of hearing: 12 March 2024

Place: Adelaide

Counsel for the Applicant: Ms Hume

Solicitor for the Applicant: Moloney and Partners

Counsel for the Respondent: Ms Van Oosterom

Solicitor for the Respondent: Orbell Family Lawyers Pty Ltd
ORDERS

ADC 4503 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DEEKS

Applicant

AND:
MS HILDING

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

22 MARCH 2024

THE COURT ORDERS, UNTIL FURTHER OR OTHER ORDER THAT:
1.The child X born in 2020 (hereinafter referred to as ‘the child’) live with the respondent mother.
2.The child spend time with the applicant father on a monthly basis as follows:
(a)For a minimum of two (2) hours or such longer period as may be directed by the Director of the applicable service or his/her nominee every first, second and third month in Sydney NSW, with such time to be supervised at a Children’s Contract Centre to be nominated by the mother within 7 days of the making of these Orders, or such other supervision service in Sydney NSW as agreed to in writing between the parties;
(b)For a minimum of two (2) hours or such longer period as may be directed by the Director of the applicable service or his/her nominee every fourth month in Adelaide SA, with such time to be supervised at a Children’s Contract Centre to be nominated by the father within 7 days of the making of these Orders or such other supervision service in Adelaide SA as agreed to in writing between the parties; and
(c)At any other times agreed between the parties.

3.To facilitate order 2 above, each party shall do all things necessary to complete their intake assessment and provide all information and documents as requested by the supervision service within seven (7) days of such request, with the parties to share equally in the costs of the supervision.
4.At the conclusion of the supervised time spending specified in order 2 above, the father is to obtain a report from the Director of the Centre located in Adelaide and the mother is to obtain a report from the Director of the Centre located in Sydney regarding the child’s reactions to the visits.
5.The mother facilitate the child’s video communication with the father each Sunday at 4.00 pm (Sydney time) with the mother to initiate the call to the father’s mobile number or at any other times agreed by the parties in writing.

THE COURT FURTHER ORDERS THAT:
6.Within 7 days and pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the parties are to agree a valuer to be appointed as the Single Expert (“the Single Expert”) to value any asset the value of which is in dispute.
7.Within 14 days of the date of these Orders the parties must send a joint letter of instruction to the Single Expert requesting that they prepare a report (“the report”) as to valuations.
8.Each of the applicant and the respondent shall meet one-half of the Single Expert’s fees to prepare the report. Within 14 days of the date of these Orders, each party must exchange with each other party a copy of each of the following documents (to the extent such documents have not already been provided):
(a)the documents mentioned in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
(b)statements for all bank or credit union accounts (including loan, mortgage and credit card accounts) in which the party has an interest for the period from 12 months before the date of separation to the date of these Orders;
(c)any documents which:
(i)support the information contained in the party’s Financial Statement;
(ii)estimate the value of any vehicle in the party’s possession;
(iii)confirm the date of receipt and amount of any inheritance, gift, redundancy or compensation payment received by the party from the date of cohabitation to the date of these Orders;
(iv)detail the party’s acquisition or disposal of property for the period from 12 months prior to the date of separation to the date of these Orders;
(v)evidence any increase or reduction in the liabilities of the party for the period from 12 months prior to the date of separation to the date of these Orders;
(vi)confirm the value of any superannuation fund in which the party has an interest at the date of cohabitation, the date of separation and the date of these Orders.

9.Within 21 days of a party receiving a written request for a document from another party to these proceedings, the first-mentioned party must provide a copy of the requested document(s) to the requesting party to the extent they are within the first-mentioned party’s power, possession or control.
10.The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Judicial Registrar on 10 July 2024 at 9.00 am.
11.The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.
12.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the applicant father must pay the Conciliation Conference fee no less than 14 days prior to the Conference and the respondent mother do reimburse the applicant father with one half of such fee within 7 days of being provided with evidence of payment of same.
13.Not later than 25 June 2024, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court (by email to […]) and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution)
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders;
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v)particulars of any financial resource;
(vi)a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii)statements for, and where applicable, valuations of any superannuation interest;
(viii)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

14.Further consideration of the matter is adjourned to 23 July 2024 at 9.30 am for directions NOTING liberty to apply on short notice is granted to the parties in the event logistical issues arise.

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 BROWN:
INTRODUCTION

This is what lawyers invariably refer to as a unilateral relocation case. Such cases arise when a child is moved far away, from one parent, by the other, without the first parent’s clear prior approval having been given.
The Family Law Act 1975 (Cth) emphasises the importance of parents sharing responsibility for the care of their children and encourages them to make joint decisions in respect of major long-term decisions in regard to them, one of which includes a change of a child’s living arrangement which makes it significantly more difficult for the child to spend time with a parent.
For obvious reasons, such moves have serious implications for the degree to which the child concerned can have a meaningful level of relationship with each of his or her parents. The implications intensifying with the extent of the move and the age of the child involved.
Necessarily, children of tender years are liable to be more detrimentally affected by moving far away from a parent than older children, whose parental relationship may be more fully developed and capable of being maintained over distance.
For these reasons, it is generally better the parents themselves attempt to resolve the issue of a proposed relocation consensually, or, if an adjudication of the issue is required, that it occurs fairly, after all relevant evidence has been obtained and thoroughly tested and each parent feels that he or she has been properly heard about all the issues in the case.
Accordingly, in general terms, the legal principles relevant to relocation eschew a parent exercising self-help in respect of relocation or of acting unilaterally, in regard to moving a child away from the other parent concerned. Necessarily, it is much better that these challenging issues be dealt with on a level playing field not one skewed to the advantage of the parent wishing to move through an exercise of self-help.
However, human circumstances being what they are, it is inevitable that situations of emergency or familial crises, will arise, which lead to a child being moved interstate, without formal approval having been given. Essentially, the moving parent had no viable option other than to move.
That is the situation, which has arisen in the current matter, which is highly controversial and emotionally charged. One party asserts the move was dictated by a severe emergency relating to protecting a child from exposure to family violence. The left behind parent asserts the move was tactically motivated and the protective concerns over-stated and exaggerated.
At this early stage of proceedings, one parent seeks to compel the return of the child concerned to Adelaide and by obvious implication direct that her mother should live in a location which is unpalatable to her; whilst the other parent asserts that such a compulsive order would be oppressive to her and not in the best interests of the child concerned.
In these invidious circumstances, the court is called upon to adjudicate issues of a contested relocation in the context of a truncated hearing, in which there is limited evidence available to it and certainly no opportunity to assess the credit of the parents concerned, particularly in respect of the circumstance surround the move.
As a result, the court is required to determine, as best it can, from the evidence available, issues, which focus on the following broadly expressed issues:
·What was the urgency or emergency of the situation which led to the move of the child in the first place;
·What are the risks for the child, in both physical and emotional terms of either returning to the previous location or remaining where the child is and what is the proportionate response to the degree of risk so assessed;
·How stable is the child’s placement in the new location. In this context, the following issues are likely to be germane:
·Who has been and remains the child’s primary carer;
·How long has the child been living in that location;
·How easily can the moving parent return to the location left behind;
·What are the implications likely to arise, both in financial and emotional terms, if the moving parent, if compelled to return, including what the impact on that parent of being able to discharge the necessary parental duties for the child to the highest degree possible.
Australia is a free and democratic country, in which a citizen’s freedom to live wherever he or she chooses is prized and protected by the law. At the same time, in determining this case, the court must bear in mind that it is the interests of the child concerned, which are the paramount, or most important consideration in its deliberation, not necessarily the right of a parent to move.
The High Court has commented that the obligations of being a parent are necessarily restrictive in nature and potentially life long.[1] In this context, in some cases, it may be incumbent upon the court to consider the ease with which the parent left behind can move to be closer to the child concerned, in order to facilitate any parent/child relationship likely to have the potential to be beneficial for the child.
[1] See U v U (2002) FLC 93,112 at 89,082 per Gummow & Callinan JJ.
In summary, relocation cases represent an imbroglio of competing considerations, which are not amenable to an easy or final resolution, particularly at an interim hearing stage.[2] As a consequence, a temporary solution to the difficulties thrown up by such cases may be to expedite any final hearing.
[2] See B v B (2006) FamCA 1207 at [1].
In this context, it is important to emphasise to the parties concerned, in this case, that I am not determining the final arrangements for the care of the child concerned. Rather, I am making an interim and potentially provisional hearing, which is capable of being modified or changed at a later stage.[3]
[3] See Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120].
BACKGROUND
Mr Deeks (“the father”) and Ms Hilding (“the mother”) are the parents of X, who was born in 2020.
At the present time, X is living in suburban Sydney, in the care of her mother, and has done so since December of 2022. Prior to that time, X had lived predominately in Adelaide, where her father remains.
The parties have never been married. Mr Deeks is a tradesperson by occupation. In 2015, he was working at a property partially owned by Ms Hilding in Suburb C, a suburb of Adelaide, when the two met. They began a relationship soon after and Mr Deeks moved into the Suburb C home in late 2015.
At the time, Mr Deeks was on a tourist visa, visiting Australia from the United Kingdom, where he was born in 1986. Mr Deeks has no familial ties in South Australia. He has a Country B background.
Ms Hilding has owned a partial share in the Suburb C property, through various inheritances, since 2000. She shares the ownership of the property with her sister. It is subject to a mortgage. The father has asserted that he paid the mortgage from time to time. In the past, the property has provided a family home for the parties and X.
During the parties’ relationship, the parties lived predominantly in the Suburb C property, which was their home and that of X, after she was born. The parties also lived in New Zealand briefly, as well as having travelled to the UK. Mr Deeks was ultimately granted a partner visa in 2020.
The parties’ relationship fell into difficulties in late-2021. There appears to be no controversy that for the first 12 months of X’s life, Ms Hilding was the child’s primary carer. Later, Ms Hilding returned to the workforce, on a part-time basis and during her work hours, Mr Deeks provided care for her, with the assistance of Ms Hilding’s sister.
Ms Hilding, who has qualifications as a professional, was born in 1975. It is her case that she has significant familial support, in Sydney. It is the case that she has had employment in South Australia, including in the remote part of the state.
The parties agree that they separated, under the one roof of the Suburb C property, at sometime during the pandemic emergency. They have different views as to the factors which brought about their separation and the implications of those factors for the safety and well-being of X.
From Ms Hilding’s point of view, Mr Deeks was not a particularly competent parent but preferred to drink heavily and to smoke cannabis, which he did on a daily basis. It is her case that he was frequently abusive and threatening in his behaviour towards her, which caused her to be afraid of him.
On the other hand, it is Mr Deeks’ position that he was closely involved in parenting X but had different views to those of Ms Hilding as to the best means to care for X, which led to conflict between them. It is his position that Ms Hilding was unduly critical of him and restrictive of his relationship with X.
Other complex controversies seem to have arisen between the parties regarding how they were to disentangle their financial affairs. It being the father’s position that he had made significant investments in the Suburb C property, in the form of renovations and mortgage payments, which represented de facto property contributions, to which he was entitled. Ms Hilding, being a co-proprietor of the property, had a different view and challenges the weight given to such contributions.
In all these circumstances, it seems a reasonable inference for me to draw that the parties living separately and apart, but under the one roof, whilst engaging in the parenting of a toddler, represented an extraordinarily stressful and difficult situation, which was untenable in the longer term.
In these difficult circumstances, in late 2022, Ms Hilding and X left the Suburb C home to house sit the home of one of Ms Hilding’s friends. She did not tell Mr Deeks where she was going, which led to conflict and police involvement. At the time, there was an arrangement which involved the father taking X to sports lessons.
Mr Deeks was disinclined to vacate the Suburb C property, which he has described as his home of approximately 7 years. Mr Deeks concedes that he has had little, if any, physical contact with X since late 2022.
In my view, in the overall context of this case, the effluxion of time must be a significant factor. It is the father’s view that he has delayed bringing proceedings as an act of good faith in the hope that the parties could reach an agreed position about property and arrangements for X’s care. However, he asserts that Ms Hilding has refused to engage with him and has been deceitful about her true intentions, essentially as a delaying tactic.

From the mother’s perspective, the situation of she and X remaining in Adelaide was untenable as she was frightened for her safety and felt disempowered and emotionally drained by Mr Deeks’s refusal to vacate the Suburb C home, which clearly could not be occupied by both parties, given the conflict between them and the threat which it represented to X.
In this context, I have been provided with information from the South Australia Police pursuant the recent initiative agreed upon between the Family Law Courts and SAPOL to exchange information relevant to parties in family law proceedings. This indicates that Ms Hilding made two complaints to police, in late 2022, which police described as domestic abuse no offence.
In respect of the first report, Ms Hilding is recorded as having indicated to police that she and Mr Deeks were in conflict because neither party wished to move out of the Suburb C home. She further reported that there had been an altercation between the parties, to which X had been exposed, regarding a dispute as to whether the child should have a nap. Ms Hilding reported that Mr Deeks had indicated that she needed a good backhand and had yelled at her she needed mental health help because she was damaging X.
In the report of 5 November 2022, Ms Hilding confirmed that she and Mr Deeks continued to live together but neither had agreed to move out. An argument had arisen about the bathing of X, which Ms Hilding asserted the father had escalated to a threat to kill her, if she did not give him the child’s toothbrush. The police report goes on as follows:
[Ms Hilding] stated that she did not believe that he would do that. [Ms Hilding] stated she had never been physically assaulted by [Mr Deeks].
The father concedes that he has been a user of marijuana during the parties’ relationship, as was Ms Hilding. However, she ceased her use when she fell pregnant. The father also concedes that the mother was not happy about his marijuana use but allowed him to smoke the drug on the proviso that he did so outside and removed a jacket, when he came inside the home, to avoid smoke contamination.
Mr Deeks denies that his alcohol consumption was problematic or that he has ever been physically violent towards the mother. He asserts that she hit him in the stomach and both parties were frequently verbally abusive to one another, to which X was exposed.
As I understand his case, it is the parties each were guilty of situational family violence towards one another, which is not acceptable but was a product of the stressful circumstances of their separation under the one roof.
Given these factors and the fact that the parties are now finally separated, it is his position that the volatility in the parties’ relationship, to which both contributed has now dissipated and the risk of Ms Hilding (or indeed he himself) being subject to family violence is not a significant one.
It is the father’s position that notwithstanding the complexity of the parties’ situation, he was desirous of reaching an accommodation with Ms Hilding, concerning both parenting and property issues, through mediation and he formally proposed such a course, through his solicitor, in early 2023.
It was his understanding, at this stage, that Ms Hilding and X had travelled to Sydney, for the purpose of having a holiday, over the Christmas period, which had occurred in the past. Necessarily, he did not think the move was a permanent one.
From Ms Hilding’s perspective, the father’s refusal to vacate the Suburb C property was intimidatory and frightening to her. She felt bullied by Mr Deeks and vulnerable. As such, she felt she could not return to Adelaide because she had nowhere to live. It seems to me that this impasse created something of a stalemate, which neither sought to resolve by seeking a sole occupation order. Correspondence appears to have passed between their respective solicitors, until Mr Deeks agrees that he vacated the property in early 2023 and advised Ms Hilding of this by text message.
Thereafter he instructed his solicitor to write to Ms Hilding’s then Adelaide based solicitor that he was in the process of instituting proceedings, which envisaged, on a final basis, a week about shared care arrangement for X and in the interim a graduated regime of increasing day time engagement on the basis that he had rental accommodation in Suburb D. The unwritten assumption of the letter was that Mr Deeks envisaged that, with his vacation of the Suburb C home, there was no impediment to Ms Hilding and X returning to Adelaide.
Ms Hilding’s then solicitor wrote back on 1 June 2023 indicating that she would continue to live interstate with X for the foreseeable future where she had the ongoing support of extended family in caring for the child. It would appear to be Mr Deeks’ position that this was the first time he became aware of the mother’s intention not to return to live in Adelaide and any prospect of negotiation and/or mediation occurring would be fruitless.
It would appear to be the case that Ms Hilding investigated the possibility of obtaining a Family Violence Order against Mr Deeks. However, those assisting her did not carry through the application on the basis that she had left South Australia and was not proposing to return. As a consequence, it was considered that she did not need the protection of such an order.
It is Mr Deeks’ position that Ms Hilding was not transparent with him about her intentions so far as travelling to Sydney and living there permanently were concerned and was not candid about her disinclination to engage in a formal process of mediation with him. This led to delays in him seeking the intervention of the court. Ms Hilding’s view is that Mr Deeks’ continued occupation of the Suburb C home made it impossible for her to negotiate in good faith with him.
Mr Deeks ultimately commenced these proceedings on 26 September 2023 – about ten months after X had left Adelaide. He was seeking final orders in respect of both property and parenting matters. At this juncture, it was his position that he did not know where X was living.
As previously indicated, it is common ground between the parties that Mr Deeks has had no physical interaction with X during 2023 and thus far in 2024. In his initiating affidavit, he deposed that he had been permitted to have a short FaceTime interaction, with X, by the mother on X’s birthday and Father’s Day and later it was agreed that he would have a more regular FaceTime call on a fortnightly basis on Sundays.
Ms Hilding has deposed that these calls do not go well and are stressful for X, who is disinclined to engage, whilst Mr Deeks lacks the skills to talk to a child of X’s age in age-appropriate conversation on the telephone. From the father’s perspective electronic communication is an inadequate substitute for direct physical engagement with a child.
The import of Mr Deeks’ case is that Ms Hilding is not supportive of his relationship with X and she has exaggerated her complaints of family violence in order to achieve the diminution of what was previously a positive relationship between X and him, which was based on him being a constant parental presence in her home and providing for her care on a constant basis.
On the other hand, it is Ms Hilding’s position that she had little alternative other than to leave South Australia, in circumstances in which Mr Deeks had behaved violently and threateningly towards her and was refusing to vacate what was legally her home, against a background of significant substance abuse. She disputes the extent of the father’s involvement in providing care for X.
It is Ms Hilding’s position that she and X are now well settled and happy in Sydney. She has recently obtained a part time job earning approximately $600.00 per week. She and X are living in a rented apartment, at an unspecified location in Sydney which she obtained in mid-2023. She asserts that the apartment, though small, is comfortable and adequate for their needs.
Prior to that time, it appears to be the case that she and X lived on a temporary basis in both Sydney and Brisbane. It would appear to be implicit in Mr Deeks’ case (although not explicitly put as such) that with his vacation of Suburb C and prior to her taking up the lease in Sydney, it was open to Ms Hilding to fairly easily return to Adelaide, where she could have obtained a family violence order, if she thought it was necessary.
In this context, the Child Impact Report may have some relevance. As will be explained in greater detail, it was the view of the relevant Child Court Expert that Ms Hilding’s asserted fears in respect of family violence, so far as she herself was concerned were tenuous and difficult to define. Given the contents of the police material, to which reference has already been made, at this juncture, I respectfully agree with this observation.
It is Ms Hilding’s case that she has extensive family support, in Sydney, as well as from community members from the church, which she attends. It is her case that her mental health remains compromised due to the conduct of the father towards her. She has not provided any expert evidence in this regard but asserts any amelioration in her condition will be lost if she is compelled, against her will, to return to Adelaide and her mental health will inevitably deteriorate.
It is her case that she cannot financially afford to return to live in Adelaide and the Suburb C property is now unavailable to her, due to it being rented. It is further her case that she is unable to live with her sister, in Adelaide, and her research has indicated that the rental market in Adelaide is currently extremely restricted.
It is further Ms Hilding’s case that Mr Deeks has no long-term ties to Adelaide and is currently living in rented accommodation in the city. As a consequence, given that she characterises him as experienced and skilled tradesperson, she asserts that he could easily relocate to Sydney, if he is sincere in his professed desire to maintain a relationship with X.
In addition, Ms Hilding maintains her position that Mr Deeks is not a proficient parent. Given the incontrovertible position that he has had no direct interaction with X for a period of approximately 15 months, she contends that the court needs to adopt an extremely cautious approach in respect of any process of reintroduction X to her father.
In these circumstances, it is her position that this can only occur in Sydney within the confines of the professional supervision offered by a child contact service. She has provided evidence to indicate that there is currently no waiting time at the Suburb E CCS. The costs of supervised time is on a sliding scale depending on means. It costs between $30.00 and $120.00 per hour.
Axiomatically, Ms Hilding asserts that it would be contrary to X’s best interests to compel her to relocate back to Adelaide, which would necessarily compromise her capacity to parent X to the maximum level of her capabilities, when Mr Deeks himself could more easily move to Sydney.
Mr Deeks asserts that it would be prohibitively expensive for him to have to travel to Sydney on a monthly basis to have only brief periods of time with X. He earns $1,316.50 net per week and after living expenses, he has little to pay for travel or accommodation, even if he had the time available to travel. He disputes the mother’s assertion that she could not move back into the Suburb C property.
It is his case that there is little objective evidence to sustain the mother’s allegation that circumstances relating to her fear of him compelled her to move many hundreds of kilometres away from him, with X, interstate. He disputes that he could easily get work in Sydney as he asserts that he has an injury. Like Ms Hilding, he has incurred significant legal fees.
He concedes past cannabis use but has provided a hair follicle test in late 2023, which is negative. The mother does not accept the efficacy of this and wishes there to be another one.
From Mr Deeks’ perspective, the obvious solution to the issue of how X can maintain a proper level of relationship with her father is for Ms Hilding to return forthwith to Adelaide, where she has lived for many years, where she has the support of her sister and owns a house.
He concedes that given his relationship with X has been disrupted, there is a need to move gradually and incrementally in re-introducing the two and this can be done much more easily and, in a child-focussed way if it occurs in a context in which all members of X’s immediate family are living in the same location.
Given the unilaterality of the mother’s relocation, it is his position that the obvious location for this should be Adelaide rather than Sydney. His material is largely silent on the prospect of him moving himself to Sydney. He is dubious about the efficacy of him being required to attend a CCS in Sydney.
THE PARTIES’ CURRENT APPLICATIONS
The mother formally responded to the father’s application on 1 November 2023, the same day as its first directions hearing. In these circumstances, it is the father’s position that his application to have X returned to Adelaide has been bedevilled by delay, not all of which can be laid at his feet and some of which can be attributed to the mother.
Thereafter the registrar has made orders, at which the SAPOL material was obtained and importantly a Child Impact Report commissioned. Mr Deeks was also ordered to undergo the hair follicle test referred to above.
The case was referred to me for the first time on 27 February 2024. I was concerned at how long the interim relocation issue had been outstanding and indicated to the parties concerned that this matter needed to be determined as soon as possible. Each party wanted to file an up-dating affidavit. This was the background to me listing the interim hearing late in the afternoon of 12 March 2024, which was the earliest I could come to it.
In general terms, the father seeks the following orders:
·The mother return X to Suburb C or an address within a radius of 20 kilometres of that address;
·The child live with her mother; and
·He spend time with X on an increasing basis so that after 12 months she spends six nights per fortnight in his care.
In general terms, the mother seeks the following orders:
·The proceedings be transferred to Sydney;
·X live with her;
·The child spend time with her father on a supervised basis each month in Sydney and in Adelaide every three months, in lieu of Sydney;
·The father have video communications with the child each Sunday at 4.00 pm Sydney time;
·The father complete a parenting course and a men’s behavioural change program;
·The father undertake a further hair follicle test;
·Each party be restrained from denigrating the other to X or exposing her to family violence; and
·The father be restrained from inquiring of X where she lives with her mother.
In my assessment, each party’s case represents something of an ambit claim and neither has advocated any alternate positions. In these circumstances, it would appear to be an unstated assumption of the father’s case that the mother should continue to be X’s primary carer, but in a location as directed by him.
He has not posited any outcome if Ms Hilding personally elects not to return to live in Adelaide or advocated that he should become X’s major provider of care in such circumstances. By necessary implication, he tacitly concedes that this would not be in her best interests.
Rather, he assumes that Ms Hilding will put X’s interests before those of her own and will comply with a compulsory order directing her to live with X in Adelaide. He makes this assumption in the absence of any proposal from himself in respect of potentially moving closer to X.
In this regard, these comments of the Full Court in Fragomeli & Fragomeli[4] appear to have some relevance, particularly given the effluxion of time which has occurred since Ms Hilding and X moved to Sydney, albeit I appreciate there is significant controversy regarding when and how she communicated her intentions in this regard:
The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare…
A child’s welfare may well be adversely affected if the custodian’s movements are restricted. It the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes to adopt, there may be frustration and bitterness which might adversely affect the child…
[4] Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023.
In the same context, Ms Hilding has not made any concrete proposals as to what sort of arrangements she would entertain for X if her father lived closer to her and nor has Mr Deeks considered his capacity to move. Rather, regrettably the court is presented with a zero-sum game.
In this context, I must remind myself that it is X’s best interests, which are paramount, not those of the parties. X is not to be awarded, like a prize, to the party I consider to be the more hard done by.
In addition, any resolution of the property aspects of the case seems to be far off. As yet, there has been no attempt at conciliation or mediation of this aspect of the case. I am gravely concerned at the potential exposure of each party to legal fees.
THE CHILD IMPACT REPORT
The Child Impact Report, prepared by Child Court Expert Ms F is a useful and thoughtful document in terms of defining the issues in the matter. Ms F was studiously careful not to trespass on the court’s fact-finding obligations, particularly in respect of the central evidentiary issue of who of the parties subjected the other to family violence.
In addition, she did not consider it was part of her role to make any recommendations as to whether Ms Hilding and X should be compulsorily directed to return to live in Adelaide, although she did question to some degree the rationale provided by Ms Hilding for moving to Sydney.
Ms F confirmed that each party attributed the unacceptable conflict in their relationship to the other’s conduct but interestingly each acknowledged that X had been exposed to her parents fighting with each other and she needed to be protected from further exposure to it.
She summarised the parties competing positions thus:
It is [Ms Hilding]’s view that [Mr Deeks] was the instigator of the conflict and his inability to control his anger in front of [X] makes him an unsafe person for [X] to spend time with. It is her view that her move to New South Wales was a protective act, protecting [X] from exposure to [Mr Deeks’] angry outbursts and marijuana use. It is [Mr Deeks’] view that [Ms Hilding] was controlling and had unrealistic expectations of his role in the relationship. It is his view that [Ms Hilding]’s move to New South Wales, with [X], has deprived [X] of a paternal relationship and is an attempt to sever the relationship between himself and [X].[5]
[5] See Child Impact Report dated 11 January 2024 at [27].
Interestingly, in the context of this summary of the parties’ polarised positions, Ms F did not make any explicit recommendation in respect of the central issue which arises in this case, at this stage, namely whether there should be an order requiring the compulsory return of X to Adelaide. Rather, she indicated that this was a matter for judicial determination.
Notwithstanding this indication, Ms F seems to have approached the case on the basis of an assumption that X would remain in her mother’s primary care and in this context thought needed to be given to how she could restore her relationship with her father.
Both parties presented well to Ms F and each described X to her in positive terms. This led Ms F to the view that each party had a good understanding of [X]’s developmental needs. She also was of the opinion, which is shared by the parties themselves that their respective approaches to parenting are quite different. She wrote as follows:
The parents, however, appear to have vastly different approaches to parenting and their styles of parenting are at odds with each other, leading each to view the others’ parenting style as deficient. [Ms Hilding] has a structured, more routine based approach to parenting whilst [Mr Deeks] has a more laisse faire approach to parenting. [6]
[6] Child Impact Report dated 11 January 2024 at [26].

Notwithstanding these differences in parental emphasis, it was Ms F’s opinion that the information gathered in this assessment lends support to [X] being given the opportunity to have a relationship with both her parents. This recommendation was subject to the proviso of any finding by the court in respect of the risk of X being exposed to family violence.
Ms F confirms what is readily apparent from the material provided to date that Ms Hilding must be regarded as X’s primary attachment figure. Indeed, it is implicit in Mr Deeks’ documents that he concedes that this is the case. In addition, it was Ms F’s impression that X was an energetic and somewhat headstrong child. She is developing appropriately.
Given the strength and importance of her relationship with her mother and the long period of separation from her father, Ms F wrote as follows:
Any future parenting arrangement should consider [X]’s sense of security and wellbeing with her primary attachment figure. It has been over a year since [X] has spent any face-to-face time with her father and, if safe to do so, she will need to be reintroduced to spending time with her father in a planned and considered manner. At [X]’s age, long periods of separation from a parent will likely impact the quality of the relationship with that parent. It may be considered that initially [X] will benefit from limited time with her father, perhaps with a third-party present for assurances, prior to graduating to unsupervised time, and then perhaps overnight time. A gradual progression of time will likely allow [X] to reconnect and develop a relationship with [Mr Deeks], and develop a sense of comfort in his presence, prior to spending significant time apart from [Ms Hilding]. [7]
[7] Child Impact Report dated 11 January 2024 at [23].
Ms F was critical of Ms Hilding for not considering the impact of severing X’s relationship with her father by moving to Sydney and thereafter the obvious implication of her not seeing him for well over a year. Underpinning this observation must be an assessment of the reason why she felt the need to move so far away from Mr Deeks. In this context, Ms F wrote as follows:
Whilst it is [Ms Hilding]’s view that she acted protectively in moving herself and [X] from Adelaide to Sydney, it does not appear that she considered the impact of severing the relationship between [X] and her father and what it would mean for [X] to spend no time with her father for over a year. It appears that [Ms Hilding]’s main safety concern stems from the risk she believes [Mr Deeks] poses towards herself. Her concerns around the risk [Mr Deeks] poses towards [X] appear more tenuous and were difficult to define.[8]
[8] Child Impact Report dated 11 January 2024 at [24].
Considerations such as this go to one of the central legal issues arising in the matter, at this interim stage, namely the degree of risk confronting Ms Hilding, when she decided to remain in Sydney and the overall circumstances of emergency which she faced. This is a view shared by Mr Deeks who contends that there is no cogent evidence that he represents any significant level of threat to X.
As previously indicated, I share Ms F’s concerns regarding the degree of risk facing Ms Hilding in Adelaide, in the latter part of 2022. Certainly, she took no proactive steps in terms of seeking a family violence order or obtaining some form of sole occupation order. It seems to me to be unassailable that Ms Hilding gave scant consideration to how X could maintain any form of relationship with her father over the significant distance between Sydney and Adelaide.
Necessarily, I appreciate at the same time, the obvious crisis which had enveloped the family in late 2022, regarding the Suburb C property, which Mr Deeks himself did little to defuse. In these circumstances, I can understand why Ms Hilding elected to go to Sydney at least for a holiday. Whether her holiday plans coalesced into something different, as time unfolded, is impossible for me to determine at this juncture.
It is clear from Ms F’s report that she considers that each party has positive parenting attributes to offer X and each has some level of understanding of her needs. This is the underpinning of her central observation that in order to serve X’s best interest she should be given the opportunity to have a relationship with both of her parents. At this juncture the means to achieve this objective are clouded with uncertainty and neither party seems prepared to compromise.
Ms F emphasised the need for X to have stability and predictability in her life, which obviously militated against any significant changes being made in her care arrangements. In these circumstances, mechanisms directed towards reintroducing X to her father needed to focus on X’s tender years, the period since she had physically interacted with her father and the distance between where the parties lived.
Given her understandable unwillingness to trespass on the issue of whether Ms Hilding should be compelled to return to Adelaide and Mr Deeks’s implicit unwillingness to move to Sydney, Ms F focussed on how, in the short term, X could re-engage, in a child focus way, with her father, in the challenging circumstances of the parties living far apart and having a severely compromised co-parenting relationship.
Ms F suggested as follows:
…consideration could perhaps be given to [X] spending limited supervised time, for a period of 12 weeks, with her father. If this time is progressing positively and no risk is identified by the supervision service, it could be considered that, on an interim basis, time between [X] and [Mr Deeks] may progress to a full day of unsupervised time between [X] and her father for a further period of six months, progressing to overnight time, once a month.
It is suggested that, on an interim basis, [X]’s time with her father alternate between Sydney every second month, and Adelaide in the intermediary month, and that each parent bear the responsibility for costs around travel in each alternate month.[9]
In broad terms, subject to her financial circumstances, Ms Hilding would fall in with such an approach.
LEGAL CONSIDERATIONS
[9] Child Impact Report dated 11 January 2024 at [30] – [31].
The nature of an interim hearing
It would seem that these proceedings are far from a conclusion. There is controversy about the venue of their final determination. Although the proceedings have been on foot since September 2023 there is still an atmosphere of crisis and controversy surrounding the family concerned and a decision has to be made about the city in X should live until the final hearing can be heard. Not least so that each party can have some certainty about their personal arrangements in the short to medium term and make any relevant decisions in the light of that decision.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Accordingly, the evidence available before the court at the interim stage is limited. As a consequence, any orders made by the court, at this stage, are provisional in nature, pending a further and more detailed inquiry or series of inquiries. Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings. .
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[10]
[10] See Goode & Goode (2006) FLC 93-286 at 80,901 [68].
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations to give greater weight to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[11] Brown J indicated that a meaningful parental relationship is one which is important, significant and valuable to the child concerned.
[11] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26].
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
As previously indicated the particular emphasis in Mr Deeks’ case is that if X remains in Sydney and he is able to interact with her sporadically, X will not benefit from her paternal relationship, and this will be contrary to her best interests.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this context, issues germane to the court’s assessment of parental insight and capacity arise and any factors relevant to the child’s specific background and age. Again, it is the import of the father’s case that the mother has a compromised level of insight into the responsibilities of being a parent, one of which is a capacity to support a child’s relationship with the other parent concerned.
Also highly relevant is the additional consideration contained in section 60CC(3)(e) which direct the court to consider any practical issue and expense relating to a child spending time with a parent and how such matters are likely to impact upon the child’s entitlement to maintain direct contact with that parent.
Clearly the logistical issues arising for a child of X’s age, who is not cognitively or verbally mature and whose relationship with her father has been effectively severed by the move to Sydney, are likely to be central to how her interests are to be best served.
In addition, two significant additional criteria [section 60CC(3)(b) & (d)] require the court to consider the nature of the child’s relationship with each parent and the likely effects of any change of circumstances.
These are factors on which Ms Hilding strongly relies given her unchallenged status as X’s primary carer and the significant period of time in which she has been discharging these responsibilities away from Mr Deeks in Sydney.
She would characterise the likely consequence for X of her primary carer being compelled to parent, in an environment in effect dictated to her by the father, which renders her carer unhappy, insecure and far away from what she asserts are her main sources of emotional support as being axiomatically detrimental for X.
Accordingly, it is Ms Hilding’s case that these factors, when coupled with the court’s preeminent responsibility to prioritise protective concerns as militating in favour of X remaining in her care in the location of her preference and the court accepting Ms F’s recommendations for time spending pending further evidence being gathered.
Parental responsibility
Because of the importance the relevant legislation places on both a child’s parents being involved in their child’s life and development. The court is required to apply a presumption [section 61DA] that it is the best interest of each child that his/her parents should be conferred with equal shared parental responsibility for their child.
If the presumption is applied, the court has certain obligations arising from section 65DAA to consider certain mandated time spending arrangements. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)]. It seems inappropriate to apply the presumption in this particular case as this interim stage. Clearly, this decision is capable of reversal at a latter stage of proceedings.
Family violence
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In the current matter, each party seems to have acknowledged to Ms F that X has been exposed to the conflict between them.
In assessing cases involving allegations of family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.[12] In addition, the court is not in a position to defer its obligation to assess the implications of family violence, for any child, because of the limited nature of the evidence available to it.
[12] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J.
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, to more systematic and deliberate behaviour arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
It is the father’s position that both parties behaved inappropriately in the context of a stressful separation. The mother is that she was rendered deeply frightened by the father’s conduct towards her. She does not assert that he assaulted her. SAPOL have not taken any specific action against the father.
Assessment of Risk
In Deiter & Deiter,[13] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it. The court cannot postpone the risk assessment task indefinitely or delay it because the issue arises at an interim stage.
[13] See Deiter & Deiter [2011] FamCAFC 82 at [61].
Essentially, the court must attempt to assess the degree of risk arising from each particular parenting scenario alleged and put in place a response which is proportionate to the risk it so assesses. This may include placing safeguards in respect of a parent’s engagement with a child.
In SS v AH[14] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[14] See SS v AH [2010] FamCAFC 13 at [100].
In Eaby & Speelman[15] the Full Court endorsed this approach as enabling the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored. In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[15] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19].

It is the mother’s case that the level of risk, which Mr Deeks’s conduct to her, as X’s primary carer in conjunction with what she asserts is his compromised parenting by virtue of substance abuse, justified her departure from Adelaide. Essentially, this was a proportionate response to the risk identified in the case.
Relocation
Because of the emphasis which the legislation places on the rights of children to maintain a meaningful level of relationship with each of their parents and have a sense that both parents have a degree of involvement in their lives, parenting case with a relocation aspect are particularly difficult.
On the one hand, one of the purposes of the Family Law Act is to provide former partners, who also happen to be parents, with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances at the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles in the Act, to which I have already alluded, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[16] This need for care stems in a large part from the fact that people who live in this country have an implied right to move within it.
[16] See C & S [1998] FamCA 66.
The High Court has considered this dilemma in a number of cases and has determined that although the child’s best interests are the paramount consideration, they are not the sole consideration for the court. A parent’s aspirations, as to where and how he or she proposes to live in future, are matters which the court is required to take into account. However, these expectations must yield to the child’s ultimate best interests.
In AMS v AIF; AIF v AMS[17] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[17] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043.
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However, the touchstone remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangement are in the best interests of the child concerned.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
I am cognisant, as I am at pains to point out, that I am not determining the case at this stage on any final basis. Rather, my obligation is to put in place a provisional regime pending a more exhaustive inquiry. In determining what is the best such provisional outcome for X, I must consider the various matters contained in section 60CC of the Act, including the risks arising for X of either remaining in Sydney or returning to Adelaide.
Clearly, the court is placed in an invidious position in this regard as each of the outcomes proposed by the parties, in my view, has obvious shortcomings so far as X is concerned. In an ideal world she should, as Ms F puts it, have the opportunity to have a relationship with each of her parents.
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young children. In these circumstances, as I have already observed, relevant authority weighs against the court too easily determining relocation issues on an interim basis, preferring the maintenance of any parental status quo until the court can grapple with the issues arising more thoroughly.
In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[18] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.
[18] Morgan & Miles [2007] FamCA 1230.
The problem with this analysis is that X is now, as confirmed by Ms F, likely to be comfortably settled in Sydney, where she has been since late 2022. It also seems more probable than not that Ms Hilding was X’s primary carer prior to the relocation and certainly must be so currently. Accordingly, in my view, the court is not in a position to overlook her preferences and desires, which are a legitimate consideration for the court.
Mr Deeks, although being critical of many aspects of her care of X, is not able to put forward evidence to suggest that the mother is not able to properly care for her in Sydney. The evidence provided by Ms F is that X is developing within acceptable parameters.
In this context, Mr Deeks does not put himself forward as X’s alternative carer because of any such deficits which he attributes to Ms Hilding. Rather his position is that she should remain X’s primary carer but in the location of his preference rather than that of Ms Hilding.
This is not a case in which Ms Hilding’s removal of X from her former family home can be characterised as recent and so as being axiomatically unstable. Although I concede that I cannot resolve the controversy of whether the Suburb C property is or is not available to Ms Hilding to occupy, it seems to me to be likely that a move back, at this stage, after well over a year away, during which the mother has obtained employment and rented accommodation, must have significant stability implications for X.
In my view, such a significant effluxion of time renders it more rather than less problematic for the court to direct a compulsory return of Ms Hilding to Adelaide in order to discharge her parental obligations for X.
A more difficult aspect of the case, at this interim stage, where ordinarily the court should ensure that any final disposition of such an inherently controversial issue, such as relocation, is determined on a final basis, in circumstances which are not skewed in favour of one parent by that parent’s self-help.
In C & S[19] (to which reference has been made above) Warnick J put this concept as follows:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
[19] C &S [1998] FamCA 66.
Although, as was the case with Ms F, I have some concerns that the degree of risk arising for both Ms Hilding and X justified a move of such significant distance, the fact remains that it now cannot be characterises as being a situation of recent development. The relocation is now, in my view, firmly bedded down and of long standing.
I appreciate that it is Mr Deeks’s case that Ms Hilding, in effect, played him along, during the first part of 2023. That is an issue which I cannot definitively resolve in the context of these proceedings. However, be that as it may, the court’s primary emphasis must be on the service of X’s best interests and not on penalising a parent for some degree of misconduct which may or may not be substantiated at some later stage. The fact remains that X must be regarded as firmly settled in Sydney and given her age, this must be regarded as a comparatively long standing arrangement.
In any event, I accept that there was some level of emergency surrounding the family in late 2022. It seems to be to be self-evident that the parties continued occupation of the Suburb C home was untenable, as it was a source of significant tension between them, leading to Ms Hilding seeking assistance from police, who did not assess the situation as warranting their direct intervention.
Regrettably, it seems to me the parties did not have any facility to resolve the impasse between them in a constructive manner. Mr Deeks was disinclined to vacate the home and leave it to Ms Hilding and X. I accept that she did not feel able to return to the home. In my view, this was a significant emergency from her perspective – she needed somewhere to live.
The emergency coincided with the Christmas break, which in the past she had spent in Sydney with X. It seems apparent that Mr Deeks did nothing material to resolve the emergency until early-2023, when he moved out the former family home, by which time Ms Hilding and X had necessarily become more firmly established outside of Adelaide.
Accordingly, in my view, the conduct of each party must be regarded as having contributed to the state of emergency surrounding care arrangements for X. In these circumstances, it is highly regrettable that it took a significant period of time for the case to come before the court, during which it necessarily became more difficult for Mr Deeks to characterise Ms Hilding’s response to the emergency as being recent in nature.
In purely objective terms, the emergency facing Ms Hilding was not so extreme that her only viable alternative was to move interstate without any obvious plan as to how X would maintain a relationship with her father. It seems to me that prior to October 2022, X must have had a reasonable level of relationship with her father, given that the family shared the same home and, even on Ms Hilding’s case he had some involvement in providing care for her.
The issues, which the case raises of freedom of movement, are extraordinarily complex. In my view, they were most eloquently expounded in the various judgment provided by the High Court in U v U, to which reference has already been made.
Mr Deeks concedes that it would not be in X’s best interests for her primary carer to be changed at this juncture. This appears self-explanatory given her tender years and the prior arrangements for her care, the chief feature of which is that she has not spent time with her father for an extended period of time and has been appropriately parented by her mother. Clearly, it would be emotionally devastating for X for this arrangement to come to end because of Ms Hilding’s relocation to Sydney.
At the same time, whilst promoting this aspect of stability in X’s life, as a corollary of it, he wishes the court to make an order which, in effect, would compel Ms Hilding to give up her job and accommodation in Sydney and put on hold her aspirations in regard to her future plans, at least on a temporary basis, without any similar restrictions being placed on him.
His freedom of movement would be unaffected, whilst Ms Hilding, as the child’s primary carer, would face significant curtailment in this regard. Necessarily, he asserts both aspects of this compulsory order are directed towards the service of X’s best interests. The assumption underlaying his position is that the court in providing a form of de facto election to Ms Hilding – in effect she can choose between living in Sydney or being the primary carer of X – she will choose the latter option, but he himself need not face any such election.
In U v U Gaudron J (who was in dissent) said as follows, in respect of the dilemma created by such a situation, particularly from the perspective of a mother:
… it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.”[20]
[20] See U v U (2002) FLC 93,112 at p 89,082.
As Hayne J put it:
If effect is to be given to those principles, [the principles underlying Pt VII of the Act] it must not be assumed that one parent (the father) cannot move and the 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 the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of his parents, let alone the interests of one of them.[21]
[21] U v U (2002) FLC 93,112 at p 89,103.
In my view, even at this interim or provisional stage, these are issues which the court cannot ignore. Rather, given the effluxion of time which has occurred in the matter and the unassailable fact that Ms Hilding and X have become more and more settled in their lives in Sydney, the issue as to whether Mr Deeks can move to Sydney in order to advance his relationship with X and advance her best interest in the manner advocated by him becomes a more and more pertinent one.
CONCLUSIONS
In my view, this is a difficult and complex case. I accept that was a level of emergency confronting Ms Hilding at the time of her initial move to Sydney. However, there remain significant elements of unilaterality in Ms Hilding’s conduct and no active consideration, on her part as to how X could maintain some form of relationship with her father, as is her legislative entitlement, when her move apparently coalesced into permanence.
In this context, I must be careful not to easily condone actions which, in public policy terms, may have implications for other parents, who are considering moving a child or children far away from another parent. I know from my own experience, as a judge of this court, that relocation cases, particularly unilateral relocation cases, precipitate very powerful and sometimes bitter emotions from the parents concerned. The various outcomes available cannot be twisted to provide an outcome acceptable to all concerned. As such, it is preferable that these issues be decided on a level playing field, before any move takes place.
At the same time, my role in these interim proceedings is not to allocate fault per se. It is to remain focussed on X’s best interests. She is not responsible for the current level of conflict between her parents. However, it is she who is at most risk of suffering harm from the circumstances which have come about. These risks relate to her longer-term development, particularly in terms of her entitlement to maintain parental relations with each of her parents.
In these circumstances, from Mr Deeks’s perspective, the only way that he advocates for X to have the optimal degree of relationship with him is if Ms Hilding is compelled to move back to Adelaide and then tacitly agrees to live uncomplainingly in a location apparently unpalatable to her, at Mr Deeks’s effective direction, without demur from her and without any consideration being given to whether he could move to Sydney to advance his relationship with X for the child’s ultimate benefit.
In effect, the father wishes the court to make an order compelling Ms Hilding to give up her job and accommodation in Sydney and put on hold her aspirations in regard to how she wishes to live in that city so that he can advance his relationship with X. The underpinning of his position being an assumption that Ms Hilding will concede such aspirations and place X’s best interest before those of her own and will, in effect, altruistically place X’s needs before her own without any concomitant personal sacrifice on his part.
He makes no concessions on his part. Rather he points to the unilaterality of Ms Hilding’s actions. In my view, the potency of this position is liable to degrade over time. Necessarily, a radical intervention is liable to become more unpalatable as a consequence of its implications for the child concerned, the longer any period of status quo has been in place.
Given the length of time Ms Hilding and X have been living in Sydney, I do not consider Mr Deeks’s principal proposal, in this case, can be regarded as being tenable in the service of X’s best interests, notwithstanding my concerns about how the child came to be living in Sydney in the first place.
It seems to me to be, on balance, to be improbable that Ms Hilding will be able to seamlessly return to live in Adelaide, find another job and somewhere to live, whilst maintaining her emotional equilibrium and remain focussed on parenting X to the full extent of her capacity. Just as Mr Deeks is bitter at her move, so she would be bitter at being directed where she is to live and discharge her responsibilities to parent X, as her primary carer.
There is no obvious solution. Whatever is the outcome, one of the parties must be rendered bitter and hard done by. The focus remains on X and how her best interests are to be served in this invidious situation. How the court undertakes this task is by an analysis of each party’s proposals (and any other viable outcomes not necessarily advocated by the parties themselves) against the criteria provided by section 60CC of the Act.

I accept X was exposed to family violence in the unhappy situation which prevailed whilst the parties were separated under the one roof of the Suburb C home in late 2022. In all the circumstances, the risk of X being re-exposed to such violence in the future, now the parties separated, does not appear to me to be an unacceptable one, regardless of which state X and her mother live in.
I reach this conclusion on the basis of police involvement; Ms F’s assessment; and a consideration of each party’s affidavit material. In my assessment a permanent move interstate of X is not a proportionate response to the degree of risk arising in the case for X.
In these circumstances, issues to do with X maintaining a meaningful level of relationship with each of her parents becomes a very significant consideration. The adequacy or otherwise of contact arrangements is always central in any case with a relocation aspect. At the present time, given her age, X is not deriving any significant benefits for interacting with her father.
X’s most significant relationship is with her mother, who was her primary carer in her earliest years and has indisputably been so since the mother moved to Sydney. I acknowledge, in this context, that issues relating to Ms Hilding’s emotional equilibrium, must be given some weight in the case.
Although Mr Deeks blames Ms Hilding for the delay and the lack of reactivity in the court system itself, the fact remains that there was a significant hiatus between X’s removal to Sydney and the matter coming to court. No explanation has been provided as to why Mr Deeks was not willing to go to Sydney and why Ms Hilding was not willing to come to Adelaide to facilitate some interaction between father and child. Rather, issues between the parties have hardened into a cold stalemate. This is very sad.
As previously indicated, one of the major considerations in this case must be the effects of any precipitous change on X herself. Regardless of how it came about, Ms Hilding and X are now firmly ensconced in Sydney. No matter how well a transition back is accomplished, it seems more likely than not that it would be a source of instability for all concerned with likely adverse consequences for X herself.
Whichever of the party’s outcomes in the case is preferred, it will create extraordinarily difficult logistical circumstances for each of them, neither of whom has the financial resources to travel interstate easily or often. In purely practical terms, the best outcome, so far as contact arrangements are concerned, is for one parent to move closer to the other. At this juncture, it seems to me that Mr Deeks has the greater facility in this regard. However, that is a matter for him.
As I have indicated, given issues relating to the undisputed identity of the child’s primary carer and the length of time she has been living in the disputed location, render it more difficult for Mr Deeks to seek to achieve an outcome which sees the court exercising any coercive powers, to which it has access, on his part.
I do not consider that I am at liberty to disregard Ms Hilding’s legitimate personal aspiration in this respect, notwithstanding the primacy of X’s best interests. This is particular so given the lack of any equivalent restraint on Mr Deeks’s ambitions, if the orders he seeks are made.
Each party asserts that the other has a compromised attitude to the responsibilities of being a parent. The mother in particular points to the father’s substance abuse in this respect. I am not in a position to resolve these issues in the context of an interim hearing. It seems to me to be more likely than not, as Ms F has it, that both the father and mother love X and have an appropriate level of understanding of her developmental needs.
There is no family violence order in this matter. The involvement of police has been tangential. At this stage, a final hearing seems inevitable. It would be good if this could be expedited. However, many pitfalls stand in the way of such expedition.
Firstly, the parties need to at least attempt some form of mediation in respect of their de facto property issues. In this regard, I will appoint a conciliation conference and make the necessary orders regarding disclosure and valuations. The conference can occur in Adelaide.
Secondly, I agree that there needs to be a gradual and cautious approach taken in regard to re-introducing X to her father given the time which has passed since the two interacted directly with each other and the extreme levels of tension and mistrust between the parties. This mandates the involvement of a professionally supervised CCS.
I am concerned that such a process, regardless of where it is undertaken will be a slow process. However, it needs to be well underway or completed before there is any utility in holding a final hearing. In addition, it will be necessary for a more detailed family report to be commissioned for such a final hearing and it would be preferrable for the relevant expert to be able to observe X after the process of supervised time has been concluded.
Thirdly, an interim hearing such as this one must represent unfinished business. Each party must consider how they each wish to proceed with the litigation in the light of the provisional outcome provided by the court. More specifically, Mr Deeks must consider what he personally will do to advance his relationship with X, particularly in terms of where he elects to base himself. In this regard, I note his lack of familial ties in Australia generally and his ostensibly portable vocational skills.
Balancing all these factors against each other, at this juncture, I have come to the conclusion, that the least bad outcome for X, at this stage, is the one proposed by her mother. On balance, factors relating to her stability and continuity of care are the factors which tip this finely balanced case in Ms Hilding’s favour, notwithstanding the court’s disapprobation of the apparent unilaterality of her actions.
However, the fact remains she has been in New South Wales, with X, for over a year. She has a job and accommodation there. In part the crisis which drove her interstate was Mr Deeks’ intractability in respect of the Suburb C property. Given all this conflict, there can be no ideal outcome for X. In my view, a compulsory return of Ms Hilding to Adelaide will increase rather than diminish the conflict with the prospect of a further destabilisation of X’s care.
In all these circumstances, I do not consider that it would be in X’s best interests to make an order requiring Ms Hilding to live with her in suburban Adelaide as sought by Mr Deeks. As a consequence, the focus of the case turns to what are the appropriate arrangements for X to spend time with her father given her tender years and the fact she has not physically spent time with him for well over a year.
In this context, I accept Ms F’s recommendation that a planned, supervised, reintroduction of time between Mr Deeks and X is appropriate. At this point, there seems to me to be no viable alternative other than a CCS in order to re-introduce X to her father, after such a long break in X’s life.
I acknowledge that the contact arrangements proposed by the mother and Ms F are expensive, complex and convoluted. In addition, any engagement of a CCS must represent a triage response to how a child and parent interact with one another in a high conflict situation, such as the present one. CCS, throughout Australia, are funded by the Australian Government under the auspices of the Attorney-General’s Department.
CCS are not intended to provide supervision of a parent’s relationship with a child for an indefinite period of time in anything other than exceptional circumstances. Their guiding ethos is to provide a safe environment for parents to interact with children until those parents can self-manage their own contact arrangements bearing in mind their and their children’s idiosyncratic needs and circumstances.[22]
[22] See Children’s Contact Services: Guiding Principle Framework for Good Practice published by the Australian Government Attorney-Generals’ Department and Moose & Moose (2008) FLC 93-375 at [119] – [120].
The best outcome for X is axiomatically one in which her parents begin to communicate more effectively and parent more cooperatively. As the Full Court of the Family Court has remarked, the simple fact that a judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests.
Rather:
… what is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[23]
[23] See Zawaii & Rayne [2016] FamCAFC 90.
At this juncture, any prospect of the parties acting cooperatively, in respect of any arrangements for X to interact with her father, in the difficult circumstances of this case, appears to be remote. The most difficult issues arising being the distance between Sydney and Adelaide and the inevitable expense of travelling between the two, which neither party is equipped to bear.
I also appreciate, from Mr Deeks’s perspective, that it may well be onerous for him to have to bear the expense of travel in order to spend very brief periods of widely spaced time with X. However, I have reached the conclusion that some form of professionally supervised time is warranted. It just seems to be that given the lack of any form of cooperative parenting between the parties that any order which does not envisage some formalised structure for time spending and relies on the parties themselves to make arrangements and handover will be destined to fail.
Given the fact that professionally supervised time is not calculated to provide a long-term solution to the issues in this case, particularly in the context of X’s age and the obvious fact that the nature of her relationship with her father has been interrupted for a significant period, any such regime must necessarily be an opened end process. In her report, Ms F recognises this fact. She proposed the following:
[C]onsideration could perhaps be given to [X] spending limited supervised time, for a period of 12 weeks, with her father. If this time is progressing positively and no risk is identified by the supervision service, it could be considered that, on an interim basis, time between [X] and [Mr Deeks] may progress to a full day of unsupervised time between [X] and her father for a further period of six months, progressing to overnight time, once a month.
It is suggested that, on an interim basis, [X]’s time with her father alternate between Sydney every second month, and Adelaide in the intermediary month, and that each parent bear the responsibility for costs around travel in each alternate month.[24]
[24] See Child Impact Report (ibid) at [30] – [31].
I propose to adopt this recommendation and bring the matter back to court after the conciliation conference has occurred and the first tranche of supervised time has occurred, which will include the preparation of some form of observational report. Such an adjournment will also provide Mr Deeks with an opportunity to consider his position in the light of this judgment. In addition, at this stage, it perhaps may be more apparent what is the appropriate location for the final hearing of the case, if such a hearing is still required.
As previously indicated it is the mother’s position that the supervised time should take place on a three-monthly rota, with two visits in Sydney and one visit in Adelaide. I propose to bring the matter back to court in approximately sixteen weeks in the hope there can have been four visits in this period. I hope one can occur in Adelaide and three in Sydney.
Regrettably I am not sanguine that this will occur seamlessly. My experience of CCS is that demand invariably outstrips supply and given the pressure on them, it is difficult for such services to provide flexible arrangements for supervised visits. In this context, I am cautious of the mother’s assertion that there is no current delay with CCS in the area. I hope this is correct.
I am also well aware that the logistical demands of getting the three members of this family together for four proposed visits of minimum two hours across two states whilst dealing with the challenges of domestic air travel are indeed daunting and given the animosity and lack of cooperative spirit between the parties, the prospects of arrangements going awry must be significant. All I can do in this context is grant liberty to apply on short notice so that there is a forum to iron out difficulties.
At this juncture, I do not see any great utility in there being a further hair follicle test given the proposed visits are to be supervised. In addition, whether the father undertakes any course, in my view, is a matter for him and his solicitor. I do not propose to make the injunctive orders sought by the parties. It should be a given that they are not to undermine the other’s relationship with X or quiz her.
I will make the interim live with order that the mother seeks and make an order that the father have video communication with her at the time proposed by the mother but in the event that this is inconvenient for either of the parties or conflicts with Ms Hilding’s church commitments, I will add that it can occur at any other time as agreed between them.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 22 March 2024

File number(s):	ADC 4503 of 2023
Judgment of:	JUDGE BROWN
Date of judgment:	22 March 2024
Catchwords:	FAMILY LAW – Parenting – child aged three years – unilateral relocation – mother has moved child from Adelaide to Sydney – child has been in NSW for a period in excess of twelve months – father seeks compulsory return of mother and child to SA – high conflict – allegations of substance abuse and family violence – emergency facing mother at time of relocation – best interests – stability of care arrangements – logistical considerations relating to spend time with arrangements
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:	AMS v AIF; AIF v AMS (1999) FLC 92-852 B v B (2006) FamCA 1207 C & S [1998] FamCA 66 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Fragomeli & Fragomeli (1993) FLC 92-393 Goode & Goode (2006) FLC 93-286 Marvel & Marvel (No 2) [2010] FamCAFC 101 Mazorski v Albright (2007) 37 FamLR 518 Moose & Moose (2008) FLC 93-375 Morgan & Miles [2007] FamCA 1230 SS v AH [2010] FamCAFC 13 U v U (2002) FLC 93,112 Zawaii & Rayne [2016] FamCAFC 90
Division:	Division 2 Family Law
Number of paragraphs:	207
Date of hearing:	12 March 2024
Place:	Adelaide
Counsel for the Applicant:	Ms Hume
Solicitor for the Applicant:	Moloney and Partners
Counsel for the Respondent:	Ms Van Oosterom
Solicitor for the Respondent:	Orbell Family Lawyers Pty Ltd

ADC 4503 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DEEKS Applicant
AND:	MS HILDING Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	22 MARCH 2024