Edmondson & Samford - [2023] FedCFamC2F 171

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Edmondson & Samford [2023] FedCFamC2F 171

File number(s): CAC 976 of 2019

Judgment of: JUDGE W J NEVILLE

Date of judgment: 22 February 2023

Catchwords: FAMILY LAW – Parenting – relocation – where the Mother seeks to relocate with the children to City B, NSW from Town C, NSW – where the Father lives in Town D, VIC and opposes the relocation – Mother consents to delaying relocation for some time to allow the Father to re-establish his relationship with the children – Father has not had contact with the children due to criminal proceedings in which one of the children was required to give evidence – Father found guilty of various offences against the Mother – Certificate pursuant to section 128 of the Evidence Act 1995 (Cth) - Mother re-partnered but does not propose to live with her new partner – Mother seeks to relocate to a larger town with more opportunities - Mother seeking Father spend time with the children during holidays only regardless of whether the relocation is granted – clear views expressed by the children against relocation – consideration of best interests of children – relocation granted in 12 months’ time once the children have re-established their relationship with their Father – Mother to have sole parental responsibilities – children to spend time with Father in school holidays.

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) ss 60CC, 61DA, 69ZX(3)(b), s102NA

Cases cited:
AMS v AIF (1999) 199 CLR 160

B & B [2006] FamCA 1207

Blanding v Blanding (2017) 55 Fam LR 218

Cales & Cales (2010) 44 Fam LR 376

Collu & Rinaldo [2010] FamCAFC 53

F v F (2008) 38 Fam LR 52

Fox v Percy (2003) 214 CLR 118

Franklyn & Franklyn [2019] FamCAFC 256

Franklyn & Franklyn (2021) FLC 94-031

Godfrey v Sanders (2007) 208 FLR 287

Hendy & Penningh (2018) FLC 93-879

Hepburn & Noble (2010) FLC ¶93-348

M v S (2008) 37 Fam LR 32

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC ¶93-375

Payne v Payne [2001] Fam 473

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

Sigley v Evor (2011) 44 Fam LR 439

Starr & Duggan [2009] FamCAFC 115

Taylor & Barker (2007) 37 Fam LR 461

U v U (2002) 211 CLR 238

Vontek v Vontek [2017] FamCAFC 28

Wiley & Wiley [2008] FamCAFC 153

Division: Division 2 Family Law

Number of paragraphs: 173

Date of last submission/s: 1 November 2022

Date of hearing: 1- 2 August 2022 & 15 September 2022

Place: Canberra

Counsel for the Applicant Dr J Behrens

Solicitor for the Applicant Neilan Stramandinoli Family Law

Counsel for the Respondent Ms M Davis under s120NA for the purposes of cross-examination of the Mother only

Solicitor for the Respondent Self-represented with Gabbedy Milson Lee under s120NA for the purposes of cross-examination of the Mother only

Solicitor as the Independent Children’s Lawyer Barker & Barker
ORDERS

CAC 976 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS EDMONDSON
Applicant

AND:
MR SAMFORD
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

22 february 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:
Parental Responsibility
1.The Mother have sole parental responsibility for the children, namely,
(a)W, born in 2009,
(b)X, born in 2012,
(c)Y, born in 2014, and
(d)Z, born in 2014

2.Before any major long-term decision is made by the Mother pursuant to Order 1, she is to provide to the Father in writing a short note (e.g. via a parenting app) of notification and any basic information considered by the Mother as directly relevant to the proposed decision. The Father may comment within 7 days after receiving the notification. If there is no response from the Father within that specific time the Mother may make such decision as she thinks is in the best interests of the children without further notice. If the Father comments in relation to the proposed decision, the Mother should reasonably take it into account before making the ultimate decision.

Relocation
3.The Mother be permitted to relocate with the children to City B, New South Wales immediately after the expiration of 12 months from the date of these Orders.

Live With/Spend Time With
4.The children live with the Mother.
5.Subject to the children’s time with the Father progressing well noting that he is currently spending time with them on a supervised basis including that the supervised contact service provides reports that do not raise any concerns about the children in the Father’s care, and unless otherwise agreed between the parents in writing, the children spend time with the Father as follows:
(a)During the school holiday periods as follows:
(i)with the Mother in the first half of the school holidays in 2022 and each alternate year thereafter, and the second half of the school holidays in 2023 and each alternate year thereafter, and
(ii)with the Father in the second half of the school holidays in 2022 and each alternate year thereafter and the first half of the school holidays in 2023 and each alternate year thereafter.

(b)In the event that the Father travels to City B, NSW where the children are residing, provided that the Father notifies the mother at least one week prior, the children spend time with the Father, unless otherwise agreed between the parents in writing as follows:
(i)if it is a school day, from 4pm the day the father arrives in City B, NSW until 5pm the following day, and
(ii)if it is a non-school day, from 9am the day the father arrives in City B, NSW until 5pm the following day.

(c)For the purposes of Order 3(a) above:
(i)the school holidays shall be the school holidays as determined by the NSW government in each year;
(ii)the school holidays shall be deemed to commence at 3pm on the last day of the school term;
(iii)the middle of the school holidays shall be deemed to be 12pm on the Saturday that falls in the middle of the school holiday period, and
(iv)the end of the school holidays shall be deemed to be 9am on the Monday before the new school term begins.

Special Occasions
6.Notwithstanding these Orders and unless otherwise agreed between the parents in writing, the children spend time with each parent during special occasions as follows:
(a)On each of the children’s birthdays, the children will communicate with the parent whom they are not living with at the time from 6pm until 6:30pm on their birthday.
(b)On the parent’s birthdays, if the children are not living with the parent who is having the birthday, the children communicate with the parent having the birthday from 6pm until 6:30pm on their birthday.
(c)With the Mother from 3pm or afterschool on the Friday immediately before Mother’s Day until 5pm on Mother’s Day and with the Father from 3pm or afterschool on the Friday immediately before Father’s Day until 5pm on Father’s Day.

Changeover
7.In the event that time is occurring in Town D, VIC, changeovers occur out the front of Town C Primary School in Town C, and if the time occurs in City B, NSW changeover occur at the children’s school in City B or such other public neutral location as agreed between the parents in writing.

Communication
8.The children communicate with the Father as follows:
(a)from 6.00pm until 6.30pm every Sunday;
(b)to be facilitated by the Father telephoning the mother, and
(c)the calls shall be on loudspeaker with the Mother at liberty to terminate any telephone call if the father speaks to the children in relation to these Court proceedings, the criminal proceedings with respect to the surveillance device, the children’s future living arrangements, if he denigrates the mother or members of the Mother’s family or if the children wish to end the call.

9.That the parties communicate with one another via email or text message in relation to the care, welfare and development of the children.
10.Notwithstanding Order 1 above, the Mother will, except in the case of a medical emergency:
(a)notify the Father by email with as much notice as is reasonably practicable of any major long-term decision which she is proposing to make for the children or any of them (“the proposed decision”) and the reasons for the proposed decision;
(b)will give the Father the opportunity to express views by email about the proposed decision;
(c)will take into account the Father’s views, and
(d)will notify the Father by email of the decision which she has made.

11.The Mother will immediately notify the Father by email or text message in the event of any medical emergency involving the children or either of them, any medical diagnosis and associated treatment.

Restraints
12.The Father is restrained by injunction from making a child concern report to the NSW Department of Communities and Justice or equivalent body, or from directing or asking any other person to do so.
13.The parents ~~are~~ be and are hereby restrained from saying denigratory things about the other or the family of the other to or in the hearing of the children and from allowing any other person to do so.
14.Each party is restrained from drinking to excess while they are responsible for the care of the children (excess being over the legal driving limit).

Counselling
15.The Mother continue to engage in counselling for at least 12 months and provide a copy of Ms E’s Reports to any counsellor she engages with.

Other
16.Within 3 months of the date of these Orders, both parents enrol in a parenting course which covers communication and emotional regulation.
17.The Mother provide any gifts or communications from the ~~maternal~~ paternal Grandmother to the children.
18.The Court issues a certificate in favour of Mr Samford pursuant to s128 of the Evidence Act 1995 (Cth) with respect to the findings against him in the Magistrates Court arising from SAMFORD 2021….

AND IT IS NOTED THAT these Orders have been amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Edmondson & Samford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

This parenting matter concerns Orders to be made, pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”), in the best interests of 8 year old twins Z and Y, 10 year old X, and 13 year old W. The children have always lived primarily with their Mother. They continue to do so at Town C on the Region F of New South Wales. Their Father lives in country Victoria. In recent years, he has spent quite limited time with the children.
The distance between the residences of the parents, noting also that the Father has only been spending supervised time with the children recently, is a drive of approximately 2 hours.
The Mother seeks to relocate to City B, which would result in an almost 9 hour drive between the Father’s current residence in Town D, Victoria and the Mother’s proposed residence in City B. She confirmed during the trial that she would be prepared to delay any such move for perhaps 12 months or so in order for the children’s relationship with the Father, hopefully, to improve.
The tensions and contest between the parents, now over many years, is very intense. It was palpable during the trial. It was made worse in a significant number of respects by the Father recently prevailing upon W to secret a listening device in the Mother’s home. Although he still protests the circumstances and intentions, the Father was convicted of various offences in the Magistrate’s Court arising from his actions involving W. To state what should be obvious, but concerningly is still not fully acknowledged by the Father, to have involved W in such conduct showed an alarming lack of insight. More troublingly still, the issue of the self-represented Father’s “lack of insight” was a feature commented on in nearly all of the modest phalanx of reports (6 of them) that became exhibits in these proceedings – canvassed below.
At the outset of the Hearing, three findings from the Father’s criminal proceedings in the Magistrates Court were adopted pursuant to section 69ZX(3)(b) of the Family Law Act1975 (Cth) (“the Act”). These were as follows:[1]
(a)W did not lie in the criminal proceedings;
(b)The accused’s sister Ms G and the accused [the Father] engaged in a joint enterprise to coerce the child to record the Mother;
(c)W did not take the camera in his pencil case without the knowledge of the accused and his auntie Ms G.
[1] See Transcript (“T”) 13.
As an observation only at this stage, the determination of the children’s best interests could almost be done on the basis of (a) the multiple reports now formally before the Court, and (b) the submissions of the parties. The respective “narratives” of the parties has really not changed in relation to their relationship, pre- and post-separation, and the relationship of the children with both parents.
The matter was further complicated, needlessly so, because the Father (who otherwise did reasonably well during the trial as a self-represented litigant) (a) continued to seek Orders that could never be made, such as the children living primarily with him (when this had never occurred in the lives of the children, and such Orders were never recommended by any of the four experts who gave evidence), and (b) had (and continues to have) a seriously jaundiced prism through which he saw the litigation as an aggrieved Father who railed against the family law system, which was invariably biased (in his view) towards “Mothers” and hostile towards “Fathers.”
Because a Family Violence Order applied to both parties, a s.102NA Order was made on 22^nd March 2022. The Father intended to remain self-represented, but was assisted by Counsel only in cross-examination of the Mother.
For the reasons that follow, the Orders proposed by the Mother and ICL should be made. In my view, they are in the children’s best interests. They include the Mother being permitted to relocate to City B, but only after the expiration of 12 months from the date of these Orders.
Applicant Mother’s Orders Sought
The Applicant Mother’s Orders sought were set out in the Amended Application for Final Orders filed 12^th April 2022; they were as follows (emphasis in original; other highlighting removed):
Parental Responsibility
1.        That the mother have sole parental responsibility for the children, namely,
a)        [W], born [in] 2009,
b)        [X], born [in] 2012,
c)        [Y], born [in] 2014, and
d)        [Z], born [in] 2014
Relocation
2.That the mother be permitted to relocate with the children to [City B], New South Wales.
Live With/Spend Time With
3.        That the children live with the mother.
4.That subject to the children’s time with the father progressing well noting that he is currently spending time with them on a supervised basis including that the supervised contact service provides reports that do not raise any concerns about the children in the father’s care, and unless otherwise agreed between the parents in writing, the children spend time with the father as follows:
a)        During the school holiday periods as follows:
i.with the mother in the first half of the school holidays in 2022 and each alternate year thereafter, and the second half of the school holidays in 2023 and each alternate year thereafter, and
ii.with the father in the second half of the school holidays in 2022 and each alternate year thereafter and the first half of the school holidays in 2023 and each alternate year thereafter.
b)In the event that the father travels to [City B], NSW where the children are residing, provided that the father notifies the mother at least one week prior, the children spend time with the father, unless otherwise agreed between the parents in writing as follows:
i.if it is a school day, from 4pm the day the father arrives in [City B], NSW until 5pm the following day, and
ii.if it is a non-school day, from 9am the day the father arrives in [City B], NSW until 5pm the following day.
c)        For the purposes of Order 3(a) above:
i.the school holidays shall be the school holidays as determined by the NSW government in each year;
ii.the school holidays shall be deemed to commence at 3pm on the last day of the school term;
iii.the middle of the school holidays shall be deemed to be 12pm on the Saturday that falls in the middle of the school holiday period, and
iv.the end of the school holidays shall be deemed to be 9am on the Monday before the new school term begins.
Special Occasions
5.Notwithstanding these orders and unless otherwise agreed between the parents in writing, the children spend time with each parent during special occasions as follows:
a)On each of the children’s birthdays, the children will communicate with the parent whom they are not living with at the time from 6pm until 6:30pm on their birthday.
b)On the parent’s birthdays, if the children are not living with the parent who is having the birthday, the children communicate with the parent having the birthday from 6pm until 6:30pm on their birthday.
c)With the mother from 3pm or afterschool on the Friday immediately before Mother’s Day until 5pm on Mother’s Day and with the father from 3pm or afterschool on the Friday immediately before Father’s Day until 5pm on Father’s Day.
Changeover
6. In the event that time is occurring in [Town D], Vic, changeovers occur out the front of [Town C] Primary School in [Town C], and if the time occurs in [City B], NSW changeover occur at the children’s school in [City B] or such other public neutral location as agreed between the parents in writing.
Communication
7.        That the children communicate with the father as follows:
a)from 6.00pm until 6.30pm every Sunday;
b)to be facilitated by the father telephoning the mother, and
c)the calls shall be on loudspeaker with the mother at liberty to terminate any telephone call if the father speaks to the children in relation to these Court proceedings, the criminal proceedings with respect to the surveillance device, the children’s future living arrangements, if he denigrates the mother or members of the mother’s family or if the children wish to end the call.
8.That the parties communicate with one another via email or text message in relation to the care, welfare and development of the children.
9.Notwithstanding Order 1 above, the mother will, except in the case of a medical emergency:
a) notify the father by email with as much notice as is reasonably practicable of any major long-term decision which she is proposing to make for the children or any of them (“the proposed decision”) and the reasons for the proposed decision;
b)will give the father the opportunity to express views by email about the proposed decision;
c)will take into account the father’s views, and
d)will notify the father by email of the decision which she has made.
10. The mother will immediately notify the father by email or text message in the event of any medical emergency involving the children or either of them, any medical diagnosis and associated treatment.
Restraints
11.The Father is restrained by injunction from making a child concern report to the NSW Department of Communities and Justice or equivalent body, or from directing or asking any other person to do so.
12.That the parents are be and are hereby restrained from saying denigratory things about the other or the family of the other to or in the hearing of the children and from allowing any other person to do so.
Procedural Orders
13. That the mother have leave to particularise the final orders she seeks in relation to the time the children spend with the father following the release of the updated Family Report.
~~That [W], born~~ [in] ~~2009, [X], born~~ [in] ~~2012, [Y], born~~ [in] ~~2014, and [Z], born~~ [in] ~~2014, live with the Mother.~~
~~That the Applicant have leave to further particularise Final Orders.~~
Respondent Father’s Orders Sought

The Respondent Father’s Orders sought were contained in the Case Outline filed 25^th July 2022; they were as follows (emphasis in original). Among other things, it will be immediately apparent that the Father seeks to change the primary residence of the children, albeit inaptly described as a “relocation”:
1.        All previous orders be discharged.
2.The appointed Independent Children’s Lawyer remain in place and carry out a 3, 6 & 12 month review.
Parental Responsibility:
3.        The father have sole parental responsibility for the children, namely:
a.         [W] born [in] 2009,
b.        [X] born [in] 2012,
c.         [Y] born [in] 2014 and
d.        [Z] born [in] 2014.
Relocation:
4.        That the father be permitted to relocate the children to [Town D], Victoria.
Live With /Spend Time With:
5.        The children live with the father.
6.        The children spend time with the mother as follows:
a. every alternative weekend from after-school (or 3:30 PM if non-school day) until 4 PM on Sunday);
Changeover:
7. The father every alternative weekend drive the children to [Town C] after school ( or 3.30 pm if non- school day) on Friday’s with changeover to be at the maternal Grandmothers house. The mother to return the children to [Town D] on Sunday at 4pm at the father’s and children’s residence in [Town D].
During the school holiday periods as follows:
8. The father be permitted to telephone the children once every three days that they are out of his care.
a. with the mother in the first half of the school holidays in 2022 and each alternate year thereafter, and the second half of the school holidays in 2023 and each alternate year thereafter, and
b. With the father in the second half of the school holidays in 2022 and each alternate year thereafter and the first half of the school holidays in 2023 and each alternate year thereafter.
9.        For the purposes of Order 8(a & b) above:
i. the school holidays shall be the school holidays as determined by the VIC government in each year;
ii. the school holidays shall be deemed to commence at 3pm on the last day of the school term;
iii. the middle of the school holidays shall be deemed to be 12 noon on the Saturday that falls in the middle of the school holiday period, and
iv. the end of the school holidays shall be deemed to be 12 noon on the Sunday before the new school term begins.
Special Occasions:
10. Notwithstanding these orders and unless otherwise agreed between the parents in writing, the children spend time with each parent during special occasions as follows:
a) On each of the children’s birthdays, the children will communicate with the parent whom they are not living/staying with at the time from 6pm until 6:30pm on their birthday.
b) On the parent’s birthdays, if the children are not living/staying with the parent who is having the birthday, the children communicate with the parent having the birthday from 6pm until 6:30pm on their birthday.
c) With the father from 3pm or afterschool on the Friday immediately before Father’s Day until 5pm on Father’s Day and with the mother to pick up at the children at school on the Friday immediately before Mother’s Day until 5pm on Mother’s Day.
Christmas Holidays:
11.      On Christmas Day whoever the children are not with at that time then that parent can call the children via phone at 6pm to 6.30 pm.
a. in 2022 and each alternative year thereafter the children to spend time with the mother from 12 noon the first day of Christmas school holidays with the father to drive the children to [Town C] that day with changeover to be at the maternal grandmothers house. The children to be return to [Town D] by the mother in 21 days by 4 PM with changeover to be at the father and children’s residence in [Town D].
b. in 2023 and each alternative year thereafter the father to drive the children to [Town C] with changeover to be at the maternal grandmothers house after the first 21 days being with the father from the start of the Christmas school holidays with the children then to be return to [Town D] by the mother 3 days before school is to resume by 4 PM with changeover to be at the father and children’s residence in [Town D].
Communication:
12.      That the children communicate with the mother as follows:
a)        from 6.00pm until 6.30pm every Sunday;
b)        to be facilitated by the mother telephoning the father, and
13. That the parties communicate with one another via email in relation to the care, welfare, and development of the children.
a) notify the mother by email with as much notice as is reasonably practicable of any major long-term decision which he is proposing to make for the children or any of them (“the proposed decision”) and the reasons for the proposed decision;
b) will give the mother the opportunity to express views by email about the proposed decision;
c) will take into account the mother’s views, and
d) will notify the mother by email of the decision which he has made.
14. The father will immediately notify the mother by email or text message in the event of any medical emergency involving the children or either of them, any medical diagnosis and associated treatment.
Other Considerations:
15. Each parent is at liberty to attend any activities or events at which parents are ordinarily welcome.
16. Each parent is at liberty to attend any extracurricular events of the children’s at which parents are ordinarily welcome.
17. Each parent is at liberty to contact the children’s school to request any information ordinarily provided to parents.
18. Each parent is at liberty to contact any of the children’s treating medical or allied health professionals   to request any information ordinarily provided to parents.
19. The parents shall keep each other updated of current email addresses, telephone numbers and residential addresses at all times and at least within 24 hours of such details changing.
20. The father shall keep the mother updated in relation to contact details of any medical or allied health professionals upon whom the children are attending.
21. The parents shall each comply at all times with current state government directions in relation to COVID-19 and in any other significant events that state government directions differ between New South Wales and Victoria the parties shall make their best efforts to arrive at a practical solution that minimises the children’s exposure to COVID-19 whilst complying with these orders. In the event that minimising the children’s exposure to COVID-19 effects compliance with these orders then the parties shall facilitate generous face time for that period.
Each party is restrained by injunction from;
22.denigrating the other party, any partner of the other party or any member of the other party’s   family to, or in the presence or hearing of the children;
23.drinking to excess while they are responsible for the care of the children (excess being over .05);
24.consuming any illicit drugs being affected thereby during or within 24 hours of spending time with the children;
25.discussing family law proceedings or family law orders with the children and from allowing the children to read any documents produced for the purposes of these family law proceedings.
26.      Any such other orders as this honourable court deems appropriate
Independent Children’s Lawyer’s Orders Sought
The Independent Children’s Lawyer did not provide a formal set of Orders sought, but noted generally the Orders proposed as outlined in the submissions below.
The Mother’s Evidence
It should be noted at the outset that, in my view, the Mother was an extremely candid witness; she frequently made admissions or concessions against her own interest. Quite a number of her admissions showed insight into her plight at various times in her relationship with the Father and subsequently. I did not find the Father to show the same or similar degrees of candour or insight. Such concessions as he made were modest, albeit that he did concede, properly so, that some of his language directed towards the Mother, was horrific.[2] Summarised, the Mother’s evidence was as follows.
[2] See, for example, T 209 & 210.
The Mother briefly outlined a few things in her evidence in chief. She confirmed that having read Ms H’s report, her position was now that in the event her relocation was not granted and she was required to remain in Town C, she agreed with Ms H’s recommendation that the children should only spend time with their Father during school holidays.[3]
[3] T 26.
The Mother provided further details in relation to Z and Y’s speech therapy and the exercises they were completing at home. Additionally, she referred to, which was ultimately tendered, a note prepared by her in a counselling session with the Father in 2016 which had been omitted from her trial Affidavit.[4]
[4] T 27 – 28.
At the outset of her questioning by the Father’s Counsel, the Mother confirmed the parties had multiple separations during their relationship.[5]
[5] T 30.
In a series of questions about the Mother relocating without the Father’s consent, the Mother confirmed that she had the Father’s consent to move to the town of Town C on the NSW Region J from City K, with their then only two children, when they separated in 2014.[6] The Mother confirmed that when the parties separated for a second time around the end of 2016 or early 2017, the Mother moved away from Brisbane back to Town C with the children.[7] The Father’s Counsel put to the Mother that when the parties first commenced their relationship, the Father was going to go to Brisbane for work but the Mother did not want to be so far from her family so he secured a job in City L. The Mother denied that the decision to move to City L was so she could be closer to her family.[8] However, the Mother agreed that when the Father secured a job in Canberra, the parties lived in Town M so that they could be closer to the Mother’s family.[9]
[6] T 30.
[7] T 31.
[8] T 33 – 34.
[9] T 34.
The Mother denied that the maternal Grandmother sees the children every day, at the moment, but confirmed that she had previously lived with the maternal Grandmother for two separate periods, one for 6 weeks, and the other for 11 months. There was a period, when the Grandmother was working at the school where she saw the children every day.[10] The Mother confirmed more generally that the children also see the maternal Grandfather often. She accepted that the children would not see her parents as often if they relocated to City B.[11]
[10] T 35 – 36.
[11] T 34 – 36.
The Mother said that the parties had had a plan to be settled in one place by the time the children commenced high school. She noted that W had already commenced high school but commented that City B, in her view, offered many more opportunities for the children because of it being a much larger town/city than Town C.[12]
[12] T 37 – 38.
The Mother accepted she had some time ago when the parties were still together expressed a desire for the Father to take the children off her hands when she was at home with them and the Father was at work, but denied she had ever called them names.[13]
[13] T 37.
Counsel for the Father then asked the Mother questions about counselling the parties attended in 2016 and the associated documents included in the Mother’s Affidavit. It was put to the Mother that she did not include the entirety of the Father’s response to a specific exercise. The Mother stated that she thought she had included all of the pages, but conceded she may have forgotten some of them.[14]
[14] T 38 – 40.
The Mother said that when the parties were in a relationship, she did not see the Father as physically abusive (although there were, she said, times when the Father “manhandled” her and was generally aggressive towards her), but she now realises with the benefit of counselling that he was abusive towards her during the relationship.[15]
[15] T 40.
The Mother acknowledged that she used the drug “ice” before she met the Father and used it every 6 to 8 months. She agreed that she told the Court Child Expert, Ms H, that she used ice every 3 to 4 months when she was in a relationship with the Father. The Mother confirmed that the reason she used ice was because of a particular aspect of her sexual relationship with the Father.[16] Somehow, which remained unexamined, she said that she could only engage in the sexual conduct the Father required or demanded of her with the assistance of this drug.[17]
[16] T 40 – 41.
[17] Among other places, see also the earlier, related remarks recorded in Ms O’s Child Inclusive Memo, dated 3^rd July 2019 at pars.14 – 34. This Memo became Exhibit D.
The Mother confirmed that in April 2019, when the Father went to stay with his sister, she sent him approximately 1400 messages. However, the Mother denied that those messages implied she was taking ice to use at a friend’s house in Town N. The Mother asserted there were phone calls between the texts that changed their context and that while the Father may have been focussing on drug use in the texts, her responses were in relation to mental health. The Mother asserted that the Father told her she needed to use the word ice in the texts. The Mother stated that the Father was setting her up to appear as a bad person, as “the bad guy.” The Mother confirmed she stopped using ice when the Father left and that she attributes the ice use to the sexual relationship of the parties.[18] She also confirmed that the “help” she was seeking at the time was not related to drug use (“ice” in particular) but in relation to her poor mental health.
[18] T 42 – 49.
The Mother stated that she did not believe she had a problem with ice use, because she was able to stop using the drug at any time. She said that she still did not believe that it (the use of “ice”) was a problem, but instead a manner of coping with a particular situation.[19] The Mother denied she had ever sought assistance in relation to any drug addiction. She said she thought the Father was enrolling her in a mental health plan, but he instead he enrolled her into a drug and alcohol rehabilitation plan.[20] The Mother conceded at the time she requested the Father return from his sister’s and care for the children for two weeks while the Mother was in the rehabilitation centre and said that, at that time, she did not have concerns about the children being in his care. The Mother denied the trigger for her concern was when the Father took the children away in May 2019.[21]
[19] T 49.
[20] T 45.
[21] T 46.
The Mother confirmed that on 24^th April 2019 she was in a state of significant distress while the children were in her care. The Mother stated she was made to feel that she should not be around the children and that they should live with the Father because she was unable to perform tasks as sought by the Father such as cleaning the house properly.[22] Such thoughts were part of the Father’s manipulation of the Mother, how, she said, the Father made her feel.
[22] T 47.
In response to a question about whether the Mother will use ice again if she is stressed or not coping, she responded firmly stating that she has gone to counselling and now has coping strategies available to her.[23] More particularly, the Mother said (more than once) that (a) she has not used “ice” since she parted from the Father, and (b) she used it during the relationship as a means of coping with the relationship with the Father.[24]
[23] T 49 – 50.
[24] T 49.
More particularly, the Mother said:[25]
… I say again, the way you talk about your drug use in your affidavit implies that your use of ice was [Mr Samford]’s fault?‑‑‑No. That’s incorrect. You don’t know the context.
HIS HONOUR: So what is the context that you say, “in order to please [Mr Samford]”?‑‑‑The only time that I could please [Mr Samford] is to do a certain sexual act on him. For me to be able to do that, I used to have to be high.
Thank you?‑‑‑And that’s the context.
[25] T 50.
The Mother denied that she was in any way addicted to “ice”, notwithstanding its addictive qualities.[26]
[26] See the general discussion at T 50 – 51.
The Mother was then questioned about her use of physical discipline. The Mother confirmed that she previously used physical discipline on the children but that she no longer did so. In response to allegations that the Mother still uses physical discipline, the Mother stated she did not and the children would not be telling the truth if they stated she did.[27] In the Mother’s brief re-examination, she later corrected her evidence on this point, saying that two weeks before the trial she had smacked Z.[28]
[27] T 53.
[28] T 105.
As with a number of other matters, the Mother said that in relation to the discipline and care of the children generally:[29]
What was the harm you had in mind at that time?‑‑‑Well, the harm I was doing towards them by yelling and not being the proper mum that I needed to be because I just wasn’t there mentally at that time.
[29] T 53.
The Mother confirmed that when she filed proceedings on 28^th May 2019 following the Father removing the children, she sent a message to the Father to the effect that she just wanted to see the children. The Mother denied that this meant the Father thought [or reasonably understood] there was an agreement the children would live with him.[30]
[30] T 55.
In response to a few clarifying questions from the Bench, the Mother stated that she still fears how the Father will behave if he does not get what he wants. The Mother confirmed that, to a small degree, she thought the Father might kill the children and himself. The Mother also denied the Father’s allegation that the eldest child was conceived when the Mother raped the Father.[31] As an observation only, the Father is a quite imposing person, including in personality. Such a claim by the Father, which was made more than once (including to the Family Report writer, Ms O, in the CIC Memo, dated 3^rd July 2019, par.24), to put it somewhat colloquially, was surprising if not remarkable. As an observation only, it is difficult to imagine too many people “over-powering” the Father, including the Mother. As noted below, the Mother denied this contention categorically.
[31] T 57 – 58.
The Mother regularly said that (using my words) the Father manipulated her and the situation she found herself in at the time. For example, against a background of the Mother confirming that on one occasion, she sent the Father some 1400 SMS messages over the space of approximately one week. In explanation or comment, she said (emphasis added):[32]
So at the time that you separated within about a week of these messages, you weren’t thinking, “He’s probably got the kids because we’ve separated and I’m not the best parent right now.”?‑‑‑No. That is not – that’s incorrect.
So when you say things like, “If you’re what’s best for the kids then so be it.”, he wasn’t to interpret that as you saying, “If we separate, the kids should be with you.”?‑‑‑No. Those messages – if you read like that, yes. But you don’t – still – like I said, you understand the context and what he was doing behind all those messages.
HIS HONOUR: So, again, what do you say ‑ ‑ ‑?‑‑‑As in ‑ ‑ ‑
‑ ‑ ‑ the father was doing ‑ ‑ ‑?‑‑‑He ‑ ‑ ‑
‑ ‑ ‑ in all those messages?‑‑‑He never, ever stated anything about the phone calls that was made in between ..... the baiting, the making me write certain things, making me think certain things, telling me and promising me that if I was a better person that he would come back – a whole multitude of context of things – said if I begged him and said those horrible, horrible things, that he would come back and we would be a family again. Sorry.
Can I ask ..... in relation to any of those telephone calls, did you ever make any notes like in a diary or anywhere?‑‑‑No. I did not because I wasn’t in a good state of mind at that time.
[32] T 54.

The Mother confirmed that she had never raised this “manipulation” in prior material, even though the Father had raised the 1400 SMS messages previously. She simply repeated that she was “in a difficult position and I said all sorts of things I didn’t mean.”[33]
[33] T 55.
The Mother confirmed she is, and remains, fearful the Father will continue to denigrate her; she denied that she denigrates him. The context of this brief discussion and the Mother’s words are important:[34]
[34] T 57 & 58.
HIS HONOUR: And just before again I hand over to Ms Davis, if I could just ask two questions.
[Ms Edmondson] – and again they’re both difficult questions I’m sorry, but still. In a couple of family reports you refer to being concerned are the words used about how the father will react if he does not get what he wants and that you raise, amongst other things, a risk to the children?‑‑‑Correct.
Do you still hold those fears?‑‑‑I do more than ever, yes.
More than ever?‑‑‑More than ever now.
And in one of the earlier reports – and I can dig it out to get the reference – you actually refer to a concern of not just doing them harm, but killing them ‑ ‑ ‑?‑‑‑Correct.
‑ ‑ ‑ and himself?‑‑‑Correct.
Do you still hold those .....?‑‑‑To a small degree, yes.
To a small degree. Thank you. And then the other one different area, but still very delicate, of course, the father says that the eldest child of you both was conceived when you raped him. You have read that?‑‑‑I have read that, your Honour.
Can I ask what your response is to that?‑‑‑That’s an absolute disgusting thing to say.
So you deny it categorically?‑‑‑100 per cent I deny it.
It was put to the Mother that in front of the children she said to the Father (words to the effect – unless specifically quoted) that (a) they would starve if he leaves, (b) he was leaving them and (c) effectively, their Father had rejected them. The Mother clarified that she instead said that “Daddy is leaving us” and denied that this was not to tell the children their Father was rejecting them but that it was a statement of fact.[35]
[35] T 59.
Subject to further comments below, there were a number of instances where the Mother was asked questions about phone recordings made by the Father of conversations with the Mother. Consistently, the Mother’s response was to the effect that not all telephone calls were recorded and transcribed by the Father. Therefore, there was not a complete picture of what was happening between them and/or what was said in total. The Mother also said that while she suspected that her telephone calls with the Father were being recorded, she was not always certain that this was occurring. She confirmed that Zoom chats with the children were also being recorded.[36] She confirmed further that she did not raise the issue of “recording” of phone calls in her earlier Affidavits.
[36] See, for example, the extended discussion at T 59 – 62.
The Mother said that the Father puts pressure on the children during phone calls, including suggesting that the children will shortly be living with him and that their house (with their Mother) would fall around them while they were sleeping. The Mother confirmed that the transcripts the Father had made of some calls were accurate, but that there were other calls where no transcript was provided. Implicitly, had the other calls been recorded they would have shown a different context and meaning to them.[37]
[37] T 59 – 61.
The Mother confirmed that she has been “educating” or correcting the children about some things the Father had told them which were not true. For example, she confirmed that she believed the Father told the children that the Mother is an alcoholic, so she showed them a documentary about alcoholism. The Mother denied that this was done to tell the children that the Father was not telling the truth.[38]
[38] T 63 – 64.
The Mother confirmed that her most recent drug test, covering the period of three to six months ago, was negative for all drugs, but showed a positive result for alcohol in the amount of 185 pg per mg. It was put to the Mother that anything above 30 pg by mg is categorised as excessive consumption of alcohol. The Mother agreed that this was six times what is required to be considered as excessive; she also confirmed that, at no time has she said to the Court that she drinks alcohol to excess. The Mother acknowledged the results were inconsistent with the evidence she had provided to the Court. More than once, the Mother stated that despite these results, she did not think there was ever a time between May 2019 and July 2022 in which her use of alcohol had been excessive.[39]
[39] T 64 – 66.
Counsel next put to the Mother a series of questions about her general capacity to comply with Orders and completing paperwork in relation to the children, such as school enrolment. It was put to the Mother that Orders from May 2019 required her to enrol the children in preschool as soon as possible, but that the Mother did not do so until 22^nd of July 2019. The Mother stated that this was because there was no “availability”. She confirmed that she did not, at that time, look at any possible, alternative school enrolment.[40]
[40] Generally, see T 67 – 68.
The Mother confirmed the children had an intake assessment for speech therapy on 6^th August 2019. However, they did not attend their appointment in October 2019 and instead went in July 2020. The Mother said that she had not provided the speech therapy information the Father had requested. In response to a question from the Bench, the Mother confirmed the Father was constantly and consistently requesting things from her lawyers; this was notwithstanding that the Father has direct access to the children’s school reports from the school itself.[41] Candidly, the Mother confirmed that some information regarding the children she had not provided to the Father, and had no other explanation or comment than “I just did not do it.”[42]
[41] T 67 – 72.
[42] T 71. The information here related to speech therapy for some of the children.
The Mother stated she was not concerned that the Court Child Expert, Ms H, had some difficulty understanding the children. The Mother noted that in the last three months, teachers at school had raised concerns about their difficulties in speaking to the children. The Mother stated she believes these speech difficulties have occurred since they resumed having contact with the Father.[43] The Mother confirmed that W did not have speech issues, but did have anxiety. The Mother confirmed he received special assistance from his school counsellor and a FACS counsellor around the time he had to give evidence in the Father’s criminal trial.[44]
[43] T 72.
[44] T 73 – 74.
The Mother confirmed that despite multiple requests she had not provided any information to the Father in relation to Mr P, the children’s counsellor, because the Father has the details and can access the material himself as her lawyers had previously provided the contact details.[45] Indeed, the Father gave Affidavit evidence of his various conversations with the children’s counsellor, Mr P.
[45] T 74 – 75.
The Mother confirmed that she had not done anything about the referral to see a specialist in relation to W’s nose. The Mother stated she asked W if he wanted to see a doctor but acknowledged she could have handled this better.[46]
[46] T 77.
The Mother confirmed that her evidence was the children commenced having problems at school when they resumed seeing the Father and during periods of time they do not see their Father, everything is better.[47]
[47] T 77.
The Mother agreed that she told the report writer that the children are “A” students. The Mother was taken through the children’s report cards and conceded it is fair to say they are not “A” students. She clarified that they were “excelling” at school.[48]
[48] T 78.
The Mother again stated that Z’s bad behaviour was related to seeing the Father. She acknowledged that when Z told the report writer Ms E that he hated the Mother, he had not seen the Father for 5 months. In response to a question that this outburst had nothing to do with the Father, the Mother reported that as she walked into the interview with Ms E, Z said he would get the Mother in trouble just as the Father had told him to.[49]
[49] T 79.
The Mother then answered a series of questions in relation to her proposal to move to City B. Notably, she confirmed she does not intend to cohabit with her new partner, who lives in City B, because they have too many children between them.[50]
[50] T 81.
She said that it was an eight hour drive between the parents’ residences if the Mother was permitted to move to City B. The Mother confirmed that the children loved their Father and enjoyed spending time with him, but that they do not enjoy the Father’s manipulation, lies and “mind games.”[51]
[51] T 82 – 84. This discussion included comments regarding the children expressing the wish to spend time with their Father, to which the Mother simply said that he is “the fun parent” and that she is not.
There were some general questions about the Mother’s “City B partner”, Mr Q, who filed no Affidavit in the Mother’s case. In short, they have known each other for approximately 18 months. He works in the construction industry, which is what led him to Town C for the construction project. The Mother said that, were she permitted to move to City B, she and Mr Q would not live together because (as noted above) they have “too many children” between them and because Mr Q works away from home.[52]
[52] T 81 – 82. At T 86 – 88, there is recorded the extended discussion with the Mother regarding her “Orders Sought”. I need not traverse this other than to note its existence, other than to note something of a summary of the Mother’s position (at T 88) (a) if she is permitted to move to City B, and (b) if she is not.
I should also note the following discussion between the Mother and Counsel for the Father regarding the limitation proposed on his time with the children, especially in the light of what is in Ms H’s Report (discussed below):[53]
[53] T 89.
… Other than [Ms H]’s report, has anything else changed between 11 July, when you filed your affidavit, and 1 August, when you sit here before the court today?‑‑‑Not – no.
The father has spent time with the children, hasn’t he?‑‑‑Yes. He had one supervised visit, yes.
And that supervised visit – there was a report ‑ ‑ ‑?‑‑‑Yes.
There was no concerns raised in the report?‑‑‑Correct.
The report from the children has been good?‑‑‑Correct.
They had a great time?‑‑‑They had an awesome time.
Okay. But, nonetheless, you are saying the father’s time with the children should be restricted to holiday time only?‑‑‑Yes, I do.
And that is not a position that you held until you saw [Ms H]’s report?‑‑‑And talking to the children, correct.
And talking to the children?‑‑‑Correct.
And when did you talk to the children?‑‑‑The kids spoke to me the other day after they left the supervised facility, and said it was the best time that they had ever had with their dad because dad did not ask questions or make them do things they did not want to do. That’s what I’m trying to nurture right now.
And that made you think holiday time only?‑‑‑After the supervised visits, yes.
Why?‑‑‑Pardon?
Why? Why did that mean holiday time only?‑‑‑Because it takes them so long to get adjusted every second weekends, so if he only has them on the holidays, then it’s going to be a lot easier for me to resettle them over the rest of the holidays.
In response to some questions from the Independent Children’s Lawyer (“the ICL”), the Mother provided details about her regular alcohol consumption. The Mother canvassed her usual weekly consumption and confirmed her alcohol consumption increased in the period 3 to 6 months prior to the trial because she was home more often due to her concerns of being watched in the street as well as the reports being made to Care and Protection. She confirmed that since the incident with the surveillance camera, she had no contact with the Father and therefore she was less worried.[54] Further, she said that on weekends she can go through a “six pack”, on both days. She said that her consumption in the earlier period of between 3-6 months ago was considerably greater.
[54] T 93 – 94.
The Mother then answered some questions about the food and provisions she has in the home for the children. The Mother again confirmed the children love their Father, had a good relationship with their paternal Aunt and their paternal Grandmother had attempted to send them letters, but this was not working because the children thought it was only because of Court. The Mother confirmed she had no problem with the children receiving letters and gifts on special occasions from their paternal Grandmother once the Court proceedings were over.[55]
[55] T 96.
The Mother confirmed she could do some things better as a parent, such as yelling and shouting at the children less, but that also she is a naturally loud person.[56] She confirmed she had done a parenting course, perhaps two years previously. The Mother said that she was not currently working outside of the home but that she had relevant health care qualifications and intends to return to this employment. [57]
[56] T 97 – 98.
[57] T 97 – 100.
In response to some additional questions in re-examination to the previously canvassed question of physical discipline, the Mother confirmed that in the future if it was a problem she could cut down her alcohol consumption and utilise the Region R Family Support services. The Mother confirmed her main motivation for moving to City B was to give the children more opportunities in a bigger town.[58] She also readily acknowledged that she would be prepared, or would accept, to delay her move to City B by 12 months to ensure that the children’s relationship with their Father could be strengthened.[59]
[58] T 105 – 106.
[59] T 105.
In short, the Mother’s evidence was frank and fair.
The Maternal Grandmother’s Evidence
The Court granted leave for Mr Samford to cross-examine the maternal Grandmother directly, rather than by Counsel pursuant to the s102NA Order.
In response to questions by the Father, the Grandmother confirmed that the Father had sometimes taken the children to school and picked them up. She also confirmed that the Father cooked dinner when the Mother was at work, did the washing and prepared the children for bed. The Grandmother could not confirm if the Father read the children books.[60]
[60] T 119.
The Grandmother confirmed she had never seen the Mother drunk when the children were in her care, other than one New Year’s Eve when the Grandfather was responsible for the children.[61] The Grandmother confirmed there was some history of alcoholism in the family.[62]
[61] T 120.
[62] T 122.
The Grandmother confirmed that she used physical discipline when raising her children and that every parent chooses how to raise their child.[63]
[63] T 124.
In response to questions surrounding an incident between the parents which the Grandmother observed, the Grandmother confirmed that she did not call the police when the Mother refused to do so. She noted that she regretted not acting protectively, but that she tries not to interfere with her children’s lives. The Grandmother confirmed that she would do things differently now if something similar happened.[64]
[64] T 124 – 125.
The Grandmother confirmed that she was aware the Father had alleged the Mother sexually abused the children, because they were questioned about it.[65]
[65] T 126.
In response to questions from the ICL, the Grandmother confirmed she does not have concerns of the Mother’s drug use. The Grandmother confirmed that the Mother drinks a bit but is not concerned about it. The Grandmother noted the Mother could be more patient with the children and noted that she is a very loud person, but that this was common in their family. She observed that the Mother was dealing with a lot of stress.[66]
[66] T 127.
I have no reason to doubt the Grandmother’s evidence.
The Father’s Evidence
Noting my earlier comments about the Father’s evidence compared to that of the Mother, notably significant rigidities and in a range of areas, his limited or lack of insight, summarised, the Father’s evidence was as follows.
At the outset of his oral evidence, the Father said that nothing in, for example, the Family Report of Ms H (discussed below), or in the Mother’s evidence to the Court during cross examination, caused him to change his mind about the range of issues or concerns he raised in his Affidavits about the Mother or the children.[67]
[67] T 130.
The Father agreed with the general proposition that he believed the Mother never had a close bond with any of the children since they were born. He also agreed that he thought the Mother only showed the children affection when the Mother needed comforting; he contended that the children were terrified of the Mother. He confirmed (as set out in his trial Affidavit: par.22) that, in his view, if he had not grown produce in the garden “the children and I would have starved at times due to lack of food provided by the Mother for us.” The Father said he believed the Mother was jealous of his bond with the children and that the Mother could be a monster.[68]
[68] T 130 – 133.
The Father denied he ever chose to leave the children in the Mother’s sole care, stating that the Mother removed them. The Father stated he did not tell the Mother to leave in 2016 and that she left against his wishes.[69]
[69] T 133.
The Father stated between April 2016 and May 2019 he attempted to contact the children and paid child support, but could not leave his employment in Brisbane. He confirmed that he had to leave the children in the Mother’s care because “she got custody of them” and that if he had left with the children they would have been returned. The Father also said that he thought there were different rights for Mothers and Fathers and that if he removed the children from the Mother he would have been charged.[70] He said that he did not seek a recovery order as he did not have any money to pursue such a course, and further that he did not meet the Legal Aid means assessment.[71] The Father confirmed he was earning $200,000 per year after the Mother left, but that he did not know where the money was going and that the Mother was paying bills out of the Father’s bank accounts.[72] It was unclear how or why he had “had no control” over the financial side of things at the time. Some of these responses seemed rather unbelievable, especially regarding his income at the time and the inability to secure legal representation. He simply said that the Mother was paying bills by using funds from his bank account, but otherwise he simply did not know where his money was going.[73]
[70] T 134.
[71] T 134 – 135.
[72] T 135.
[73] T 135.
The Father stated that he hoped the Court would not be biased against him as a Father, but noted that (in his view based on general conversations with friends and others) more often than not “the Mother gets the children”. The Father accepted this may be because more often than not the Mother took primary care of the children prior to separation.[74]
[74] T 135 – 136.
The Father confirmed that he had previously made complaints about the fairness of these proceedings including that the ICL had not been acting in the best interests of the children. The Father confirmed he thought Ms O was “fraudulent”. The Father confirmed that Ms E should be criticised too because the children reported to her what they wanted to tell the judge, but it was not included in the report. The Father conceded Ms H did a fair job and that Dr S was brilliant.[75]
[75] T 136 – 138.
In this regard, the following excerpts from Dr S’s Report, and the Father’s comments, are illustrative (emphasis in original):[76]
[76] T 138 – 139.
DR BEHRENS: So when [Dr S] described you as – sorry – I will just find the report. I’ve got too many folders. When [Dr S] described you in this way – you understand he wasn’t able properly to assess you because you – the tests that he administered to you suggested that you weren’t answering in a frank way; you understood that?‑‑‑Well, I don’t think that was his wording.
Well, we can go back to that if you like. At page 20 of his report – I can have it shown to you if you like, but see if you just accept this from me – at line 951:
[Mr Samford] completed the PAI on 12.11.2020; however, the test was deemed invalid due to the exceptionally high score on the PIM scale. The positive impression involves the presentation of a very favourable impression or the denial of relatively minor faults.
So that’s really what he’s saying there, isn’t he?‑‑‑Yes, I agree with that statement you just made; that’s in the report.
Yes. And so he wasn’t able to assess you because of that, was he?‑‑‑He had done the rest of the assessment, though.
Yes. He did the rest of the assessment, and he said this about you – this is at page 25 – again, tell me if you need to see the report to confirm – at line 1201:
I cannot make a psychological diagnosis of [Mr Samford]. He did not admit to having psychological problems. I am almost certain he has significantly under-reported any psychological difficulties he has had in the past.
And then at line 1215:
I would conclude that [Mr Samford] is a difficult personality, reactive in his relationship with [Ms Edmondson], and perhaps controlling and manipulative, but I cannot conclude that he has either a personality or psychological disorder.
So you’ve described that – that’s one of the opinions in the report that you would describe as brilliant, would you?‑‑‑Well, I wouldn’t say it’s brilliant for me but ‑ ‑ ‑
You would agree with it?‑‑‑I – I, yes – I can be difficult if I don’t think I’m getting a fair go.
And, what, you don’t think you’re getting a fair go in these proceedings; is that right?‑‑‑Some of the things have been a bit stacked towards me, I believe.

Notwithstanding Ms H’s recommendation that the children remain living with the Mother, the Father continued to press his Application for a change in the residence of the children.[77]
[77] It should also be noted here that no expert recommended a change in the residence of the children from the Mother to the Father. The Father acknowledged this: see T 140.
The Father confirmed he always believes what the children say. It was then put to the Father that he did not believe W when he gave evidence in the Father’s criminal proceedings. The Father confirmed this was the reason why he did not appeal the findings made against him in the criminal Court, because to do so he would have to “destroy” W.[78] This alarming comment by the Father, doubtless intended to reflect a concern on his part (which it was, in certain, limited, respects) was part of wider concerns noted further below.
[78] T 138.
The Father confirmed (as noted above) that some of Professor Dr S’s assessments of him were not favourable and agreed that he could be difficult if he did not think he was getting a fair go. The Father confirmed he did not think he was getting a fair go in these proceedings and that some things had been stacked towards him. The Father said this included Ms O’s Child Impact Report because, while it does not make any difference now, three years ago if his response material had been considered when the report was completed, it could have made a large difference to her report. In response to a question from the Bench that perhaps such a fixation tends to provide some distortion in his perspective, the Father confirmed that it was in the past, but he remained determined that it could have led to a different conclusion.[79] It was unclear how this might have occurred. There was also brief discussion (canvassed in more detail later) that Child Protection authorities had noted that it appeared that the Father had influenced the children in their views.[80]
[79] T 138 - 140
[80] T 139.
The Father confirmed that in May 2019 he unilaterally relocated with the children to Town D. He confirmed he never thought of moving back to Town C because there was no work for him there.[81] The Father also agreed that one of the reasons for moving to Town D was to be closer to his sister. The Father agreed that during his relationship with the Mother, the children had no contact with his sister but resumed contact with his family after separation.[82] He went on to confirm, however, that the children now will not even talk about the Father’s family.[83] The Father also confirmed that, because he did not have a “head for it”, he did not remember his children’s birthdays but instead had this information written down.[84]
[81] T 141. Town D is a two hour drive from Town C, the town of the Mother’s residence.
[82] T 142.
[83] T 142.
[84] T 146.
The Father also agreed that for the bulk of the children’s lives, notably the twins (who are now, at the time of the trial, 8 years old), they have lived with and been cared for predominantly by the Mother, and for significant periods of time, without any assistance from the Father.[85]
[85] T 146.
The Father denied his negative comments about the Mother (noted above) were horrible things for the simple reason that they were true. He was not swayed in his adverse views towards the Mother by the very positive comments by experts such as Ms H regarding the Mother’s obviously close bond between the Mother and the children.[86] He simply commented that this assessment was “based off someone else’s evidence.” It was unclear what he exactly meant by this; perhaps it was an indication that he did not accept Ms H’s evidence?
[86] T 146 – 147. See also T 148.
The Father accepted the family report writers are qualified and because they stated the relationship between the Mother and the children is strong, the Father must agree. However, the Father expressed concern that the Mother influenced the children before the reports and used the information against them afterwards. It was put to the Father that the report writers would usually indicate if they had concerns of coaching. The Father accepted this but referred to one occasion where X cried when he thought he had said something he was not supposed to. The Father accepted that based on his experience, anything positive the children said about the Mother should be heavily qualified. [87] The Father’s blatant refusal to accept the most basic and stark evidence of a range of experts and their observations was very concerning. Everything was seen or filtered by the Father through the blinkers that (a) the Mother controlled or influenced the children, and (b) the children responded to the Mother out of fear of punishment.[88] Such views were not supported by anything from the large body of expert evidence before the Court.
[87] T 148 - 149
[88] T 148.
The Father said he was not reassured by comments from the school principal that confirmed that the children attended school consistently and had food in their lunchboxes. The Father stated he was not comforted because there were other reports from the principal stating W was a year behind in his schooling.[89] Similarly, the Father said he was not comforted by a Department of Family and Community Services report which stated the children have a small but workable home, sufficient healthy food and hygiene. The Father returned to his usual complaint that the Mother only fed the children “hot chips and gravy”, which was not adequate food.[90]
[89] T 153.
[90] T 150.
The Father agreed he did not put anything positive about the Mother in his Affidavit or say anything positive to the report writers. The Father accepted that it is really hard work raising four children as a single Mother and that he had read all the things the Mother does for the children in her Affidavit. However, the Father confirmed the only positive thing he could say about the Mother was that “she can be kind and loving, but it does not last”.[91]
[91] T 158 – 159.
The ongoing difficulty of the Father being able to accept anything other than his very jaundiced view of the Mother is caught well in the following brief exchanges about (a) the Mother’s wish to move to City B, (b) the Father’s claim that the children do not say anything opposing the Mother’s views, and (c) some of the children articulating views to Ms H that they do not want to go to City B. Clearly the children were not either frightened, coerced or pressured sufficiently to follow, or adhere to, the Mother’s expressed desire. Thus:[92]
And yet, here we have one of the major things that Mum wants to do and the children are saying things that are different from what Mum wants; do you accept that?‑‑‑Yes, they are.
So if it was the case that [Ms Edmondson] was telling them what to say and what to do, they wouldn’t have said, “We don’t want to go to [City B]”, would they? They would have just said, “Yes, yes. We want to go to [City B]”; wouldn’t they?‑‑‑No, I disagree because they’ve made other statements, as well, that go against what she wants where they’re saying that she hits them, where [Z] said that she kicked him out of the car, or something along those lines, but they’re all statements she didn’t want them to say.
HIS HONOUR: Doesn’t that all, whether it’s about them saying, “We don’t want to go to [City B]”, whatever it is, it shows that if there is any influence that the mother has over them, that they feel sufficiently free and able to state their own views, yes?‑‑‑Well, I would say it’s the extent that we don’t know like notes where I think is where some things are getting out but some things aren’t.
DR BEHRENS: So you cannot be comforted that, having seen a report of [Ms H], that the children are safe and well cared for by the mother; you can’t be comforted?‑‑‑I don’t agree with that statement whatsoever.
[92] T 151.
The Father also maintained his strongly negative view of the Mother regarding things like her “consistent boundary settings” (or rather the lack of them) for the children and her protection of the children. He rejected the positive comments on these matters by, for example, Ms E. The unyielding, negative view of the Father about the Mother was further exemplified by the following exchange (emphasis in original):[93]
[93] T 152 – 153. The Father similarly refused to accept positive comments about the Mother and her care for/of the children from the Department of Family Services. See T 153 – 156.
You read that [W] described his mother – this is at paragraph 47 of the 2021 report – as:
Protective and said he enjoys playing with her and showing her stuff.
Do you remember reading that?‑‑‑Yes.
That’s not consistent with what – with those statement that you’ve said about the mother is it?‑‑‑That statement’s not.
Doesn’t cause you to pause and think, “Maybe I’m wrong when I say [Ms Edmondson] never had a close bond with any of the children”. Doesn’t cause you to pause and think about whether that’s right?‑‑‑No, not really.
HIS HONOUR: Would you go so far as to say that, based upon your experience, anything positive that the children say or display, that’s recorded in any of the family reports, you don’t accept or you say it should be heavily qualified?‑‑‑But I didn’t – what was that last bit, qualified?
Or heavily qualified?‑‑‑I’m not sure what you’re asking there, exactly.
I’m just asking, as a general proposition, based upon your experience, anything that’s stated positively about the mother’s and the children’s relationship that’s set in – set out in any reports or any of the positive interactions by the children, from your experience, you don’t accept?‑‑‑I think it’s an encouraged response. Like ‑ ‑ ‑
Right. No, sorry. Could I have a yes or no answer? And then we can get into some of the nuts and bolts if we need to. Would you accept that as a general proposition or not?‑‑‑I would accept that as a general proposition, yes.
DR BEHRENS: And it’s the case, isn’t it, that the report writers and – have spoken to other people who’ve worked with the children; you understand that?‑‑‑Yes.
And that the Department of Family and Community Services has carried out a comprehensive assessment of the care [Ms Edmondson] provides to the children in 2020; do you accept that?‑‑‑Yes.
So [Ms E], in her report, spoke to [Mr T], who I assume is the principal at the children’s school; is that right?‑‑‑He is.
And at paragraph 66 of her report she records [Mr T] saying:
The children attend school consistently and are appropriately dressed and have sufficient food in their lunchboxes.
Remember reading that?‑‑‑I do.
And does that reassure you that the children are being cared for appropriate if someone who sees them everyday during the school term is saying – and who’s responsible for their welfare says “all okay”?‑‑‑No, because there’s other things in that report that don’t go along those lines like ‑ ‑ ‑
So you’re not comforted by the principal at your children’s school speaking to a child expert writing a report and saying “the children attend school consistently, are appropriately dressed and have sufficient food in their lunchboxes”; that provides you no comfort?‑‑‑Not when there’s reports in there from [Mr T], as well, stating two years after the fact was made aware that [W] is still a year behind ‑ ‑ ‑
What was also clear from the Father’s evidence, particularly his rejection of anything positive about the Mother in assessments by experts or governmental authorities, was that he considered each assessment (by whomever) as simply reflecting a momentary snapshot in time. As such, in his view, any and every assessment did not have the benefit of the longer history he maintained he knew and experienced with the Mother and the children – notwithstanding that there have been long periods of time when he was not physically present to or with the Mother and children.[94] As noted earlier in these reasons, the Father confirmed that he had nothing positive to say about the Mother in the material he put before the Court.[95] In the witness box, he said that the Mother can be “kind and loving” but that it does not last.[96]
[94] See, for example, the discussion at T 158.
[95] T 158.
[96] T 159.
The Father accepted, after a few attempts to clarify matters, that his child support payments of $17.59 per fortnight would not go very far in supporting the children. He seemed to suggest or at least imply in this discussion that the Mother was not really badly off with such a small amount of child support because she “gets a pension from the Australian Government.” He said that he has never offered to pay the Mother anything more in child support; he currently worked as a casual labourer on a farm for minimal wages.[97] Such comments struck me as lacking in insight to a significant degree, being really quite niggardly in relation to the care for and support of his family, and abjectly refusing to accept any proper responsibility for them.
[97] T 159 – 160. The Father said that there was not much work in Town D.
In response to a question that he had previously earned $200,000 per year, the Father stated that everyone has the capacity to earn more but he chose to work on a Farm because there is not much other work in Town D. The Father confirmed it is possibly an option to go back to the construction industry, but that he has not been in the right headspace to do so because of the proceedings and the responsibilities of the job. The Father confirmed if he were to return to construction, he would likely need to work in Melbourne. [98]
[98] T 160. The Father confirmed that working in the construction industry in Melbourne was “an option.”
Some of the difficulties regarding the Father’s evidence are further, neatly captured in the following exchange regarding the Mother living on limited benefits from Centrelink:[99]
DR BEHRENS: So you understand that [Ms Edmondson] is not currently in paid employment in [Town C]?‑‑‑Yes, I do.
And that she hasn’t been able to find – her evidence is she hasn’t been able to find paid employment in [Town D]– sorry, in [Town C], since she lost her work in the COVID pandemic?‑‑‑Yes, that’s right.
And you’ve acknowledged that there are limited work opportunities in [Town C]. You said that yourself?‑‑‑Yes. For the type of work I do, yes.
And – well, for the type of work anyone does. There’s not much work in [Town C]. That’s a fair statement, isn’t it?‑‑‑Yes. It’s a small town.
And so she is living on $1500 a fortnight from Centrelink. Have you seen that evidence? No reason to doubt that, do you?‑‑‑There was something about $800 in there as well – every other week or something, in one – so there’s a bit of a discrepancy there, so ‑ ‑ ‑
Well, you would accept that living on Centrelink with four young children, she’s not going to have very much spare money, if any, is she?‑‑‑That’s judged by the government. I’m pretty sure they would be making the right ‑ ‑ ‑
No. I’m not asking about whether it’s fair or not. I’m just asking you to accept what I would have thought was a fairly reasonable proposition, that if she’s living on Centrelink, there’s not likely to be any spare money, if any?‑‑‑It depends how you budget.
HIS HONOUR: So you won’t accept that anyone whom is on Centrelink benefits, that they’re not necessarily going to be flushed with funds. Do you accept that or not?‑‑‑No. It would be a struggle. You would have to be careful ‑ ‑ ‑
[99] T 163. This discussion about the limitations on the family (e.g. to go on holidays, for further education for the children etc) because of very limited finances for the Mother continued at T 164 – 166. Nevertheless, and in the same place, the Father continued to blame the Mother regarding the children’s modest school reports. He maintained that they could do “a lot better.” There is no need to comment on such impoverished statements. Fortunately, at the end of his evidence in Court, after having a chance to look at the children’s most recent school Reports, he said that they were “great reports.” See T 212.
In response to questioning about W being one year behind at school, the Father said this was the Mother’s fault. The Father did not accept that W could not get into health care classes at university if he continues to attend Town N High School. The Father stated he is not allowed to access the children’s school reports but confirmed he had not attempted to get a copy of W’s high school report.[100] The Father acknowledged the Mother should be given some credit for W’s improvements but that he thought the children’s reports could be better and he was concerned at the amount of days the children had been absent from school. Notwithstanding the Father’s alarming (in my view) and constantly negative view of the children and their efforts at school, including that they could “do better”, and similarly of the Mother, and his essentially total lack of financial support for the children, he did not acknowledge that he was [being] constantly negative and pessimistic.[101] His evidence tended to paint a fundamentally, persistently negative attitude (with only the very slightest concession of something positive to lighten the darkness) towards anything and everything to do with the children and the Mother. Even the very positive School Report for X for the Second Semester in 2022, the Father acknowledged that it was good but would only grudgingly concede anything positive in the Mother’s contribution to it. He simply said that he would give her “some credit.”[102] Hardly effusive praise or even basic or proper recognition for the Mother who continues to parent the children on her own – with some assistance from the maternal Grandmother.
[100] T 164 – 165.
[101] T 166.
[102] T 168.
The Father stated the Mother was abusive towards him and the children during the relationship. The Father denied that he was ever physically abusive to the Mother, but agreed that at times when they argued it became heated.[103] Such “heat” in the argument, the Father said, included both parties using “foul names” for the other. This was sometimes in front of the children. Upon accepting a list of genuinely appalling names he used towards the Mother, showing again lack of insight, he responded that he was “goaded” into using such language, thereby implying that restraint and control were not then, at least, part of his daily make-up.[104]
[103] T 172.
[104] See 173 – 174.
The Father often focussed upon what were/are really quite trivial matters, such as Awards the children receive from school not being signed, and (not quite so trivial but still outside of the Mother’s responsibility) how the school recorded the children’s absences in their Reports.[105]
[105] Among various places, see T 175 – 176.
There was some specific discussion about some troubling behaviour of Z at school, which involved him punching a student, and various acts of defiance and rudeness towards a teacher. His conduct at the time (in 2020 and 2021 generally) was very poor. It was indicated that on one occasion that Z was reported as saying that “Dad told me that the teacher is a bitch.”[106]
[106] T 178. Sometimes, there was an interchange between references to W and Z. Occasional confusion in name/identity does not really affect the discussion regarding the behaviour of one child or another in the general circumstances where conduct and parenting were the subject of both general and specific scrutiny.
Counsel then returned to the topic of the children lying to both parents. The Father denied that children sometimes lie to say things they think adults want to hear. Instead the Father stated that children sometimes lie to protect themselves. The Father agreed it is possible that the children sometimes lie, but denied Y was lying when she reported the Mother told her that she is ugly and that the Father does not love her.[107] The general tenor of the contest on this aspect of the Father’s evidence, and a rather rigid view regarding what the children may or may not tell each parent, is captured well in the following exchanges (emphasis in original):[108]
[107] T 179 – 183.
[108] T 179 & 180.
So, you believe that when the children have told you things in the past about the mother, that they are the truth? You believe what the children tell you?‑‑‑Yes.
You don’t accept that sometimes they might tell you things that aren’t true?‑‑‑No, the children have never had a need to lie to me. They know that I like the truth.
So, you can’t accept the proposition that children sometimes tell adults things that they think the adults want to hear; can you not accept that?‑‑‑I think sometimes children do it to make sure they’re protecting themselves from adults around them.
So, that – so, the children might say things that aren’t truthful in respect of the mother to her, but not to you; is that what you’re saying?‑‑‑Yes, they might.
So, you don’t believe that anything that the children have said to you about the mother and her household could be untrue?‑‑‑No, it’s all stuff that I had seen myself.
Could be exaggerated?‑‑‑No.
And that they could be telling you some of that stuff because they think that you want to hear it?‑‑‑No.
…
And you believe that in fact [Ms Edmondson] has said, “Dad’s dumb and you are just like him,” or something like that?‑‑‑Yes, something along that, I think.
You really believe that [Ms Edmondson] said that to your children?‑‑‑Yes.
You say the children have told you – again, I don’t know who:
Mum says you won’t win us because you don’t love us.
That’s at paragraph 130 of your affidavit – can you remember which child said that to you?‑‑‑Don’t know. Could be [Z], I think, maybe.
[Z]. Well, you didn’t take the trouble to specify that in your affidavit, did you, which child had told you that?‑‑‑Well, a lot of them have said it over time.
So, a lot of them have said, “Mum says you won’t win us because you don’t love us.” Is that right?‑‑‑Yes, well, it has been said by a couple of them.
What, exactly those words?‑‑‑Yes, around – around those words. Those words or to the extent of.
And you believe that Ms Edmondson said that?‑‑‑Yes.

Somewhat more recently, Warnick J stated that:[146]
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[146] B & B [2006] FamCA 1207 at [1]. Warnick J was sitting as the Full Court, pursuant to s.94AAA of the Act.
Respectfully, I agree with Warnick J, and the earlier statements of the High Court to which I have referred.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[147]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[147] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
It might be noted more summarily that Austin J (sitting as the Full Court) said in Franklyn & Franklyn, at [41]:[148]
… [a] primary judge [is] obliged to give sufficient reasons to explain the overall result: not to explain every forensic step in reaching that result.
[148] Franklyn & Franklyn (2021) FLC 94-031.
Two other preliminary comments are also important to record here. First, the Full Court observed in Wiley & Wiley (a “relocation case”):[149]
... it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
[149] Wiley & Wiley [2008] FamCAFC 153 at [70].
Secondly, in U v U, Kirby J emphasised the importance of considering the long-term interests of the child rather than just focusing on their short-term interests.[150]
[150] U v U (2002) 211 CLR 238 at p.283 [164]. His Honour also said, in the same place: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such [relocation] cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
It is also important to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have proper regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[151]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[151] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[152]
[152] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. The Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[153]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[153] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[154]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[154] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[155] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].[156]
[155] McCall v Clark (2009) 41 Fam LR 483.
[156] Sigley & Evor (2011) 44 Fam LR 439.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Finally, I consider – briefly – such matters not otherwise addressed in these reasons that might be said to arise out of “relocation cases.”
In F v F, I set out a summary of relevant principle drawn from High Court and Full Court authorities in relation to relocation.[157] That summary is set out below, but with an edited selection of internal citations quoted; thus:[158]
[157] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) [2010] FamCA 1138 at [244] & [245].
[158] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-348 at [100], and Cales & Cales (2010) 44 Fam LR 376 at [139].
a)   In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. Powell v Ptolemy, [48]).
b)   The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[159] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
c)   Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]. Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[160] Freedom of movement, however, takes second place to the paramount interests of the child.
d)   There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)   The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether relocation is, or is not, in a child’s best interests.
f)   Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation” [93].
g)   In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171] & [172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
h) This summary of principle must, of course, be understood in the context of the ‘prescribed legislative pathway’ or scaffold in Part VII of the Act, to which I have already referred. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
[159] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[160] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].

To this instruction, I note the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[161]
[161] McCall v Clark (2009) 41 Fam LR 483. See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
I draw attention also to the recent comments of the Full Court in Blanding, which involved a parent seeking to relocate, who was permitted to do so.[162]
[162] Blanding v Blanding (2017) 55 Fam LR 218.
At [166], the Court said:
… the apportionment of weight or importance to evidence is a matter for the exercise in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
In the earlier [2019], same-named Full Court decision in Franklyn & Franklyn, at [27] and [28], the Court said (some internal citations omitted):[163]
[27] There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210) …
[28] While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232 ... Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
[163] Franklyn & Franklyn [2019] FamCAFC 256.
Finally, it is as well to note the recent Full Court’s comments in Hendy & Penningh, which provide a neat summary or overview regarding parenting matters that involve relocation.[164] At [50], the Full Court said:
As the Full Court said in Malcolm and Munro (2011) FLC 93-460 at [83]:
We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
[164] Hendy & Penningh (2018) FLC 93-879.
Also in Hendy, at [84], the Full Court commented on the proper assessment to be made of “family violence” and its import for the making of Orders such as for equal shared parental responsibility (emphasis added):
We agree with counsel for the mother that it was necessary for the primary judge to consider the totality of the evidence concerning family violence and reflect on the reality of how these parents could give effect to an order for equal shared parental responsibility before an order of that type could be made. To isolate the relevance of evidence of family violence merely to the application of the presumption of equal shared parental responsibility was wrong. It was plainly relevant to the broader question of the allocation of parental responsibility once that issue was at large.
Consideration and disposition
The following remarks follow sequentially, without necessarily naming each of, the “considerations” in s.60CC(3) of the Act. Just as the ICL noted at the outset of his submissions, likewise here I note, if not repeat, the undisputed reality that the children have lived with the Mother all of their lives. In the light of the evidence, and my comments in the course of the trial recorded above, it is unrealistic for the Court to consider the Father’s proposed Order for a change in residence for them. In this regard, there is the further consideration of the Father’s extremely limited income from his manual labour on a farm in country Victoria, and his current inability, essentially for mental health reasons, to return to work in the construction industry. Moreover, his evidence was that if, or when, he is able to work in that industry, it would likely have to be in Melbourne or some other large city. All of these factors strongly and realistically militate against the Court considering favourably the Father’s Orders sought regarding primary residence of the children to be with the Father. Such a change, on the evidence, would plainly not be in their best interests.
Also as something of a preliminary but central issue, is the Court’s consideration of “family violence” under 60CC(2)(b) and (2A), as well as under s.60CC(3)(j) and (k). In this regard there is incontrovertible evidence, notably but not only from the Father’s conviction in November 2021 regarding “intimidate with intention to cause physical or mental harm.” He also involved the child W in the planting of a surveillance device in the Mother’s residence. Involving his eldest son showed alarming lack of insight. It matters not that the Father is adamant that he was, and is, innocent, and that W lied to the Magistrates Court. Even in the face of the formal findings of the truth of W’s evidence in the criminal proceedings, and notwithstanding that the Father remained steadfast in his view that W lied, the Court has before it, and has accepted, specific findings made in the Magistrates Court, which were adverse to the Father. These were noted earlier in these reasons as noted from the Transcript of the trial in this Court.[165]
[165] T 13.
Very summarily, having regard to the various (and sometimes fluctuating) views of the children, now recorded over a period of time in multiple reports, and having regard to their still relatively young ages, it is difficult to place very much weight on them. The Mother’s submissions (at pars.31 – 33) fairly cover the views of the children. I accept those submissions, as does the ICL (at par.16).
Notwithstanding that there were, and remain, very significant issues between the parents, and the fact that the children have not spent any time with the Father for many, many months, remarkably, they still have a good and close relationship with the Father (sub-pars.(b) & (d)). As noted by Ms H, significant credit must be given to the Mother for maintaining this good and close relationship between the children and the Father. It also strongly suggests that, in being permitted to relocate to City B in 12 months’ time, the Mother will keep up the positive strategies to support these relationships.
In relation to the considerations under sub-paragraphs (c), (ca), (f), (g) and (i), each and all of which in various ways focus upon the parenting capacities and responsibilities of the parents and the exercise of same, summarised from the evidence before the Court, the following should be taken to be formal findings:
(a)The Father has provided minimal financial or other material and financial assistance for the care of the children since separation, and notably since his move to country Victoria. He has a highly jaundiced view of the Mother, her parenting capacities, and general insight and care of the children. The evidence generally says otherwise. He was consistently and highly critical of the education of the children, but late in the trial accepted that the school reports of the children were “great”, which rather undercut his carping criticism of the Mother, at least on this front, and indicated that the Mother, essentially single-handedly, has managed the care (materially and otherwise) of the children for a significant time in the absence of the Father and with little or no financial and other support;
(b)As already noted, the Father’s conduct in getting W to place a surveillance device in the Mother’s home, was as astonishing as it was appalling. It showed extremely poor judgment and insight on every level;
(c)The Mother accepted a number of her own failings and indicated her attempts – current and in the future – to address them. The Father showed few such insights into either his short-comings as a parent, or in relation to any remedial action he might undertake. Positively, he acknowledged his relatively poor mental state in relation to taking on responsibility on a building site, as he had done during the relationship;
(d)The Mother’s proposal to move to City B where there are greater services and opportunities (albeit broadly defined) suggests that such extra capacity to access services and the like for the children, which are not readily available in a small, town, will be advantageous to the children as well as the Mother.
There is no doubt that, for the purposes of sub-paragraph (e) and matters of practicality and cost of travel, a move by the Mother and the children to City B will increase travel times and the costs associated with same. This said, the children have been travelling for some four to six hours on a return trip from their current residence in Town C to a supervision centre in country Victoria. If the children have to travel from Town C to Town D (where the Father currently lives), this would be a three and a half hour round trip. It is, perhaps, not completely inapposite to consider such things here as a question of degree. No less significantly, the Mother’s insightful and unprompted consideration of delaying this move for 12 months will ensure that the children’s relationship with the Father, already sound, should only improve.
In my view, in addition to accepting and adopting the submissions of the ICL, and on behalf of the Mother generally in relation to the “considerations” under Part VII of the Act, I also accept them in relation to the assessment of the evidence that necessitates an Order for sole parental responsibility in the Mother’s favour, subject only to consultation as set out below. This is to say that, before any major long-term decision is made by the Mother pursuant to the Order in her favour of sole parental responsibility, she is to provide to the Father in writing a short note (e.g. via a parenting app) containing notification and any basic information considered by the Mother as directly relevant to the proposed decision. The Father may comment within 7 days after receiving the notification. If there is no response from the Father within that specific time the Mother may make such decision as she thinks is in the best interests of the children without further notice. If the Father comments in relation to the proposed decision, the Mother should reasonably take it into account before making the ultimate decision.
Conclusion
In addition to the evidence outlined and discussed at length, which, in my view, undermines the Father’s allegations against the Mother and her parenting, it is in the best interests of the children to relocate to a larger city that will provide more opportunities for them and the Mother. The Mother, as the primary carer of the children, should be permitted to relocate to City B. However, noting that the children are still re-establishing their fractured relationship with their Father, this move should be delayed by 12 months from the date of these Orders.
In my view, in addition to the considerations and evidence outlined above, given the children are to relocate to City B with their Mother, she should hold sole parental responsibility, as earlier indicated.
As already noted above, the comments by the Full Court in Hendy & Penningh, provide a neat summary or overview regarding parenting matters that involve relocation.[166] At [50], the Full Court said:
As the Full Court said in Malcolm and Munro (2011) FLC 93-460 at [83]:
We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
[166] Hendy & Penningh (2018) FLC 93-879.
In my view, having regard to these principles, and applying them to the facts and circumstances here, the Orders sought by the ICL and the Mother are clearly and plainly in the children’s best interests.

I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 22 February 2023

File number(s):	CAC 976 of 2019
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	22 February 2023
Catchwords:	FAMILY LAW – Parenting – relocation – where the Mother seeks to relocate with the children to City B, NSW from Town C, NSW – where the Father lives in Town D, VIC and opposes the relocation – Mother consents to delaying relocation for some time to allow the Father to re-establish his relationship with the children – Father has not had contact with the children due to criminal proceedings in which one of the children was required to give evidence – Father found guilty of various offences against the Mother – Certificate pursuant to section 128 of the Evidence Act 1995 (Cth) - Mother re-partnered but does not propose to live with her new partner – Mother seeks to relocate to a larger town with more opportunities - Mother seeking Father spend time with the children during holidays only regardless of whether the relocation is granted – clear views expressed by the children against relocation – consideration of best interests of children – relocation granted in 12 months’ time once the children have re-established their relationship with their Father – Mother to have sole parental responsibilities – children to spend time with Father in school holidays.
Legislation:	Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) ss 60CC, 61DA, 69ZX(3)(b), s102NA
Cases cited:	AMS v AIF (1999) 199 CLR 160 B & B [2006] FamCA 1207 Blanding v Blanding (2017) 55 Fam LR 218 Cales & Cales (2010) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 F v F (2008) 38 Fam LR 52 Fox v Percy (2003) 214 CLR 118 Franklyn & Franklyn [2019] FamCAFC 256 Franklyn & Franklyn (2021) FLC 94-031 Godfrey v Sanders (2007) 208 FLR 287 Hendy & Penningh (2018) FLC 93-879 Hepburn & Noble (2010) FLC ¶93-348 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 Payne v Payne [2001] Fam 473 Sheldon & Weir (No.3) [2010] FamCA 1138 Sigley v Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153
Division:	Division 2 Family Law
Number of paragraphs:	173
Date of last submission/s:	1 November 2022
Date of hearing:	1- 2 August 2022 & 15 September 2022
Place:	Canberra
Counsel for the Applicant	Dr J Behrens
Solicitor for the Applicant	Neilan Stramandinoli Family Law
Counsel for the Respondent	Ms M Davis under s120NA for the purposes of cross-examination of the Mother only
Solicitor for the Respondent	Self-represented with Gabbedy Milson Lee under s120NA for the purposes of cross-examination of the Mother only
Solicitor as the Independent Children’s Lawyer	Barker & Barker

CAC 976 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS EDMONDSON Applicant
AND:	MR SAMFORD Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE W J NEVILLE
DATE OF ORDER:	22 february 2023