Garton & Dale (No 2) - [2023] FedCFamC1F 24

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garton & Dale (No 2) [2023] FedCFamC1F 24

File number(s): MLC 11826 of 2020

Judgment of: WILSON J

Date of judgment: 31 January 2023

Catchwords:
FAMILY LAW – RELOCATION – best interests of the child – relevant legal and factual considerations – application refused.

FAMILY LAW – PARENTING – application for the enlargement of time for the father – application granted.

Legislation: Family Law Act1975 (Cth) 4AB, 60B, 60CC and 65DAA

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Commonwealth v Baume (1905) 2 CLR 405

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

G & C [2006] FamCA 994

Galea v Galea (1990) 19 NSWLR 263

Gerber & Beck [2020] FamCA 210

GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337

Godfrey v Sanders (2007) 208 FLR 287

Honeysett v The Queen (2014) 253 CLR 122

In the Marriage of Scott (1994) 17 FamLR 420

Isles v Nelissen (2022) 65 Fam LR 288

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Lovell v Lovell (1950) 81 CLR 513

M v S (2006) 37 Fam LR 32

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mazorski v Albright (2007) 37 Fam LR 578

Morgan v Miles (2007) 38 Fam LR 275

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Richter v Richter (2019) 63 Fam LR 102

Sigley v Evor (2011) 44 Fam LR 439

South West Water Authority v Rumble’s [1985] AC 609

Taylor v Barker (2007) 37 Fam LR 461

Taylor v Public Service Board (1976) 137 CLR 208

Yarrow & Yarrow [2022] FedCFamC1A 135

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 189

Date of last submission: 16 November 2022

Date of hearing: 4-6 and 17-20 October 2022 and 14-16 November 2022

Place: Melbourne

Counsel for the Applicant: Mr J. Werner

Solicitor for the Applicant: Kelly & McHale Family Lawyers

Counsel for the Respondent: Mr C. Dunlop

Solicitor for the Respondent: Nicholes Family Lawyers

Counsel for the Independent Children's Lawyer: Mr D. Robertson
ORDERS

MLC 11826 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GARTON

Applicant

AND:
MS DALE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

WILSON J

DATE OF ORDER:

31 JANUARY 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother and father have equal shared parental responsibility for the child X born 2018 (“the child”).
3.The child live with the mother.
4.Commencing from the date of the making of these orders the child shall spend time with the father as follows –
(a)in week one, Friday from 3:30pm until Monday 9:00am; and
(b)in week two Wednesday from 3:30pm until Friday 9:00am.

5.Upon the child commencing primary school, paragraphs 3 and 5 of these orders are hereby terminated and the child live with the mother and father on a week about basis from Friday 3:30pm until the following Friday at 9:00am or the commencement of school (whichever occurs earlier).
6.The child and the father must communicate via video call as follows –
(a)commencing from 31 January 2023;
(i)in week one, on Monday and Wednesday between 5:00pm and 5:30pm; and
(ii)in week two, on Saturday between 5:00pm and 5:30pm;

(b)upon the child commencing primary school and thereafter –
(i)every Monday and Wednesday the child is not ordinarily in the father's care between 5:00pm and 5:30pm.

7.The child and the mother must communicate via video call as follows –
(a)commencing from the date of these orders:
(i)in week one, on Saturday and Sunday between 5:00pm and 5:30pm; and
(ii)in week two, on Thursday between 5:00pm and 5:30pm;

(b)upon the child commencing Primary School and thereafter –
(i)every Monday and Wednesday the child is not ordinarily in the mother's care between 5:00pm and 5:30pm.

8.The time the child spends with the mother is suspended to enable the child to spend time with the father, in addition to other orders, as follows –
(a)commencing from the date of these orders, for 7-days over the New Years Eve holiday period at dates and times as to be agreed in writing and in default from 12:00pm New Years Eve until 12:00pm 7 January;
(b)upon his enrolment in and attendance at primary school –
(i)for one half of every term 1, term 2 and term 3 school holiday period, commencing at 5:00pm on the last Friday of term until 5:00pm on the middle Friday, or otherwise as agreed between the parties in writing;
(ii)for a period of 21-days of every summer school holiday period, at dates and times as agreed between the parties in writing and in default –
A.in even years, commencing 12:00pm New Years Eve; and
B.in odd years, commencing 21-days prior to the commencement of term 1;

(c)on father's day from 9:00am until 5:00pm; and
(d)except as provided for at paragraph 13 should a public holiday fall on a day that the child is due to commence spending time with the father, such time shall commence at 9:00am, and should a public holiday fall on a day the child is due to cease spending time with the father, such time shall be extended until 5:00pm on that day.

9.Should mother's day fall on a day that the child is ordinarily in the care of the father, then the time that the child would ordinarily spend with the father shall be suspended from 9:00am until 5:00pm to enable the child to spend time with the mother.
10.Should father's day fall on a day that the child is ordinarily in the care of the mother, then the time that the child would ordinarily spend with the mother is suspended from 9:00am until 5:00pm.
11.Notwithstanding paragraphs 3, 5, 6 and 8(b), the child must spend time with the mother and father during Christmas as follows –
(a)in even numbered years:
(i)with the father from 12:00pm Christmas Eve until 12:00pm Boxing Day; and
(ii)with the mother from 12:00pm boxing day until 12:00pm on 27 December;

(b)in odd numbered years:
(i)with the mother from 12:00pm Christmas Eve until 12:00pm Boxing Day; and
(ii)with the father from 12:00pm Boxing Day until 12:00pm on 27 December.

12.Notwithstanding paragraphs 3, 5 and 6, the child must spend time with the parties during Easter as follows –
(a)in even numbered years –
(i)with the father from 5:00pm Easter Thursday until 12:00pm Easter Saturday; and
(ii)with the mother from 12:00pm Easter Saturday until 5:00pm Easter Monday;

(b)In odd numbered years:
(i)With the mother from 5:00pm Easter Thursday until 12:00pm Easter Saturday; and
(ii)With the father from 12:00pm Easter Saturday until 5:00pm Easter Monday.

13.Changeover must occur as follows –
(a)during times when the child is attending kindergarten or primary school, changeover shall occur at the kindergarten or primary school;
(b)during all other times, at the Petrol Station on the comer of E Street and F Street, Suburb G; and
(c)changeover may be attended by either the mother or father and/or a mutually agreed third-party including but not limited to:
(i)the father's partner Ms H;
(ii)the child's paternal grandmother, Ms J; and/or
(iii)the child's paternal great aunt, Ms L.

14.Whenever the child is in the father’s care the father must abstain from alcohol and drug use and the father must not permit the child to be in the presence of anyone deleteriously affected by alcohol or drug use.
15.Both parties keep the other informed of their current residential address, contact telephone number and email address.
16.The parties are restrained by way of injunction from relocating the child's current residence without prior written agreement or without further court order, and should the mother be required to change her current residence, that she is restrained by way of injunction from relocating to a distance further than 30 kilometres from the father's current residence.
17.The father is hereby permitted to attend at any time any day care centre or any other day care centre that the child attends including but not limited to days when the child is in attendance or on any other occasion that parents normally attend.
18.The parties are hereby authorised to attend at any time the school that the child attends including but not limited to days when the child is in attendance or on any other occasion that parents normally attend.
19.On or before 4:00pm on 28 February 2023, the parties must do all acts and things necessary and must sign all documents to cause the child's enrolment at M Childcare to be terminated with immediate effect.
20.Contemporaneous with paragraph 19, the parties must do all acts and things necessary and must sign all documents to enrol the child at a kindergarten as agreed between the parties, and failing agreement the parties shall do all acts and things necessary and sign all documents to attend mediation.
21.To give effect to paragraph 20, on or before 4:00pm on 14 February 2023 the parties must make all necessary enquiries with prospective kindergartens and must communicate their nominated selections to one another in writing.
22.The parties are restrained by way of injunction from causing the child to attend upon a medical practitioner or allied health profession that the child does not ordinarily attend save in case of an emergency.
23.The father must be permitted to list himself as an emergency contact with any treating medical practitioner, allied health profession, day care centre, school, and any other professional service that the child attends and this order must serve as authority for same and the father must be permitted to produce this order to any service should it be necessary to do so or should confirmation of this authority be requested by the service.
24.The parties must do all such acts and must sign all such documents necessary to ensure that the child always has a current Australian passport and United States of America passport and that this be undertaken at the parties' equal shared expense.
25.At all times when the child is not travelling overseas, the child's passports will be retained by the father or at such other place that may be agreed between the parties in writing and, if stored other than in the father's possession, must only be released with the joint written authorisation of both parties or by order of this Honourable Court.
26.The mother and father are permitted to take the child out of the Commonwealth of Australia during the long summer school holidays and on not more than one occasion every two years, subject to the following conditions –
(a)unless otherwise agreed in writing between the parties, the travelling parent must notify the other parent in writing and at least six weeks prior to the intended travel, of their intention to travel with the child and remove him from the Commonwealth of Australia;
(b)the travelling parent is not to travel with the child for a period exceeding three weeks and the non-travelling parent have commensurate make-up time in the same and/or immediately next school holiday period or periods;
(c)the travelling parent must provide the other parent with confirmed return airfares for the child and a detailed and final copy of all travel itineraries, such itinerary to include contact details and telephone numbers for all accommodation where the child will be staying and a working mobile telephone number, at least 30 days prior to the intended travel;
(d)for the purpose of paragraph 26(a) herein, the written notification from the travelling parent must include the proposed travel dates, including departure and return dates and all travel destinations for the child whilst the travelling parent and the child are out of the Commonwealth of Australia;
(e)the intended travelling parent must travel with the child at all times;
(f)the child must be registered with the Australia Government (Smart Traveller) or its successor/future equivalent for all intended destinations and the travelling parent must provide evidence of same to the other parent prior to such travel taking place;
(g)in the event of an emergency, the travelling parent must immediately, and no later than 60 minutes, notify the other parent by telephone of any emergency medical treatment required for the child, irrespective of the time zone and within 24 hours for any non-urgent medical treatment required for the child;
(h)for the purpose of paragraph 26(g) herein, the information to be provided includes and is not limited to the nature and cause of the medical emergency, the proposed treatment, the name and location of the medical facility and the treating medical practitioner;
(i)the travelling parent must ensure that they take with them, and administer as directed by a physician, all medications prescribed to the child;
(j)the non-travelling parent is at liberty to contact and communicate with the child via telephone, skype and/or facetime during the period of travel every third day for not less than 15 minutes at such times to be agreed within 7 days of receipt of the travelling parent providing full and final itineraries as required by paragraph 26(c) and failing agreement, as proposed by the non-travelling parent and the travelling parent must initiate such contact and that the travelling parent otherwise ensure that the child speak with the non-travelling parent at any time the child requests;
(k)the travelling parent must ensure that appropriate travel insurance is obtained, and that the child is covered pursuant to that policy, and evidence of same must be provided to the other parent at least 30 days prior to such travel;
(l)all international travel occur during the long summer school holiday periods with such travel not to impinge upon the child's attendance at school;
(m)the non-travelling parent's consent to the children's travel must be provided to the other parent, in writing, no later than 7 days after having been provided with the written notice issued by the travelling parent of their intention to travel with the children;
(n)the non-travelling parent must not unreasonably withhold their consent to the child travelling;
(o)the non-travelling parent is at liberty to revoke their consent for the child to travel if circumstances have arisen since the initial consent was provided and such circumstances pose a risk to the children's health, safety and wellbeing including travelling to countries where the Australian government's travel advice warnings have changed to include "Level 3: Reconsider Your Need To Travel" and "Level 4: Do Not Travel" advice or the equivalent advice as future described by the Australian Government from time to time.

27.Unless otherwise agreed in writing between the parties, both parties are hereby restrained by injunction from travelling with the child to any country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction as defined in Schedule 1 of the Family Law Act 1975 (Cth).
28.The mother and father will jointly engage an agreed parenting coordinator as agreed and in default of agreement that Ms N of P Lawyers is to be appointed as same, with the mother and father to be jointly responsible for meeting all associated costs and with the mother and father to comply with all reasonable directions of the appointed parenting co-ordinator.

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

These reasons concern a very young boy whose parents are locked in incessant conflict.
The mother is a citizen of the United States of America. She contends that she has no support in Australia. She now wishes to relocate to Q State where she says her family lives who will provide her with the support she says she needs. The father opposed her relocation application.
The father sought orders enlarging the time he presently enjoys with the child. The mother opposed his application.
A family consultant was opposed to the mother’s relocation application and was broadly supportive of the father’s application for the enlargement of the child’s time with him.
Allegations of family violence were made by the mother against the father. The mother also alleged that the father ingested drugs. The father alleged that the mother was determined to provide false evidence to the court in order to blacken the father’s character.
The enmity between the mother and the father is extreme. It is almost certain that the parties will return to court, despite these final orders. The ICL supported the father’s proposals.
The ICL did not support the mother’s relocation application.
As these reasons record, in my view –
(a)orders for the child’s relocation to the United States are not in his best interests; and
(b)orders enlarging the child’s time with the father are in child’s best interest.
RELEVANT FACTUAL SETTING
The child was born in 2018. He is four years of age. He has certain developmental issues which I narrate below.
The father is a labourer. The mother was not employed when this case was tried. She has previously worked in the beauty sector.
The mother and father met in 2017. The mother had earlier arrived in Australia on a working visa. She fell pregnant to the father soon thereafter. The father and mother married in late 2017. The child was born in 2018. The mother and father separated in late 2018. At the time they were living with the child in the father’s mother’s home during one of the pandemic lock‑downs. In late 2020 the mother and child were placed in crisis accommodation. The mother brought a proceeding in a local magistrates’ court seeking a family violence protection order. The father thereafter commenced this proceeding in (what was then) the Federal Circuit Court of Australia. Ultimately the proceeding was transferred from Division 2 of the Federal Circuit and Family Court of Australia to Division 1 of the court and I tried the case on the basis of its being of three days’ duration. That estimate was wildly erroneous. It ran for nine days.
Before addressing the competing issues of relocation as sought by the mother and for an enlargement of time as sought by the father (assuming relocation were to be refused) it is necessary to record certain factual matters bearing on aspects of this case.
THE FATHER

The father is 39 years of age. He lives in a suburb in Melbourne. He has re-partnered. He works as a labourer. The father was cross-examined at length by counsel for the mother as well as by counsel for the ICL.
Central to the mother’s case for the orders she sought was her fundamental belief and her evidence that the father is violent. The mother gave evidence that she did not feel safe in his presence and as a result she required changeovers to take place at a police station.
The factual issues giving rise to allegations of family violence are addressed below. An issue in the case emerged about the credibility of the father on the one hand and of the mother on the other hand. It was put against the father that his evidence of his recent drug taking was false and that the falsity of his evidence on that issue rendered unreliable his other evidence whenever such evidence conflicted with the evidence on the same point as was given by the mother or unless otherwise corroborated by independent evidence.
The father gave evidence in his trial affidavit that since a date in 2020 he had not ingested drugs. Hair follicle testing results revealed that his evidence in respect of his allegedly not taking drugs since 2020 was false. In his written final submissions, the father’s counsel characterised that state of affairs as misleading for which the father’s “credibility as a witness suffers”. That may be correct. But the broader issue was whether, having regard to that falsehood in the father’s evidence, the father was on all issues to be treated as a witness whose overall veracity was to be rejected. I do not so conclude. Instead, to my way of thinking, where the evidence of the father on a specific subject conflicted with the evidence on the same subject as given by the mother, I should seek independent corroboration of the evidence of both on that subject. In the absence of independent corroboration of a particular issue, proof to a Briginshaw[1] standard must be shown before I accept the evidence of either the mother or of the father on a particular subject where each gave a contradictory version of events.
[1] (1938) 60 CLR 336.
THE MOTHER
The mother gave evidence that she was of the view that while living in Australia she was without the familial support she needed. She gave evidence that she feared the father, mostly by reason of her conclusion that he was “passive aggressive”, a phrase used by her throughout her evidence. I told the mother that the characterisation of a person’s personality or behaviour as “passive aggressive” was unhelpful to me because any such characterisation was inherently subjective and devoid of objective substantiation or verification.
That said, the mother gave an illustration of characterising of the father’s personality as being “passive aggressive”. [2] She deposed as follows[3] –
23. After the changeover when we got home [X] and I were playing with his Cookie Monster puppet. While [X] was watching tv with me he showed Cookie Monster his mouth, Cookie Monster (the puppet operated by me) asked [X] what happened and he opened his mouth while pointing inside and said he got a “boo boo.” Cookie Monster then asked him “who did that?” and “how did it happen? at dadas?” [X] said “yeh” while nodding his head. Cookie Monster asked again how it happened and [X] got scared. He seemed frightened so Cookie Monster said that it’s ok [X] and he loves him and mommy, “you’re safe with us [X] we love you.” We then went to sleep and Cookie Monster was cuddling with [X]. [X] told Cookie Monster that he’s scared and had a worried look on his face. [X] started shaking and Cookie Monster said, “it’s ok [X], why are you scared?” [X] said, “dada scary.” Cookie Monster said, “it’s ok [X] I love you we’re safe here don’t worry.” [X] then fell asleep with Cookie Monster singing twinkle little star at 8pm. After [X] went to bed I made a call to Child Protection around 9pm, Child Protection recommended to me (after I told them what [X] has disclosed to me) that I “sleep on it.” I stayed up most of the night as I couldn’t sleep after what [X] disclosed to his “Cookie Monster” puppet. I was in fear that if I made a report [the father] would harm [X] further for disclosing abuse to me. I felt [the father] was also being intimidating and passive aggressive toward me during changeover and this made me concerned about what he would do to me. The police elected to not pursue the breach.
[2] Mothers affidavit sworn 23 June 2022.
[3] Ibid.
Throughout her cross-examination, the mother characterised the father’s behaviour as “passive aggressive”. Relevant exchanges included the following –
(a)in relation to a particular changeover, the audio recording[4] of which was played to court[5] –
[4] Audio recording exhibit marked as AE5.
[5] T200 L44 – T202 L39
MR WERNER – You are still asking the court to require [the father] to do changeovers as a police station, according to your amended response?---Yes.
MR WERNER – Yes. Why?---Because of how changeovers went in the past.
MR WERNER – Can you explain that better? Can you explain that in any further detail?---Yes.
MR WERNER – Please paint a picture for his Honour; what’s wrong with changeovers at the moment?---At this moment? At this moment?--- Well, what you don’t hear in the tapes is what you see, is what I have seen, which is passive-aggressive behaviour. So you can be heard saying one thing in a video but being doing something totally different, which is what I saw. You know, I saw [Ms J] on that day when I was going out of the police station with [X], taking him to the bathroom, she’s putting on a face of happiness, saying, “Mummy,” like that but she grabbed his hand and was being passive-aggressive. And I saw that with my own eyes and that is not the first time neither [the paternal grandmother] or [the father] has done that. And that scares me.
HIS HONOUR – I’m sorry, I’m not following this. You will have to tell me what your construct of “passive-aggressive” is because it means different things to different people and I’m not - - -?---Right.- - - sure that I follow it in the context that you’re describing it?---So
HIS HONOUR – This is obviously an important issue to you so please educate me on what you say about this issue?---Okay. So “passive-aggressive” to me is when you could be acting a certain way which – let’s say it’s happy but your body language is doing something negative or doing something totally different to how you’re acting.
HIS HONOUR – Okay. Well, translate that to the changeover that you’ve spoken about?---Pardon?
HIS HONOUR – Translate what you just said into the acts that you say represent passive-aggression at the changeover that you’ve just described?---Okay. [Ms J] had a happy look on her face and she was acting happy but, when she took [X’s] hand, it was aggressive and she proceeded to walk away from me without me even saying “bye”. And you can hear me saying, “I want to say goodbye to my son,” and I was running after them. And then, when she turned back and looked at me, you know, she was just laughing. And that – it doesn’t sound – or it didn’t happen like how it sounds on these tapes, not from what I saw.
HIS HONOUR –Thank you.
MR WERNER – 2 June ’21, I’m going to ask you about that changeover in more detail on another occasion. But can I ask you at this point; you were present in court when we played the audio on Tuesday, yes?---Yes.
MR WERNER – Do you want his Honour to conclude that [the father’s] behaviour was passive-aggressive that day?---I saw it to be passive-aggressive but it’s not a video. It’s only an audio recording. That doesn’t show the full story.
MR WERNER – So the answer is yes, you would say that his Honour should conclude that [the father] was passive-aggressive on that day?---I – I – honestly, I do not know what to say.
MR WERNER – [Ms Dale], with respect, you do know what to say, don’t you? You are asking his Honour to make – to draw conclusions, very nasty conclusions about the demeanour of my client at changeover. I’m asking you about a specific changeover which we’ve all heard the audio on. We’ve read your version on affidavit. We’ve read your version to the police. We’ve heard the audio. Are you accusing [the father] of being passive-aggressive on 2 June 2021; it’s a simple yes or no proposition?---Yes, he was.
MR WERNER – He was?---Yes, he was.
MR WERNER – And you want his Honour to conclude the same way?---Yes.
HIS HONOUR – But, [Ms Dale], this is important from my perspective, unless I see the demeanour that you described as passive-aggressive, how am I to make any assessment of whether your construction of those acts is accurate or not?---You won’t know if they’re accurate or not because there’s not a video.
HIS HONOUR – Exactly. So how am I to make an assessment of the correctness or otherwise of what you’re describing?---That’s why I had trouble answering him because how are you supposed to make a decision because you did not see - - -
HIS HONOUR – Exactly?--- - - - visually. Exactly?---Yes.
HIS HONOUR – And is it the case that two people might have different takes on the same manifestations of behaviour, one concluding it’s you’ve passive-aggressive and the others not?---I know what I saw, your Honour.
HIS HONOUR – No, no. But just answer my question. That’s conceivable, isn’t it?---Yes, yes.
MR WERNER – All right. So do I understand your evidence to be that you sense passive-aggressive behaviour at changeovers currently?---Yes, I saw passive-aggressive behaviour.
(b)in relation to the mother’s assertions that she felt safe[6] –
[6] T224 L1-5.
MR WERNER – All right. Okay. All right. Well, in order for you to feel safe, what specific changes or specific events might have to take place for that to occur?---Maybe [the father] recognising that he is passive aggressive and maybe to get counselling or some help. I would really love that, because it would be really great for [X]. He needs to see us working together, nice.
(c)in relation to the allegations Mr Dunlop made against the father in cross-examination[7] –
[7] T338 L29-35.
MR WERNER – Well, I will go back to what we were talking about before earlier this morning of all the allegations that – allegations and accusations that Mr Dunlop made to [the father] while he was in the witness box. Were there any of those allegations that you think should cause his Honour to feel that [the father] is the sort of man who’s capable of being violent even in a police station?---[X] – I mean, [the father] was passive aggressive in the police station.
(d)in relation to the father’s alleged passive aggressive attitude concerning the child[8] –
[8] T421 L11-15.
MR WERNER – What makes you think that [X] doesn’t feel safe with his father?---I don’t know how he feels. I can just comment.
All right. What makes you think that [the father] doesn’t feel safe when he’s conducting changeover with you?---Sometimes he acts passive aggressively.
(e)in relation to the subjective nature of perceived “passive aggressive” behaviour as put by the ICL –
MR ROBERTSON – Now, I will jump back a step. You’ve suggested a number of times in your evidence that …, [the father], is passive aggressive; okay? Now, you describe that, as I recall, as looks, the tone of his voice, things of that nature; is that right?---Yes.
MR ROBERTSON – Do you remember I said to you, at the start of cross-examination, that two people might have very different views on what behaviour looks like?---Yes.
MR ROBERTSON – Because you make quite a point, don’t you, of saying that [the father] needs to fix that; he needs to stop being passive aggressive? Yes?---Yes.
MR ROBERTSON – Do you concede he may not think he’s being passive aggressive?---He might think that. Sure.
MR ROBERTSON – But you say that this court should take it as fact that he is; is that right?---Yes, it – yes.
MR ROBERTSON – When you were asked how you could feel safer, what changes might be needed, you said [the father] would need to get counselling on being passive aggressive; do you remember that?---Yes.
MR ROBERTSON – Yes. Do you accept that that requires …, [the father], to come around to your way of thinking?---No.
MR ROBERTSON – Okay. He says he’s not passive aggressive, though, doesn’t he?---I believe so.
MR ROBERTSON – So if he’s right, what does he need the counselling for?---Because he’s passive aggressive.
MR ROBERTSON – No. That answer and the question don’t quite match. Do you understand? You say he’s passive aggressive. He says he’s not. If he’s right, what does he need the counselling for?---I do not know how to answer your question because he could think something and have his attitude be totally different. I have known him for a very long time and he hasn’t changed since the day I met him, and I believe it’s in [X’s] best interests for him to get help in that sense because that’s not good for [X].
Counsel for the father was strident in his criticisms of the mother. Mr Werner contended as follows –
(a)the mother had little capacity for objective recollection;
(b)she was prone to exaggeration, if not to hyperbole;
(c)the mother promoted to police her narrative that she adopted in her endeavour to blacken the father’s character;
(d)she provided different versions of the same event on separate occasions;
(e)she obfuscated repeatedly when giving her evidence;
(f)she failed to give direct and full answers to questions put in cross-examination;
(g)she was determined to give garrulous answers that best suited her narrative, irrespective of the question actually asked;
(h)in respect of the evidence of audio recordings of changeovers on 2 June 2021 and 11 February 2022, the mother refused to acknowledge that those events were calm and unremarkable and she instead endeavoured to inject an atmosphere of crisis into those changeovers;
(i)the manner in which her evidence-in-chief was given in her trial affidavit was “sloppy in its presentation”,[9] containing “the error in paragraph 22 (that was) as inexcusable as the practice that gave rise to it”;[10] and
(j)in the circumstance, the father was more reliable as a witness than was the mother.
[9] Paragraph 15(h) of the father’s counsel’s written final address dated 15 November 2022.
[10] Ibid.
Counsel for the father placed considerable emphasis on the fact that, aside from drug use, the father was not challenged on the evidence in his trial affidavits.[11] A careful examination of the transcript of the father’s cross-examination by counsel for the mother revealed that the father was cross-examined about a much circumscribed collection of issues, namely –
[11] Paragraph 16 of the father’s counsels written final address dated 15 November 2022.
(a)family violence;
(b)whether the father agreed with the mother’s assertions of family violence;
(c)his recording of changeovers since 2021;
(d)the father’s use of poor language when describing the mother such as “cunt” and “piece of shit”;
(e)whether the father engaged in coercive behaviour;
(f)whether the father’s threat to cut off the mother’s telephone use arose from his inability to pay for the phone not by reason of spite;
(g)whether the father respected the mother’s mother, holding the mother’s mother in high regard;
(h)in his communication with the family consultant the father denied the mother’s allegations of family violence;
(i)the father denied that during an incident in mid-2020 when he was cooking that he threw a mobile phone against a wall or that he yelled at the mother or at his own mother;
(j)the father denied smacking the child preferring the use of the word “tapped”;
(k)the incident during which the father “tapped” the child concerned the child potentially hurting himself by putting a hockey stick through a window;
(l)the father had not attended counselling other than a men’s behavioural change programme;
(m)how’s living with the mother after their separation during COVID was frustrating;
(n)the father maintained that he dropped his phone and he corrected his evidence where he said he threw his phone;
(o)he denied being violent to the mother although he admitted he was frustrated;
(p)the father denied smacking the child on the child’s buttocks with such force that the child was swept off his feet and he landed on his buttocks;
(q)the father resisted the idea of the child seeing a counsellor, therapist or psychologist on the premise that the child has been abused;
(r)the father was aware that the child sustained an injury in mid-2021 at the early learning centre the child attended;
(s)subsequently the father informed the early learning centre that the mother had made allegations against the father;
(t)a few months prior to the event at the early learning centre the mother sent the father a text message about the child having been bitten by another child at the centre;
(u)in mid-2021 the mother contacted the father about the mother’s concerns that the child had engaged in highly sexualised behaviour which, so the mother said, may have been learned behaviour, which the father said he “wanted to know what the hell was going on there” (his words); and
(v)the father took the view that the mother was accusing the father of sexual abuse of the child.
Counsel for the ICL cross-examined the father at some length. That seemed to me to have been a curious position to adopt, having regard to the ICL’s case outline and opening. In the ICL’s case outline, the ICL contended –
(a)the mother and father should have equal shared parental responsibility;
(b)if the mother were permitted to relocate to the USA, the ICL was concerned that the distance between the USA and Australia would adversely impact upon the father’s meaningful relationship with the child;
(c)the child should be protected from exposure to harm or family violence by either parent;
(d)permitting the child to relocate with the mother in the USA was likely to result in the child being deprived of the opportunity of continuing to spend regular ongoing substantial and significant time with the father in Melbourne;
(e)the child has been diagnosed with special needs;
(f)a major issue in this case is the anticipated practical difficulty and expense associated with the child spending substantial and significant time with the father if the mother is permitted to relocate to the USA with the child; and
(g)according to the family consultant the mother is deeply invested in her narrative as a survivor of family violence whereas the father has been present and active as a caregiver to the child since birth.
Those issues seemed to me to have been tolerably contained, not warranting extensive cross-examination.
In his cross-examination of the father, the ICL’s counsel pursued a collection of issues. They included –
(a)the father conceded he has a problem calling for drug and alcohol counselling;
(b)if he had his time over, the father would have sought help for drug use at about the time his son was born;
(c)one of the father’s friends from whom the father purchased drugs and who was a regular consistent drug user had been around the child once a month as a good family friend and the father would have no issue leaving his son in the care of that person if the father had to;
(d)the father drinks up to four glasses of wine on any given day;
(e)the father said he does not have a problem with anger;
(f)the father admitted that on one occasion he pushed the mother so as to create distance between the mother, the father and the child;
(g)he admitted that his actions were unacceptable;
(h)the father agreed that if relocation were ordered, the relationship between the father and the child will be irredeemably severed because the mother will not foster a meaningful relationship;
(i)the father took the view that the mother should be working when able to do so;
(j)communications between the father and the mother can be cordial;
(k)the area to which the mother wished to relocate is an hour and a half away from City R;
(l)the father’s relationship with the child is very strong;
(m)the father said the mother is a good mother;
(n)the father said the child’s relationship between the child and the father’s current partner was good as was the relationship between the child and the father’s mother;
(o)the father believes that the child will regress with his speech, in the same way he did when the father did not see the child for 50 days, at which time the child was near mute; and
(p)it would be financially difficult for the father to travel to the USA as he is financially unable to do so in the near future.
THE MOTHER’S CROSS-EXAMINATION

At the outset I record that I was not most impressed with the mother as a witness. I say that having watched and heard her giving evidence over several days. I also say that recognising that the mother has behavioural issues according to the psychologist Dr S. The benefits enjoyed by a trial judge in my shoes were highlighted by Kirby ACJ in Galea v Galea.[12] As I observed in Gerber & Beck[13] –
182.During the course of the trial I had the opportunity of carefully observing the father and the mother and their demeanour in the witness box especially. The mother and father were cross examined for a number of days. Consequently, I was able to observe not only what they said but how they said what each said. As the trial judge I enjoyed all the benefits to which Kirby ACJ averted in Galea v Galea. There, his Honour held that the advantages enjoyed by the trial judge were as follows –
a)hearing the evidence in its entirety;
b)hearing and seeing all evidence in context, chronologically and logically advanced;
c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)observing body language, sometimes important for interpreting communication.
[12] (1990) 19 NSWLR 263.
[13] [2020] FamCA 210
This case was properly described by counsel as a hard swearing-case. In such a case it is squarely within the function of the trial judge to form an assessment of the veracity of one or more witnesses.[14] One of the classic statements of the matters commonly taken into account when deciding whether a witness is telling the truth is the statement by Sir Richard Eggleston in his book Evidence, Proof and Probability,[15] where the following is recorded –
[14] Lovell v Lovell (1950) 81 CLR 513; In the Marriage of Scott (1994) 17 Fam LR 420.
[15] Sir Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2nd edition, 1983) 192-193.
What are the factors that a judge takes into account when deciding whether a witness is telling the truth? They may be listed as follows –
1)The inherent consistency of the story: if the evidence of the witness contains internal contradictions, it cannot be accepted as a whole. The question may be which part to reject.
2)Consistency with other witnesses: this, of course, involves making an assessment also of the other witnesses, which in turn requires consideration of the factors here set out in relation to those witnesses also.
3)Consistency with undisputed facts: these include documentary evidence (if not subject to attack), facts admitted by the parties, or matters of common knowledge or experience.
4)The ‘credit’ of the witness: in addition to the observation of his performance in the witness-box, this will include ... evidence of bias against a party; or evidence of a general reputation for mendacity.
5)Observation of the witness: this includes physical manifestations of truthfulness or mendacity, or of uncertainty, and also characteristics observable in the witness-box or capable of being tested there (hearing and eyesight, capacity to judge distance or height)
6) The inherent probability or improbability of the story.
A similar (but not identical) set of criteria was recorded by Gosnell J of the United Kingdom High Court in GH v The Catholic Child Welfare Society (Diocese of Middlesbrough)[16] where his Lordship held as follows –
[16] [2016] EWHC 3337.
In his instructive article entitled The Judge as Juror: The Judicial Determination of Factual Issues,[17] published in Current Legal Problems 38, Mr Justice Bingham (as he then was) made this observation –
“The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case –
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2)       the internal consistency of the witness’s evidence;
(3)       consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
[17] Thomas Bingham, ‘The Judge as Juror: the Judicial Determination of Factual Issues’ (1985) 38(1) Current Legal Problems.
(5)       the demeanour of the witness.”
In debate, I raised with all counsel the observations of the High Court in Kuhl v Zurich Financial Services Australia Ltd[18] in which the court essayed the obligations of a witness giving evidence from the witness box to tell the truth, the whole truth and nothing but the truth.
[18] (2011) 243 CLR 361 (at [62]).
In my view, the mother’s evidence was underpinned almost in its entirely by her desire to convey to the listener that –
(a)she was a victim of family violence perpetrated upon her by the father;
(b)on an ongoing basis she feared the father;
(c)her fear of the father was sufficiently well founded as to provide a proper and rational basis for her desire to leave Australia;
(d)her circumstances and those of the child were significantly better in City R; and
(e)in all the circumstances, relocating to City R was better for the mother and therefore for the child.
THE MOTHER’S PSYCHOLOGICAL STATUS
Evidence was given in this trial by the mother’s general practitioner and also by a clinical psychologist called as part of the mother’s case. The general practitioner was not required to give viva voce evidence and instead her affidavit made 23 June 2022 went into evidence unchallenged. In that affidavit, the mother’s general practitioner deposed to the following –
(a)he was a general practitioner for the child;
(b)he practiced at T Medical Centre;
(c)he was requested by the solicitors for the mother to prepare a report outlining his role in the child’s care; and
(d)he prepared a report dated 20 June 2022.
The mother’s clinical psychologist, Dr S, gave evidence that the mother suffers from attention deficit disorder and adjustment disorder. The psychologist’s report dated 20 June 2022 disclosed the following –
(a)due to past experiences the mother may have not been aware of the context and dynamics of family violence;
(b)the mother may have a low tolerance for the distress of others, particularly in reference to her son such that she was likely to respond hyper vigilant due to not being able to easily tolerate any suggestion that her son was at risk;
(c)the mother became concerned, isolated, and unhappy due to the dissolution of her relationship;
(d)the mother was likely to benefit from trauma-informed cognitive behavioural therapy; and
(e)the mother was likely to benefit from instruction regarding assertive communication.
Dr S was cross-examined. She gave evidence in answer to questions put to her in cross‑examination as follows –
(a)She received a letter of instruction sent by the mother’s solicitors by means of a “retainer” for the purpose of writing a report for the trial of this proceeding[19] as well as to assess the mother’s mental health;[20]
[19] T505 L5-11.
[20] T507 L27.
(b)she had direct prior contact with the mother before the letter of instruction was received to the effect that the mother sought to retain her “in an expert capacity”;[21]
[21] T506 L28-43.
(c)Dr S was not giving evidence as a single expert;[22]
[22] T505 L43.
(d)the use of serious violence and gender-based violence tends to be the focus of her work;[23]
[23] T511 L11-29.
(e)she based her findings on the mother’s perspective of events;[24]
[24] T513 L5.
(f)in reference to allegations of family violence she conceded that she did not have “the faintest idea what [the father’s] version of events is”;[25]
[25] T513 L14 – T516 L42.
(g)the transcript recorded the following exchange[26] –
[26] T519 L10 - T520 L12.
MR WERNER – If she provides you with a compelling narrative and you make a diagnosis based on that narrative, of necessity, you are accepting the narrative as reliable - - -?---Thank you - - -
Surely you can agree with that?---I should also clarify though, in relation to adjustment disorder, that that can be based on a perceptual event.
That’s not what you’ve worked on in this report though, I would suggest to you. You have assumed, by way of forming a clear view, the narrative that [the mother] gave you is accurate. It was compelling?---I believe that when [the mother] told me, and continues to tell me in more recent sessions, about the things that she witnessed in the home, I believe that she believes those things. I do not believe that she’s making those things up in terms of impression management.
Well, you’ve said she’s not paranoid?---Correct.
So if she’s not paranoid, then you’re assuming that there is some legitimate factual basis for it, surely?---Again, it’s a very technical, clinical answer, but there’s a big gap between reality perception and then paranoid or delusional content.
All right. You’ve formed a positive view, if I read it correctly, that [the mother’s] reported experiences are genuine. Paragraph 8.1.2. You’ve referred to paragraph 8.1.1 to the malicious reporting - - -?---Yes.
- - - as the DHS has described it - - -?---Yes.
- - - and you’ve gone on to say:
I hold a counter opinion for this position. Based on [the mother’s] outline, I perceived that [the mother] became concerned, isolated, unhappy due to the dissolving of the relationship and this dissolving of the relationship was due to a range of factors that included her experiencing reported violence and witnessing reported violence towards her son.
It’s as clear as a bell you have accepted her narrative, surely?---So when it says I hold a counter opinion, this is in reference to the causal inferences made through the DHHS reporting. So the causal inference made in that reporting, as I read it, was that [the mother] had made a decision to go back to the United States and then concocted this story in order to support her moving back to the United States. I hold a counter opinion to that, which is that the relationship dissolved. There was toxicity in that dissolution. That that was extremely distressing to [the mother] and that she has reported violence and also to both herself and her son, so that’s her reports and - - -
Do you believe that?---Do I believe [the mother]?
Do you believe her narrative of that being the victim of family violence?---I believe that [the mother] was not feeling safe in that home.
Could you answer my question responsively, please, [Ms S] – [Dr S], I beg your pardon. It’s a really simple possibility. Do you believe it’s true?---I do.
(h)Dr S diagnosed adjustment disorder;[27]
(i)Dr S agreed that the mother’s claim that the father’s mother could “corrupt the outcome of this court process” are “implausible” and “absolute nonsense”;[28] and
(j)with respect to the veracity of the mother’s complaints against the father, Dr S gave evidence as follows –
Would you agree me that, as a matter of life experience, it sometimes happens that people tell lies?---Yes, people tell lies.
Yes. And when a person tells a deliberate lie, I would suggest to you it’s inevitably because they perceive they would derive some advantage from doing so. They don’t do it for any other reason. Would you agree with that?---No, I wouldn’t agree with that.
Don’t agree with that. Okay. Would you accept that it’s perfectly possible that some of the allegations that [the mother] has made against [the father] are inaccurate factually?---Yes.
You accept that. Do you accept it’s perfectly possible that some of her complaints against [the father] are her own subjective interpretation of events which might not be objectively fair?---Yes.
[27] T520 L45-6.
[28] T522 L30-3.
THE EVIDENCE OF FAMILY VIOLENCE
Much of the mother’s case in this litigation was underpinned by her contention of there being actual family violence having been perpetrated by the father upon the mother. The mother gave evidence that she is fearful of the father. In final address counsel for the father correctly submitted that the definition of “family violence” in s 4AB of the Family Law Act does not require the fear held by the person asserting it to be objectively verifiable. In other words, he submitted that it is immaterial whether a person of more stoic disposition may not be fearful in the manner the person asserting fear is. The fear can be entirely subjective. In her trial affidavit the mother deposed to the father making her life a living hell, as she called it.
Having regard to the subjective nature of the fear asserted by the mother, I am required to proceed on the basis that the mother’s fear of the father is an established fact, which I do.
Other events were said by the mother to constitute family violence. One related to an allegation that the father threw his mobile telephone. The father disputed that he threw the mobile telephone. When cross-examined, the father said he dropped the mobile phone. The mother insisted that the father threw the mobile phone. The evidence on this issue was imprecise, at least as given by the mother. Three witnesses were capable of giving evidence on point, namely the mother, the father and the father’s mother. In search of evidence that is likely to be objective and uninfluenced by partisanship, I have carefully considered the evidence of the father’s mother on point. Self-evidently, the father’s mother is not wholly neutral, detached or objective for the simple reason that she is the father’s mother. That said, the mother’s counsel put in cross-examination to the father’s mother[29] that the father’s mother was “in a position where [she] can give evidence where no one else can” with which the witness agreed. The father’s mother said the following of the event concerning the alleged phone throwing –
WITNESS – [The father] was making a video. He was cooking. [the mother] and I were sitting at the table. I think we had – [X] was around. We were laughing. Every time he went to record we would laugh or [X] would make the thing and we were just laughing. And then after – [the father], “Shh, shh”, then we would stop and then, of course, [X] would do something, we would laugh again. And then he just threw – well, just pushed the phone down onto the bench, it hit the wall there -
MR DUNLOP – It hit the wall?---
Witness – It hit – just there on the very corner of the bench wall and he stormed off. And I said, “Well, you shouldn’t be making a video while we’re all sitting here laughing and talking.” He was annoyed and I think he left the – came out, grabbed his phone and left. And that was it.
MR DUNLOP – You stumbled when you used the word “threw” in your evidence a moment ago?---Well, you know, I don’t want to say he threw but he was annoyed.
MR DUNLOP – Why don’t you want to say he threw it?---Because he pushed it – well, threw it. Okay. There we go. He threw it. But not smashed it against the wall. He threw it. He got annoyed, threw his phone down on the bench, and went into his room, came back and obviously grabbed his phone and left.
[29] Transcript 5 October 2022 T 165 L 33.
The father denied throwing the phone against the wall,[30] although he used the word “throw” interchangeably with “push”. Even accepting that the father failed to meaningfully differentiate between pushing and throwing the mobile phone, on his own evidence he said he threw the phone. Dr S (who was not an eye witness to the event) gave evidence (in the nature of commentary) of the father raising the phone, recoiling it to his ear then propelling the phone in the way one might throw a tennis ball, for example. Equally, no one gave evidence that the father aimed at the mother or, for that matter, at his own mother when throwing the phone. I accept that the phone was propelled by the father and that it struck a wall at a corner where a wall adjoins a kitchen bench surface. However, on the evidence of the father’s mother the phone suffered no apparent damage, so it was open to infer that the force of the movement of the phone may well have been slight.
[30] Transcript 5 October 2022 T 98 L 17, 18, T 99 L 20, T 101, L 29.
Audio recordings of certain changeovers were admitted into evidence without objection. The changeovers recorded were conducted on 2 June 2021, 11 February 2022 and 11 September 2022. The recordings were useful in my assessment of the conduct of the father and mother. The mother gave evidence that the father’s behaviour at each, while being recorded, was very favourable. She endeavoured to portray that such favourable behaviour was uncharacteristic. On the father’s behalf, counsel submitted that those recordings revealed the positive nature of the child’s relationship with the father and the capacity of the child’s parents to conduct themselves in a cooperative and child-focussed manner. He also submitted that when the mother’s assertions about antipathy between the father and mother was compared to the recorded versions of changeovers, it was readily apparent that the mother falsely portrayed the actuality of the changeovers and that the mother thereby revealed her erroneous insistence in creating an impression of the father as the perpetrator of family violence. Mr Werner submitted that the mother’s general credibility was damaged when her version of events at those three changeovers was measured against the recorded version of events at those changeovers.
In my view, there is considerable merit in those submissions by Mr Werner.
In respect of the 2 June 2021 changeover, the mother deposed to the father being angry and agitated, the mother being terrified, the father hitting the child and the father putting the child in the car causing the child to strike his head and bruise his ribs.
Mr Werner pointed out in his final address that the father was not cross-examined about any aspect of that changeover. Mr Werner submitted that when the audio recording of that changeover was heard, it was a model changeover with both parents behaving civilly to one another, the father not behaving aggressively, the child seeming calm and happy and the mother being calm.
In respect of that changeover I am of the view that Mr Werner’s submissions are correct. I am unable to conclude that the mother was correct in asserting that there was evidence of anxiety, hostility and unpleasantness at that changeover. The best evidence available of events at that changeover was the audio file of the incident and it depicted a perfectly acceptable changeover, notwithstanding the mother’s assertions to the contrary. I agree with Mr Werner’s submissions at paragraph 88 of his written final address that on its proper construction, the evidence revealed a loving relationship between a young boy and his father in whose company the child was happy and confident. I do not accept the mother’s evidence of the events at that changeover.
The evidence of the changeover on 11 February 2022 conflicted, given by the parental grandmother on the one hand and by the mother on the other. An audio recording of the changeover was put in evidence as well.
The mother’s version of events was recorded at paragraph 105 of her trial affidavit. Relevantly paraphrased, the mother deposed to the father’s mother conducting the changeover and that the father’s mother abruptly used unnecessary force to cause the child to be parted from his mother, that the mother was vocal in her protest and that the father’s mother laughed at the mother. Conversely, when the father’s mother was cross-examined about the incident during which the paternal grandmother stated that her focus was on the child only at that changeover and for him to have a pleasant changeover, she agreed she was businesslike.

The audio recording of that changeover did not reveal anything out-of-the-ordinary. In fact, having heard the audio I take the view that the changeover was polite in all the circumstances. The changeover was brief during which very few words were exchanged between the mother and the father’s mother. The pitch of the mother’s voice was not raised nor did it reveal any urgency, trepidation or upset. My construct of the audio recording of the changeover was an event that was civil and polite. I detected no rudeness or derision in the behaviour of the mother or the father’s mother. The father’s mother was not questioned by counsel for the mother about the father’s mother laughing at the mother at that changeover. Nor was there any substance in the assertion that the father’s mother behaved aggressively towards the mother or that the father’s mother exhibited conduct toward the mother that could be described by the nebulous appellation “passive-aggressive” conduct. I do not accept the mother’s evidence that at the changeover on 11 February 2022 the atmosphere was one of hostility. To the contrary. In my view the changeover on 11 February 2022 was civil as between adults and pleasant for the child.
A more heart-rending set of circumstances prevailed in relation to the changeover on 11 September 2022. An audio recording of that event was admitted into evidence. The audio recorded the child in a state of distress. The audio lasted for 14 minutes or thereabouts. It depicted events after the child was delivered by the father to the mother. A fair encapsulation of events is that the child did not wish to leave his father. After the audio had played to the five minute mark or thereabouts, the child became noticeably different to his earlier behaviour, described by Mr Werner as the child “started grizzling”, and at the seven minute mark the child began crying which Mr Werner characterised as “crying uncontrollably”. When the child was inconsolable at the 14 minute mark, the father left. It was readily apparent that no amount of consoling by the father to that point was effective to calm the child, who was upset at the prospect of his father leaving. To my mind, that reaction highlighted that the child was closely attached to his father in whose company the child wanted to remain and who was upset at the reality that his father was leaving the child’s care. I did not detect any substance in the suggestion that the changeover was hostile or uncivil. If anything, the father displayed commendable patience and enthusiasm for the welfare of his child to make conspicuous efforts to placate his distraught son whose distress was occasioned by the prospect of a temporary separation from his father. I agree with Mr Werner’s submission that the recording of that changeover revealed the existence of a close bond between the father and the child and that the child wanted to be in the company of the father.
To the extent that any suggestion was made that the changeover on 11 September 2022 was acrimonious or punctuated by aggressive behaviour by the father, I do not accept any such submission. To the extent that the evidence at changeovers purportedly revealed the existence of family violence committed by the father, I reject that contention.
An interesting point emerged about an aspect of the definition of family violence, namely, the mother’s subjective state of fear as a constituent element of family violence. As has already been observed, the definition of family violence is met if the person alleging it is affected by fear, whether well founded or not and whether objectively maintainable or not. In other words, the person asserting the existence of family violence need not demonstrate that a reasonable person in her or his shoes would have been similarly adversely affected by the family violence alleged. It is sufficient, according to s 4AB of the Family Law Act, that the putative victim of family violence deposes to she or he being fearful of family violence. According to orthodox and conventional principles of statutory construction,[31] there being no incorporation of any reference to the fear being based on reasonable grounds, no scope exists to construe the “fear” mentioned in s 4AB as requiring evidence of anything but subjectively held fear.
[31] Commonwealth v Baume (1905) 2 CLR 405, Taylor v Public Service Board (1976) 137 CLR 208, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, South West Water Authority v Rumble’s [1985] AC 609, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,
The mother gave repeated evidence that she feared the father. Mr Warner submitted that based on the evidence before the court, no material risk existed of the father committing any act of family violence towards the mother or towards the child. The suggestion of there being a “material risk” was not explored in final addresses. For that matter, Mr Werner did not take me through the authorities on material risk in the context of family violence beyond generally relying on my decision in Gerber & Beck.[32] But irrespective of the characterisation of “material risk” as opposed to “any risk” or simply “risk”, to my mind more important and utile evidence emerged from the mother’s own responses to questions from me. The following is a distillation of some key responses from the mother –
(a)if permitted to relocate, and while in the USA, if the mother took the view that the father was under the influence of alcohol or drugs, she would not allow the father to spend time with the child;[33] and
(b)if permitted to relocate, and while in the USA, if the mother suspected the father to be under the influence of alcohol or drugs but she did not positively know the true position, she would talk to the father “and see what’s going on”.[34]
[32] [2020] FamCA 210.
[33] T 445 L 31-34.
[34] T 445 L 36-42.
To my mind, in the first hypothetical illustration set out above the mother would be acting appropriately protectively and in the second hypothetical illustration set out above, the mother revealed an approach that was likewise appropriate yet not fearful. Rather than forming an adverse conclusion about the father based on unsubstantiated suspicion of his possibly being affected by alcohol or drugs, the mother said directly to me (and not to counsel) that she would investigate “what’s going on”. That did not reveal any manifestation of fear.
In further answer to questions from me, the mother explained what she meant about feeling safe. Her evidence was as follows[35] –
[35] T 446 L 24- L47 and T 447 L1-L28.
HIS HONOUR – Okay. You answered a question about changeovers at police stations, and the take I picked up on is to the effect that it will stop once you feel safe; do you remembering answering questions along those lines?---Yes.
To feel safe means different things to different people and different people use the word “safe” in a variety of contexts. What does safe mean to you in the context that you’re answering that question?---Safe means that [the father] treats me with respect and – you know, so I don’t have to go to changeover on the edge thinking how am I going to act today? Am I going to back off a little bit, or am I going to be able to talk to him? I want to be able to go to changeover and – and just be normal and – and not have to be so apprehensive of – and thinking - - -
HIS HONOUR – But these are subjective states of mind within your control, and what I’m trying to understand is how can he have a bearing on your subjective hypersensitivity, perhaps, or your state of upset or anxiety on the day, if that be the case? What can you tell me about that?---I – I come to changeover quite normal. I – you know, they – they haven’t been really terrible lately, but there’s always something that goes on or that has went on that does scare me that I believe I just – it’s in [X’s] best interests to keep on meeting at the police station. [X] really likes going to the police station, to be honest.
HIS HONOUR – There will come a time where he may very well become suspicious of being at a police station because attending a police station sends a message to most people. Does it ever cross your mind that you could achieve the same security measure, for example, in a place that provides closed-circuit TV, but not with the threat of law enforcement?---I never looked at it as a threat of law enforcement because I always felt really comfortable around police and - - -
HIS HONOUR – You did, did you say?---Yes. I feel really comfortable.
HIS HONOUR – But we’re focusing on the best interests of your child, not you?---Yes, but [X] likes going there, and he learns a great deal from – like, he – he says he wants to be a police officer when he grows up. So we will go there, and we look at the car, and I will say, “Look at the wheels.” You know, we point out the colours and – you know, he goes in, and they turn on the lights for the car. Like, he really likes it.
HIS HONOUR – All right. Have you answered all that you want to say to that question?---I’m sorry?
HIS HONOUR – Have you answered all that you want to say in response to my question?---I hope to get to a point where I feel safe not meeting in a police station. I believe that if it – if it does come to a point where, you know, [X] is realising, like you say, that – you know, why am I at a police station, I believe it – it could be changed, because, you know, that’s more important. You know, I don’t want him to think that, you know, we’re meeting at a police station because mummy and daddy can’t get along. I think that we should meet wherever, you know, [X] is comfortable.
HIS HONOUR – Do you have a timeline for when you might cease changeovers at a police station?---Whenever our relationship – me and [the father’s] relationship – takes a turn for the better.
HIS HONOUR – And, again, do you have a timeline for that?---A timeline? It would have to – I don’t have a timeline.
No timeline has been contemplated by the mother for when changeovers at police stations will cease. Based on the mother’s evidence, that will only change when she feels safe. According to the mother,[36] safe means the father “treats me with respect and you know, so I don’t have to go to changeover on the edge thinking how am I going to act today?”. She added “am I going to back off a little bit or am I going to be able to talk to him?”. She said she wanted to go to changeovers not being so apprehensive. She gave evidence that changeovers had not been “really terrible lately” (her words) “ but there’s always something that goes on or that has went on (sic) that does scare me that I believe … it’s in [the child’s] best interests to keep on meeting at the police station. [The child] really likes going to the police station, to be honest” (the mother’s words).
[36] T 446 L 30.
Several things must be said of that passage. First, the mother conceded that changeovers had not been “really terrible lately”. That seemed to indicate that to her way of thinking changeovers had been less arduous for her of recent times. To better understand how and in what way changeovers had to her way of thinking been less arduous for her required an understanding on a comparative basis of changeovers prior to her statement and how changeovers were for her when she gave evidence in the witness box. So far as changeovers that preceded those that were the subject of her evidence given on 14 November 2022 were concerned, Mr Werner established that the contentious ones described above were not properly characterised in the way the mother did. Second, the mother deposed to events at changeover that scared her yet she gave no factual basis for her sensing fear and instead merely repeated a form of mantra that she feared the father. I was not much impressed with the mother’s broad, non-specific, imprecise and to my way of thinking unhelpful evidence by her asserting, bereft of particulars, that she felt fear. Her imprecision on the subject, no matter how heartfelt she may have believed what she said, gave no content to her assertions of feeling fear and therefore told me next to nothing about the acts, facts, circumstances, omissions and things on which she relied of the matters that were said to ground her fear. Of course I accept that she may have felt fear. But without knowing on what that was based, it was near impossible to set in motion any form of corrective measures. Insofar as the mother stated that she was fearful from the father’s passive aggressive behaviour, without her giving details of the father’s behaviour that she construed as being passive aggressive, it was near impossible for me to make orders that met her fear.
In saying that, I accept that all forms of family violence call for immediate denunciation and that this court bears a heavy burden to ensure that such is done. But this court can only set its face against conduct that is capable of identification. Saying that a person senses fear, without more, does little to enable this court to carve out remedial measures to address her contentions.
Mr Werner contended that the family violence alleged in this case fell into the class of lesser significant cases and that only one incident of the family violence alleged took place post‑separation. He said the family violence alleged in this case fell into five distinct groups, namely–
(a)the father used derogatory language when communicating with the mother;
(b)at the age of 18 months, the child was hit on the hand by the father;
(c)the father threatened to cancel the mother’s mobile telephone contract;
(d)the father threw his mobile telephone against a wall while he was making a cooking video; and
(e)the father surreptitiously audio recorded changeovers.
The derogatory language, recorded in exhibits W1 and W2, was poor yet it seemed to be of a nature commonly heard, even from the mouths of children on public transport. That said, one might expect that persons in an intimate domestic relationship would refrain from the use of such bad language. So far as his tapping the child’s hand by way of discipline was concerned, I am persuaded that the event was a single incident that arose out of a potential danger to the child and that the mother’s evidence about the incident did not adequately recognise the potential danger to the child that the father’s conduct arrested. So far as the threat to cancel the mother’s mobile telephone contract was concerned, it seemed to be that the mother’s sense of isolation in Australia was significant and anything that impaired her ability to connect with her family overseas assumed very considerable if not disproportionate importance to the mother. To my mind, this incident was incorrectly characterised as an episode of family violence. The episode about the father throwing the mobile telephone has already been addressed above as has the evidence about the audio recordings of the changeovers. I agree with Mr Werner in his submissions that even taken at its highest, the allegations of family violence are (to use Mr Werner’s words) “at the lower end of the scale”. Further, certain of the issues the mother said represented family violence were not the subject of complaint by the mother to police or relevant government bodies. It must not be overlooked that subsequent to the expiration in mid-2022 of the intervention order obtained by the mother, she made no application to renew or extend the order. Mr Werner submitted that in those circumstances I should conclude that the mother’s failure to apply to renew the intervention order was her acceptance that no basis existed to do so. To my mind, that submission has considerable merit.
Weighing the totality of the mother’s evidence about family violence, I take the view that it was imprecise and unsatisfactorily vague, given by a person accustomed to embellishing, and given by a person who was determined to advocate for the cause of family violence. I take the view that the mother saw herself as a victim of family violence. She lived in a refuge and sought friendship from other persons who were like minded. In those circumstances it became necessary for me to carefully scrutinize her evidence of family violence. Having done that I am not persuaded that the mother’s evidence was to be accepted without independent corroboration in the manner stated above.
THE RELOCATION APPLICATION
It has been observed many times in the case law,[37] a relocation application involves considerations pertaining to a parenting order. The touchstone for the making of a parenting order of which a relocation order is a species is determined by whether the making of that order is in the best interests of the child. As I held in Gerber & Beck,[38] it is erroneous to approach a relocation application by preferring the wishes of one parent over the best interest of the child.
[37] AMS & AIF (1999) 199 CLR 160, M v S (2006) 37 Fam LR 32, Morgan v Miles (2007) 38 Fam LR 275 and Taylor v Barker (2007) 37 Fam LR 461 to name but a few.
[38] [2020] FamCA 210.
The mother supported her application for the relocation order by advancing a collection of propositions she said promoted the best interests of the child. Chief among those was her contention that in the destination to which the mother wishes to relocate was a support network the child does not presently enjoy in Australia. The mother deposed to there being the mother’s mother in the USA, the mother’s mother’s husband, certain medical practitioners and the possibility of a school that the child may attend. The mother gave evidence that her emotional fabric would be enhanced by her leaving Australia, a place where she said she feels isolated, and returning with the child to the USA. The mother gave evidence that she hopes to improve her vocational qualification. The mother was cross-examined on the practical effect of an order being made for her relocation with the child to the USA. She said –
(a)being in Australia was the hardest thing she had done in her life;[39]
(b)in the place to which she wishes to relocate the child would go snow boarding, build snowmen and snow angels and the child could play ice hockey with his father when the father visited;[40]
(c)by being near the mother’s mother, the mother will be near her best friend;[41]
(d)the child will have a much larger house;[42]
(e)the neighbourhood is very safe;[43]
(f)conversely, the apartment where the child presently lives is very small;[44]
(g)if relocation were permitted, the male role model for the child would be the mother’s father;[45]
(h)relocation would be a great experience for the child;[46] and
(i)if relocation were ordered the mother would have financial support.[47]
[39] T 196.
[40] T 256 37.
[41] T 195.
[42] T 448.
[43] T 448.
[44] T 454.
[45] T 277.
[46] T 420.
[47] T 424.
The mother conceded that if relocation were ordered, the father would need to find the money to pay for flights to the country to which the relocation relates.[48] She conceded that the father would be required to fly internationally on a regular basis although she said she was unsure whether he could afford that.[49] She conceded that it was more important for the child to have a physical face-to-face relationship with his father than it was for the child to have a physical face-to-face relationship with the mother’s family.[50] The mother said her cousin, an allied health worker, will help the child if relocation were permitted. After initially stating that the mother’s cousin had not previously met the child, the mother corrected her evidence by stating that the child had met the mother’s cousin when the child was a little over a year old.[51]
[48] T 246.
[49] T 425.
[50] Ibid.
[51] T 431.

On behalf of the father, Mr Werner acknowledged the mother’s capacity to provide for the child’s physical needs. However Mr Werner submitted that the mother displayed limited capacity to provide for the child’s emotional needs in view of her adverse comments about the father to the police, to DFFH, to the family consultant and in her evidence. Mr Werner submitted that the mother unilaterally excluded the father from the child’s education, as has been narrated already, revealing that her capacity to provide for the child’s emotional needs was compromised. I agree.
The audio recording of the changeover described above which the child found difficult demonstrated the father’s caring manner and his capacity to provide for the child’s emotional needs.
So far as the capacity of the parents to provide for the child’s intellectual needs, little evidence was adduced on point. Neither parent has tertiary education and I was informed very little of the secondary education either. I was unable to reach any conclusion about the parents’ capacity to provide for the child’s intellectual needs.
Mr Werner went further in his criticisms of the mother under the rubric of s 60CC(3)(f) considerations. He submitted that –
(a)the mother was willing to use the child as a tool to assist her in building her case against the father;
(b)the mother’s conduct was appalling in her taking the child to the emergency department of CC Hospital on the strength of nothing more than the child telling the mother that the child wanted to see a doctor;
(c)likewise the mother’s conduct was appalling in the mother permitting the family violence counsellor to question the child about what the father had done to the child;
(d)I should find that the mother’s conduct described in this paragraph was directed to eliciting from the child’s mouth words the mother felt fitted her narrative that the father was mistreating the child;
(e)I should also find that the mother wants the child to grow up in the belief that the child has been mistreated by the father;
(f)the child is not frightened by the father; and
(g)if relocation were ordered, the child’s relationship with the father will come to an end.
Not all of those contentions call for findings of fact, and certainty not under the rubric of s 60CC(3)(f). That said, I am persuaded that the mother’s capacity to provide for the emotional needs of the child insofar as those emotional needs involve interaction between the child and his father is impaired.
Section 60CC(3)(g) invited consideration of maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other characteristic the court considered relevant.
Mr Dunlop submitted that the father is an Australian citizen whereas the mother and the child have dual citizenships with Australia and the country to which the mother wishes to relocate. No submissions were addressed on behalf of the father in respect of this subsection.
Section 60CC(3)(h) was not relevant.
Section 60CC(3)(i) invited consideration of the attitude to the child and to the responsibilities of parenthood demonstrated by each parent. The father made no submissions on point. Mr Dunlop on behalf of the mother submitted that the father has a history of drug use and intake of excess alcohol.
To my way of thinking, each parent was focused on the child, albeit in different ways. The mother was obsessively behaved towards the child, for example driving the child to the hospital when the child said he wanted to see a doctor or accepting without reservation that the child had inserted his finger in his own anus while bathing in the company of the mother or the mother sleeping with the child even though the child had his own bed. Yet she has also taken the child to all relevant health professionals. Insofar as the latter point was concerned, she demonstrated diligence in her responsibilities of parenthood. On the other hand, I find it concerning that the mother was immovable in her commitment to a group of persons who regarded themselves as survivors of family violence and that the mother ensured that the child regularly attended get-togethers of those persons. I entertain serious fears that the mother will raise the child in the belief that the mother is a survivor of family violence and that the child is likely to be saturated in the mother’s retelling of her perceptions – real or apparent – about family violence. It is also significant, in my view, that one of the mother’s stated reasons for seeking relocation was because living in Australia, so she said, was the hardest thing she had ever done. To my mind, that revealed that she was keenest to promote her personal happiness ahead of the best interests of the child. That showed a particular attitude to her responsibilities of parenthood.
Sections 60CC(3)(j) and (k) invited a consideration of any family violence including whether any family violence order (as defined) applied. Counsel for the mother submitted in general and non-specific terms that “there is a significant history of family violence involving coercive and controlling behaviour, verbal and physical abuse”. He also submitted that an intervention order was made by consent without admission.
Rather than addressing allegations of family violence in the specific context of ss 60CC(3)(j) and (k), Mr Werner devoted significant aspects of his written submissions to allegations of family violence alleged against his client. The more important matters raised in those submissions were as follows –
(a)in late 2020, when the father and mother finally separated, the mother disappeared (Mr Werner’s words) from the father’s mother’s home, taking the child with her, taking up crisis accommodation made available by a family violence support service, and without adequate explanation;
(b)the mother made no complaint to any authority about any alleged act of family violence by the father subsequent to final separation;
(c)the mother told Ms AA as well as police together with DFFH and the family report writer that the father was capable of killing his own son;
(d)the evidence did not remotely approximate verifying that the father was capable of killing his son;
(e)the mother reported to the triage nurse at CC Hospital that the “father has done something to [the child] as [the child] had been behaving differently today”;
(f)the triage nurse recorded the mother’s description of events which amounted to the child exhibiting escalating sexualised behaviour;
(g)on 16 November 2021 the mother told Ms AA that she (the mother) was going to show him it is not okay to keep getting abused; and
(h)no allegation of family violence by the mother was substantiated and, according to Mr Werner, was “abject nonsense”.
Mr Werner acknowledged that the mother applied for an intervention order against the father in late 2020. He argued that the particulars of family violence were imprecise and unhelpful. An ex parte order was obtained. Mr Werner submitted that no inference could be drawn from the order in view of the fact that it was obtained ex parte.
In the circumstance, I take the view that the allegations made by the mother about family violence remained little more than allegations.
Since the decision in Isles v Nelissen[84], a distinction has been drawn in relation to unacceptable risk of child abuse between fact finding and risk assessment. The court there held that the assessment of risk is a predictive exercise. But neither counsel argued the applicability of that decision so I shall take the analysis no further.
[84] (2022) 65 Fam LR 288.
However, in any analysis of family violence, s 60CC(3)(j) and (k) required an examination of “any family violence” as well as whether a family violence order applies. So far as subsection 60 CC(3)(J) was concerned, I was required to consider “any family violence”, irrespective of any order about it. On the facts of this case I was not persuaded that any had been established in the manner asserted by the mother. Specifically, I was not persuaded on the balance of probabilities that the issues asserted by the mother as amounting to family violence, as defined, had been established on the balance of probabilities. That included any activity that led to the mother driving the child to the emergency department of the CC Hospital, or the factual substratum that precipitated the mother’s assertion to Ms AA, DFFH, police and the family report writer that the father was capable of killing his son.
There remained the episode during which the father conceded he threw a mobile telephone, hitting a wall of a kitchen bench top. The device did not strike any person. Very little in the way of forensically probative evidence was adduced about the incident. However, no witness stated that the father propelled the phone intending it to strike another. For that matter, whether the phone was thrown or pushed occupied some little time in the evidence. To my mind, there is considerable force in Mr Werner’s submission that the child remains relaxed and happy in the care of the father and that the child is not frightened by the father nor is the child afraid of his father. It is significant that neither the police nor DFFH had been contacted with a complaint from the mother against the father on account of family violence subsequent to final separation.
Section 60CC(3)(l) invited consideration of whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. This subsection in the context of the mother’s relocation application is targeted to the enquiry whether the making of the relocation order would lead to the escalation or contraction in further litigation between the mother and father.
If relocation were ordered, the father’s prospects of having any ongoing day-to-day insight into the child’s development will be limited to information gleaned by the father from electronic interaction, unless the father can travel to the relocation destination and see the child face‑to‑face. If relocation is permitted, it is likely that this court’s ongoing role in the life of the child will be very much diminished.
For the purposes of s 60CC(3)(m), entitled “any other relevant fact or circumstance”, Mr Dunlop submitted that the mother intends to register in the relocation destination any order permitting the child’s relocation so that those orders “are binding on the parties” (his words).
Several things must be said about that contention. First, no evidence was adduced before me about whether the laws of the relocation destination permit registration of orders of this court thereby rendering those orders binding on the parties in the relocation destination. Orders made by this court bind parties in personam without the additional need for registration of those orders in a foreign jurisdiction, assuming such a facility exists and in this case, no evidence on point was given.
Second, the highest Mr Dunlop’s submission gets is the mother’s expression of intention to register any orders. That does not amount to an undertaking to do this, even assuming I was persuaded that some utility were to be gained by registration.
Third, even if the relocation destination’s legal system permitted registration of orders made by me and even if by force of registration those registered orders were binging on the parties in the jurisdiction of the relocation destination, there is nothing in the mother’s statement that she intends to seek registration of the orders or that she will abide by them.
As has been already mentioned, I entertain no sense of assurance that the mother will be diligent in facilitating the father to have a meaningful relationship with the child if relocation were permitted. I do not accept the mother at her word when she said she will facilitate a meaningful relationship between the child and the father if a relocation order were made. So deeply embedded is the mother’s distrust of and dislike for the father that she is most unlikely to discharge her obligations under orders for the child’s time with the father if relocation were permitted.
Lest it be later said that I did not take into account the totality of the evidence on best interests, it is necessary to make certain observations about the evidence of Ms B, social worker and child court expert, who gave evidence that in her view the child’s best interests were promoted by the child remaining in Australia. She said that if the child relocated a negative impact would be occasioned in the relationship between the father and the child. She said a parent needs to spend substantial time and be in regular and frequent contact with a child of this child’s age so as to maintain, nurture and build a relationship that is going to be meaningful. Ms B gave evidence that the mother will not promote the child having a meaningful relationship with the father.
It is necessary to return in part to the evidence of Dr S. She gave evidence that if the child relocated, it would seriously truncate his relationship with his father.[85] Dr S also gave evidence that the mother suffered from adjustment disorder but not post-traumatic stress disorder. Dr S said the mother had a strong sense of reality but that it was “absolutely implausible” (Dr S’s words) for the mother to suggest, as the mother suggested, that the father’s mother had the power to corrupt the outcome of this litigation.
[85] T508 L16.
In answer to questions put to her in cross-examination by Mr Werner, Dr S conceded that some allegations against the father by the mother were factually inaccurate.
Dr S was unwilling to concede that certain information on which Dr S expressed her opinion, as given by the mother to Dr S, was a “tissue of lies” as Mr Werner called it or was “maliciously untrue”, as Mr Werner also described it. The information about which Mr Werner was questioning Dr S for the most part related to the mother’s complaints against the father. Dr S agreed that some of the mother’s complaints were premised on the mother’s own subjective interpretation of events which subjective interpretation may not been objectively fair. Dr S conceded the possibility that the information the mother gave Dr S about the father was lies. Dr S conceded that if I ultimately took the view the version of events at a changeover that was audio recorded and put in evidence was wrong, Dr S would alter her professional opinion of the mother. Dr S then changed her evidence in answer to questions from me seeking clarification.[86] Dr S eventually stated that the mother and Dr S had 11 sessions over which Dr S formed the opinion that the mother’s presentation was consistent with a person who had suffered trauma and that the mother was experiencing adjustment disorder, that the mother was traumatised and stressed and that Dr S would not be dissuaded out of that opinion by pieces of information being incorrect.
[86] T 525-526.
I accept that Dr S was capable of expressing an opinion about a psychological matter, having regard to her specific educational training and study in the field in which she proffered such an opinion.[87]
[87] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Honeysett v The Queen (2014) 253 CLR 122.
However, to the extent that her opinion about the psychological condition of the mother was based on factual information as given by the mother to Dr S, if the information as given by the mother was factually wrong, exaggerated, or embellished, the opinion of Dr S was at risk of being unreliable commensurate with the inaccuracy of the information the mother gave Dr S. While Dr S refused to agree with Mr Werner’s terminology that the mother gave Dr S information in some instances that was a “tissue of lies” or “malicious lies”, nevertheless Dr S should have recognised that her opinion may have been on a shaky foundation if the information the mother gave was wrong in a material respect. Dr S refused to concede as much. To my way of thinking, that refusal rendered Dr S’s opinion less reliable than it would have been had Dr S been prepared to make that concession. In saying that, I accept the diagnosis given by Dr S that the mother experiences adjustment disorder. Yet I place little weight on Dr S’s attribution of a cause of that adjustment disorder because Dr S failed to recognise that if the information she was given was wrong, her overall thesis may also be wrong.
It must not be overlooked that Mr Werner closely cross-examined Dr S about Dr S’s acceptance of the information the mother gave Dr S. The following exchange was highly enlightening –
MR WERNER – If she provides you with a compelling narrative and you make a diagnosis based on that narrative, of necessity, you are accepting the narrative as reliable - - -?---Thank you - - -
MR WERNER – Surely you can agree with that?---I should also clarify though, in relation to adjustment disorder, that that can be based on a perceptual event.
MR WERNER – That’s not what you’ve worked on in this report though, I would suggest to you. You have assumed, by way of forming a clear view, the narrative that [Ms Dale] gave you is accurate. It was compelling?---I believe that when [Ms Dale] told me, and 20 continues to tell me in more recent sessions, about the things that she witnessed in the home, I believe that she believes those things. I do not believe that she’s making those things up in terms of impression management.
MR WERNER – Well, you’ve said she’s not paranoid?---Correct.
MR WERNER – So if she’s not paranoid, then you’re assuming that there is some legitimate factual basis for it, surely?---Again, it’s a very technical, clinical answer, but there’s a big gap between reality perception and then paranoid or delusional content.
MR WERNER – All right. You’ve formed a positive view, if I read it correctly, that [Ms Dale’s] reported experiences are genuine. Paragraph 8.1.2. You’ve referred to paragraph 8.1.1 to the malicious reporting - - -?---Yes.
MR WERNER – as the DHS has described it - - -?---Yes.
MR WERNER – and you’ve gone on to say:
I hold a counter opinion for this position. Based on [the mother’s] outline, I perceived that [the mother] became concerned, isolated, unhappy due to the dissolving of the relationship and this dissolving of the relationship was due to a range of factors that included her experiencing reported violence and witnessing reported violence towards her son.
It’s as clear as a bell you have accepted her narrative, surely?---So when it says I hold a counter opinion, this is in reference to the causal inferences made through the DHHS reporting. So the causal inference made in that reporting, as I read it, was that [Ms Dale] had made a decision to go back to the United States and then concocted this story in order to support her moving back to the United States. I hold a counter opinion to that, which is that the relationship dissolved. There was toxicity in that dissolution. That that was extremely distressing to [the mother] and that she has reported violence and also to both herself and her son, so that’s her reports and - - -
MR WERNER – Do you believe that?---Do I believe [the mother]?
MR WERNER – Do you believe her narrative of that being the victim of family violence?---I believe that [the mother] was not feeling safe in that home.
MR WERNER – Could you answer my question responsively, please, [Ms S] – [Dr S], I beg your pardon. It’s a really simple possibility. Do you believe it’s true?---I do.
Dr S accepted the mother’s narrative of the existence of family violence. Dr S said she believes that narrative to be true. If that narrative turned out to be untrue in a material respect, the veracity of Dr S’s opinion necessarily diminished.

I found Dr S’s evidence to be of very limited utility. She accepted unreservedly the mother’s narration of the background. I have real doubt whether the mother was truthful in her statements of factual matters to the psychologist. It follows that the psychologist’s analysis was commensurately impaired.
CONSIDERATION OF THE MOTHER’S RELOCATION APPLICATION
As has already been recorded, the mother’s relocation application must be refused. In my judgment –
(a)the mother’s desire for her to be near her own family must be subordinated to the best interests of the child;
(b)if the child relocates, his face-to-face time with his father will be severely circumscribed and any interaction between the child and the father will in all practical terms be reduced to time by electronic means;
(c)the child’s schooling in the relocation destination has not been seriously considered by the mother;
(d)the practical and financial obstacles that would need to be overcome by the father in regularly visiting the child in the relocation destination are enormous;
(e)if relocation were permitted the child would be effectively denied a meaningful relationship with his father;
(f)the father and the child presently enjoy a very favourable loving relationship that will likely be damaged by the proposed relocation;
(g)if relocation is permitted, I entertain little to no confidence that the mother will facilitate time for the child with the father if she formed the opinion, howsoever unreasonably, that the father may be or had been affected by alcohol or drugs;
(h)such medical assistance as the child requires has not been arranged in the relocation destination;
(i)the proposed male influence for the child in the relocation destination is the mother’s father, a person one generation senior to the child’s actual father; and
(j)the benefits articulated by the mother in any proposed relocation were superficially attractive only, such as a larger home in which the child could live, an outdoor lifestyle, ice hockey and playing in the snow in winter.
It was readily apparent to me that the mother’s real motivation in seeking a relocation order was not based on the best interests of the child but rather it was based on her personal wishes to be nearer her relatives. In a parenting case, of which this is one, the court’s primary duty is to create orders that most suitably promote the best interests of the child, not the personal wishes of one parent of the child. In refusing the mother’s relocation application, I recognise that the mother is at risk of an adverse reaction which could result in her behaviour altering negatively towards the child. Any such issue can be addressed if and when it emerges. It may not.
THE FATHER’S TIME ENLARGEMENT APPLICATION
Having refused the mother’s relocation application, the next issue, logically as well as chronologically, is the application by the father for an enlargement of the time he presently enjoys with the child.
Equal shared parental responsibility is agreed. Section 65DAA of the Family Law Act became engaged. The effect of the applicability of s 65DAA(1) is that I am required to consider whether the child spending equal time with both parents is –
(a)in the child’s best interests; and
(b)reasonably practicable.
In Richter v Richter[88] I examined the legal issues with which a court must grapple in any consideration of each parent’s time with the child consequent upon an order being made for equal shared parental responsibility.
[88] (2019) 63 Fam LR 102.
In this case the father recognised that the child will live with the mother and that initially his time with the child would be less than equal.
The issue that s 65DAA(3) raised consequent upon there being no order for equal time was the formulation of orders that made provision for the child spending substantial and significant time with each parent and whether any such order is –
(a)in the child’s best interests; and
(b)reasonably practicable.
A child will be taken to spend substantial and significant time with a parent only if the elements of s 65DAA(3)(a) to (c) are addressed, although s 65DAA(3) does not limit the matters to which the court can have regard in determining whether the time a child spends with a parent would be substantial and significant (s 65DAA(4)).
In determining whether it is reasonably practicable for a child to (relevantly) spend substantial and significant time with a parent, the court must have regard to the matters in s 65DAA(5).
It first became necessary to outline and to consider the proposals by each parent for time with the child. Those have been set out already in the passages above.
On behalf of the father, Mr Werner contended that the child should have time with the father that involves five nights per fortnight. He submitted that such an arrangement answers the description in s 65DAA(3) of substantial and significant time Mr Werner pointed out that the father’s proposal is for time between the child and the father –
(a)in week one from 3:30pm on Friday until 9:00am Monday;
(b)in week two from 3:30pm on Wednesday until 9:00am Friday; and
(c)for seven consecutive days over the New Year period.
Mr Werner submitted that the father’s proposal accords with the recommendations of Ms B.
The question of whether a proposal for time equates to the child having substantial and significant time for the child with a particular parent enlivens a consideration of the five matters set out in s 65DAA(5). The first is how far apart the parents will live from one another. The mother gave her address as being some distance from the father. The second consideration in s 65DAA(5) is the child’s parents’ current and future capacity to implement substantial and significant time for the child with each parent. The father expressed his willingness and capacity to do so. However, the mother rejected the father’s proposal for week one and for week two as outlined above. Yet when questioned why she resisted the father’s proposal the mother was unable to articulate the basis of her resistance. Mr Werner submitted that the mother’s stance in adopting that approach was akin to resistance for its own sake because the mother proposed substantially less time for the child with the child’s father.
It became plain to me that the mother was unwilling to budge in any accommodation of the father’s proposal but for no good reason. I accept that the mother seriously dislikes the father, that she distrusts him and that (whether well founded or not) she harbours fears about the father. In circumstances where the family consultant embraces the father’s proposal for time with the child, the child is relaxed and happy in the father’s presence and the child exhibits no fear of the father, I am unable to understand the factual basis for the mother’s resistance of the father’s proposal except to observe that the mother’s resistance is likely grounded in spite for the father. In my view the father’s proposal for time with child satisfied s 65DAA(5)(b).
The third criteria, reposed in s 65DAA(5)(c) invited consideration of the capacity of the parents to resolve difficulties in the implementation of the various parenting proposals. While it is true that at certain changeovers the father and mother have behaved civilly since separation, it is also true that the mother’s inherent suspicion of the father remains an obstacle. It may well transpire that the mother becomes resentful towards the father for his successful block of the mother’s relocation bid. To that I say the parents are adults and both must behave like adults. If they do not, they are likely to condemn their child to 14 more years of further disputation until the child attains his majority.
Under s 65DAA(5)(d) the court must consider the impact on the child of “an arrangement of that kind”. In Richter v Richter I held that the phrase of s 65DAA(5)(e) was inelegant and it was likely to refer, in this context, to the father’s proposal. In my view the evidence revealed nothing adverse by way of impact on the child in the substantial and significant time proposed by the father which seems to be graduated leading to eventual equal time.
No other relevant factors were urged for the purposes of s 65DAA(5)(e).
In this case, as equal time is not initially sought, the issue became whether the father’s proposal for time with the child represented time that was substantial and significant. To determine that question it must be evident that the father’s proposal for time with the child is in the child’s best interests as well as being reasonably practicable. In my view the answer to both is in the affirmative. What follows are my reasons for that conclusion.
So far as the “reasonably practicable” requirement was concerned, despite the distance across metropolitan Melbourne that the parties live, neither asserted that such distance rendered the father’s time proposal impracticable and it must be acknowledged that changeovers occur at Suburb V or in Suburb U. The mother gave evidence that the child’s current routine did not allow for the time the father’s urges because any such alteration to the father’s time represented a change for the child and that the child did not cope well with change.
I reject that proposition. It must not be forgotten that the mother’s relocation application had at its core the notion of child moving approximately 10,000 kilometres from the place of his birth then establishing himself in a fundamentally different routine. One can scarcely imagine change more dramatic. Yet the mother not only encouraged that change, she actively pursued it. On the other hand she contended that extra time with the father represented time with which the child was unable to cope. If the mother put forward a proposal for the child to relocate a very considerable distance from the father arguing that the relocation proposal was in the best interests of the child then I fail to see how the mother can concurrently suggest that a modest increase in time for the father while in Australia is not correspondingly in the best interests of the child. That fact that the mother was unable to recognise the illogical nature of her contentions in that regard bolstered my view that in many respects her perception of the best interests of the child may not be informed by common sense but rather, her perception was motivated by spite towards the father.
No evidence existed about the matters raised in s 60CC(3)(a).
So far as s 60CC(3)(b) was concerned, the nature of the child’s relationship with each parent was favourable. The father and the child connect very well emotionally. The mother, while obsessive in her approach to her relationship with the child, has at all times been actuated by a sense of protection towards the child and it is one of nurturing. As has been recorded above I reject the assertions that the father has behaved inappropriately towards the child.
Section 60CC(3)(c) has been addressed above. I shall not repeat in the context of the father’s application for more time the issues raised by this subsection in the different context of the mother’s relocation application. Suffice it to say that the mother has behaved with commendable devotion towards the child. The evidence revealed that the father had not exhibited the same degree of devotion. That said, one explanation for that may be that the mother has actively shut the father out of the life of the child. The mother did not include the father as an emergency contact for the child on the child’s pre-school centre’s information documentation. The mother left the father’s mother’s home in late 2020 and, essentially, vanished for a time. At least one explanation for the father’s want of participation in decision-making about long term issues in relation to the child may be found in steps taken by the mother to ensure the father was, as near as she was able, marginalised from the child’s life.
Issues involving the parents’ obligations to maintain the child as are canvassed in s 60CC(3)(ca) have already been addressed.
Section 60CC(3)(d) in the context of the child spending more time with the father invited a consideration of the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either of his parents or any other person. It must be kept in mind that the mother has been the child’s primary carer since birth. The father presently enjoys a limited regime of time with the child. The child is growing and the father is attuned to the child’s needs as the child grows. The mother resists change for the child saying (but not providing reasoning to support her contention) that the child will be unable to cope with change. I reject her contention. In my view the time has been reached by which the mother must release her vice-like grip over the child. In the process the child shall experience life beyond such events as the regular gatherings of persons dear to the mother (the survivors of abuse group) and others who focus on the melancholy of identification as abuse survivors. The mother told me she is keen to promote a meaningful relationship between the child and the father. She should be true to her evidence in that regard by promoting the time for the child which confers upon the child a meaningful relationship between the father and the child. In my view there is unlikely to be any deleterious consequences from the father’s proposal for time.
Section 60CC(3)(e) in this present context of an enlargement of the father’s time invited a consideration of the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Mr Werner submitted that the father’s proposal satisfied the element of s 65DAA(5) as the time proposed in the short term as well as the time proposed after the child commences school is reasonably practicable.
The father’s evidence was to the effect that he lives near Suburb K. The mother’s evidence at one point was that she lived in Suburb DD. She later gave evidence that she wished to live near Suburb EE yet she conceded she could not afford to do so.
If the mother moves to the Suburb EE area, a significant but not impossible driving distance will separate the mother from the father. At present, the distance between the two is tolerable and readily accessible.
Changeovers currently take place at one of two police stations – Suburb V or Suburb U. Each involves upwards of half an hour travel. Suburb U, Suburb V, Suburb DD and the father’s residence are all in different areas of Melbourne. It makes no sense for changeovers to be in the areas of Suburb U and Suburb V. A changeover near Suburb K would be proximately sensible.
In Richter v Richter (at [143] and following) I canvassed the concept of the phrase “substantially affect” for the purposes of s 60CC(3)(e) of the Family Law Act. I adhere to those observations for the purpose of these reasons.
On the basis that the mother’s relocation application has been refused, the relevant enquiry under this subsection is whether the consequences of the father’s proposed orders “substantially affect the child’s right” to maintain direct contact with both parents. Mere inconvenience to one or other parent is not relevant to the section. Further, even if the practical difficulties that one parent identifies as the consequence of the proposed orders affect the child’s right to maintain personal relations and direct contact with both parents, those practical difficulties must be commensurate with the adjectival reference “substantially” in order for the subsection to become engaged.
I am unable to see how the father’s proposed orders orchestrate such practical difficulty as to substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. If anything, the father’s proposed orders are likely to enhance the child’s right to maintain personal relations with both parents.
Section 60CC(3)(f), canvassed already above in the context of the mother’s proposed relocation application, invited a consideration of the capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs. Nothing in the father’s proposal indicated to me that there was anything wanting in the capacity of both parents to provide for the needs of the child. In view of the amount of time the mother has spent with the child since his birth, it is unsurprising that the mother has a particular intuition with the child. But that is not to say that the father is in any way incapable of providing for the needs of the child.
Nothing emerged from the submissions of any party in respect of s 60CC(3)(g).
Similarly, s 60CC(3)(h) was not relevant as the child is not aboriginal.
Section 60CC(3)(i) raised an issue that concerned me, namely the father’s preparedness to expose the child to a well known friend of the father who was a drug user. The father seemed to slough off this friend’s drug use as having little to no bearing on the father’s responsibilities towards the child. Whenever the child is in the father’s care the father must abstain from alcohol and drug use and the father must not permit the child to be in the presence of anyone deleteriously affected by alcohol or drug use.
Section 60CC(3)(j) and (k) have been addressed.
Section 60CC(3)(m) was not the subject of separate submission in the context of the father’s proposal for time.
ORDERS
The precise form of orders appear immediately under the headnote, cases and legislation considered and legal representation.

I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.
Associate:
Dated: 31 January 2023

File number(s):	MLC 11826 of 2020
Judgment of:	WILSON J
Date of judgment:	31 January 2023
Catchwords:	FAMILY LAW – RELOCATION – best interests of the child – relevant legal and factual considerations – application refused. FAMILY LAW – PARENTING – application for the enlargement of time for the father – application granted.
Legislation:	Family Law Act1975 (Cth) 4AB, 60B, 60CC and 65DAA
Cases cited:	AMS & AIF (1999) 199 CLR 160 Briginshaw v Briginshaw (1938) 60 CLR 336 Commonwealth v Baume (1905) 2 CLR 405 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 G & C [2006] FamCA 994 Galea v Galea (1990) 19 NSWLR 263 Gerber & Beck [2020] FamCA 210 GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 Godfrey v Sanders (2007) 208 FLR 287 Honeysett v The Queen (2014) 253 CLR 122 In the Marriage of Scott (1994) 17 FamLR 420 Isles v Nelissen (2022) 65 Fam LR 288 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lovell v Lovell (1950) 81 CLR 513 M v S (2006) 37 Fam LR 32 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mazorski v Albright (2007) 37 Fam LR 578 Morgan v Miles (2007) 38 Fam LR 275 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Richter v Richter (2019) 63 Fam LR 102 Sigley v Evor (2011) 44 Fam LR 439 South West Water Authority v Rumble’s [1985] AC 609 Taylor v Barker (2007) 37 Fam LR 461 Taylor v Public Service Board (1976) 137 CLR 208 Yarrow & Yarrow [2022] FedCFamC1A 135 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	189
Date of last submission:	16 November 2022
Date of hearing:	4-6 and 17-20 October 2022 and 14-16 November 2022
Place:	Melbourne
Counsel for the Applicant:	Mr J. Werner
Solicitor for the Applicant:	Kelly & McHale Family Lawyers
Counsel for the Respondent:	Mr C. Dunlop
Solicitor for the Respondent:	Nicholes Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr D. Robertson

MLC 11826 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GARTON Applicant
AND:	MS DALE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	WILSON J
DATE OF ORDER:	31 JANUARY 2023