Grainger & Grainger (No 3) - [2024] FedCFamC1F 470

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Grainger & Grainger (No 3) [2024] FedCFamC1F 470

File number(s): LEC 216 of 2022

Judgment of: SCHONELL J

Date of judgment: 1 August 2024

Catchwords:
FAMILY LAW – PARENTING – Relocation – Where the mother sought to permanently move to the United Kingdom with the child – Where the father opposed the relocation to the United Kingdom – Where the mother has unilaterally removed the child to the United Kingdom on a prior occasion – Where the High Court of Justice in the United Kingdom ordered the child be returned to Australia – Where the child has not spent time with the father since 2015 – Where final parenting orders were made in 2015 and again in 2019 – Where there is a complex and lengthy history involving high conflict between the parties – Where the Court determined that, on balance, the child’s best interests are met by permitting relocation

FAMILY LAW – PROPERTY – Where the mother sought enforcement of financial orders made in 2015 and to be made trustee for sale of the property – Where the father sought orders pursuant to s 79A(1)(c) setting aside the consent property orders and for the Court to make new orders pursuant to s 79 – Where the Court determined that previous property orders should be enforced and that the mother after a further 90 days be appointed as trustee of sale for the property.

Legislation:
Family Law Act 1975 (Cth)

Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”)

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

Bailey & Bailey (No. 2) [2018] FamCA 632

Franklyn & Franklyn [2019] FamCAFC 256

McDonald and McDonald [1976] FamCA 29

Monticone & Monticone (1990) FLC 92-114

Morgan v Miles (2007) FLC 93-343; [2007] FamCA 1230

Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152

Rice & Asplund (1979) FLC 90-725

Rohde & Rohde (1984) FLC 91-592

Sayer v Radcliffe and Another (2012) 48 Fam LR 298 [2012] FamCAFC 209

U v U (2002) 211 CLR 238; [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 226

Date of hearing: 2 – 4 July 2024

Place: Sydney

The Applicant: Litigant in person

Counsel for the Respondent: Mr Jackson

Solicitor for the Respondent: Mr Bawa, Justice Family Lawyers

Independent Children’s Lawyer: Mr Holmes, Holmes Donnely & Co. Solicitors
ORDERS

LEC 216 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GRAINGER

Applicant

AND:
MS GRAINGER

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

1 AUGUST 2024

THE COURT ORDERS THAT:
1.All current parenting orders are discharged.
2.The child L born 2009 live with the mother.
3.Subject to the terms of this order, the mother shall have sole parental responsibility for major long term decisions for the child but shall advise the father in writing not less than fourteen (14) days prior to the decision coming into effect if she intends:
(a)To change the child’s surname; or
(b)To change the child’s school, once the current home schooling arrangements cease.

4.The child shall spend time with the father in accordance with her wishes.
5.The parents are to keep the other informed of their current email address, emergency telephone number, postal address (for gifts and correspondence to the child) and shall advise of any change within fourteen (14) days.
6.The mother shall advise the father within fourteen (14) days of the re-enrolment of the child into a public or private school, including the name of the school, upon the cessation of home schooling and this order shall be authority for the father to obtain information from the school as to the child’s progress.
7.The mother shall advise the father if the child suffers a serious injury, condition or illness requiring hospitalisation within forty eight (48) hours of such hospitalisation.
8.The father shall be permitted to send to the child a card and/or gift for the child’s birthday, Christmas or other significant milestone in the child’s life and the mother shall ensure that such cards and gifts are handed to the child without any adverse comment.
9.The mother shall encourage the child to respond by email to the father to thank him for the card or gift.
10.The mother shall no less than twice in each calendar year, provide the father by email with:
(a)A written summary of information concerning the child which shall include an update on the child’s health, education, hobbies and any activities/sports the child is attending as well as recent photographs of the child; and
(b)A copy of the child’s school reports when received.

11.The mother has permission to relocate the child’s residential address to the United Kingdom conditional upon the child spending three Microsoft Teams events of not less than ten minutes with the father and his parents. Such Microsoft Teams events to occur at a time agreed upon between the parties and failing agreement to occur at weekly intervals; the first such event to occur on the first Wednesday following compliance with Order 12 and to take place between 6.00 pm and 7.00 pm with the mother to initiate the Microsoft Teams event to the father. The father is to provide to the mother within 72 hours of the making of these orders by way of email, his contact details for the purposes of the Microsoft Teams event. The Microsoft Teams events are to occur on weekly intervals thereafter.
12.The ICL is requested to meet with the child and explain to the child the making of these orders.
13.Upon the ICL having explained the orders to the child, the ICL is discharged.
14.That, at the expiration of 90 days after the making of these orders, by way of enforcement of the orders made on 18 June 2015 (as varied on 23 May 2016) pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) and specifically referrable to orders 22 to 27 inclusive, the property located at T Road, Town O in the state of New South Wales, (“Town O property”) be sold and for the purposes of effecting that sale:
(a)The mother be appointed as Trustee for sale (“The Trustee”) at which point she shall have all the powers of a Trustee for Sale of real estate appointed pursuant to the laws of the state, including in addition, the Trustee is empowered to do all things, including signing all documents necessary to effect a sale of the Town O Property including but not limited to:
(i)Determining whether the sale is by private treaty or by auction;
(ii)Appointing and instructing a Listing Agent and Conveyancer to act on the sale;
(iii)Liasing with and instructing any third parties, including insurers of the Town O property, to resolve any outstanding claims and preparing the property for sale;
(iv)Determining the sale price, including the listing price from time to time, or the reserve price in the event of sale by auction; and
(v)Negotiating with the highest bidder in the event that the reserve price is not reached.

15.That in relation to the sale of the Town O property, the father shall:
(a)Co-operate in every way with the selling agent including:
(i)Making the key available;
(ii)Allowing inspection of the Town O property at all reasonable times requested; and
(iii)Complying with any requests made by the selling agent, relating to the sale of the Town O property.

(b)Be restrained from doing or saying anything to hinder or prevent a sale being effected;
(c)Ensure, at his expense, the Town O property, including the grounds, are in a neat and clean condition at the time of the inspection by the selling agent and prospective purchasers;
(d)Vacate the Town O property, at his expense, on or before completion of the sale so as to provide vacant possession to the purchaser of the property.

16.That pending the sale of the Town O property, the father be:
(a)Restrained from further encumbering the Town O property;
(b)Solely responsible for all outgoing, including mortgage repayments, council rates and water rates, maintenance levies etc relating to the Town O property.

17.That upon the sale of the Town O property, the proceeds of sale (including any deposit received) are to be applied in the following order and priority:
(a)In payment of agent’s selling commission and auction expenses relating to the sale;
(b)In payment of all conveyancing related legal costs and disbursements in relation to the sale;
(c)In repayment of such amount as is necessary to discharge the mortgage secured upon the Town O property;
(d)An amount equal to 70 per cent of the balance then remaining to the mother;
(e)In repayment of any strata levies outstanding in relation to the Town O property;
(f)In repayment of any amount owed by the applicant father to the Legal Aid Commission of NSW (“LAC”) and for the purposes of compliance with this order:
(i)Within seven days from the date of these orders, the solicitors for the mother write to the LAC asking them to confirm the amount owed to them by the father.

(g)The balance thereof to the father.

18.That the Trustee have liberty to apply to the Court for the making of any orders or the giving of any directions in relation to the trust created by these orders.
19.In the event that the father refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then the Registrar of the Court be appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of the father and do all acts and things necessary to give validity and operation to these orders.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Grainger & Grainger has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

Before the Court are competing applications in relation to the parties’ only child, who is nearly 15 (“the child”). The parties have been in conflict about the child for almost all her life.
This is the third final parenting hearing in relation to the child. A hearing in 2015 culminated in orders that included the child living with the mother, with her to have sole parental responsibility and for the child to spend a period of time with the father as agreed or as directed by a psychologist and failing agreement at a contact centre for not less than two hours per fortnight. Orders were also made by consent pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
Time with the father did not occur as ordered.
Within six months of the 2015 orders, another parenting application was filed which culminated in a further hearing in 2018 with judgment in 2019. The Court again ordered the child to live with the mother and for the mother to have sole parental responsibility. This time the Court made no orders for time with the father.
Unhappy with the outcome, the father appealed. His appeal was dismissed.
In 2021 the mother took the child to the United Kingdom (“UK”) for a holiday but did not return. The father invoked the return provisions pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). Consistent with the Hague Convention, the High Court of Justice made orders for the child to return to Australia.
The mother appealed and her appeal was dismissed. An application was then made ostensibly on behalf of the child for a stay of the orders. That application was refused. Further orders were made to ensure the return order was complied with.
The mother and child returned to Australia in mid-2022.
On 25 April 2022 the father filed a further parenting application. Such application was subsequently amended to include orders setting aside the final 2019 parenting orders and the 2015 property orders.
The father seeks, amongst other orders, sole parental responsibility, that the child live with him and spend time with the mother (after a three month period of no time) each alternate weekend and half school holidays. Alternatively, if the Court accedes to the mother’s application to relocate the child to the UK, he conceded that the mother should have sole parental responsibility, that he and his parents should have time with the child in a series of meetings of four hours duration pending the return to the UK. Thereafter he sought various time orders in the UK and Australia. The father also sought orders pursuant to s 79A(1)(c) setting aside the consent property orders and for the Court to make new orders pursuant to s 79.
The mother for her part seeks orders that she be permitted to relocate the residence of the child to the UK. The mother opposes the father's s 79A application and seeks to enforce the 2015 property orders.
The parenting applications as posed by the parties called for one of three possible outcomes. No others were postulated, contemplated, or explored. The father did not propose the continuation of the 2019 orders. The possible outcomes were:
(1)The child lives with the father in Australia and spends time with the mother (the father’s primary proposal); or
(2)The child lives with the mother in the UK and spends time with the father (the father’s alternative proposal); or
(3)The child live with the mother in the UK and spends time with the father in accordance with her wishes (the mother’s proposal).
One might hope, given the child’s age, this is the last time these parties will litigate in relation to her. Such however would be a triumph of hope over experience. Each has shown an unrestrained vigour and propensity to litigate. Each seeks to blame the other. Neither is without fault.
For reasons that are set out below, I will dismiss the father’s applications, permit the relocation, and make orders to enforce the 2015 property orders.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
(1)Further Amended Initiating Application filed 6 February 2024;
(2)Affidavit of Father filed 28 May 2024;
(3)Affidavit of Dr DD filed 28 May 2024;
(4)Affidavit of Mr EE Property Valuer filed 25 June 2024;
(5)Financial Statement filed 2 February 2024.
The mother relied upon the following documents:
(1)Amended Response to Final Orders filed 2 November 2023;
(2)Affidavit of Mother filed 16 May 2024;
(3)Affidavit of Ms S (“the maternal grandmother”) filed 13 May 2024;
(4)Affidavit of Mr BB filed 15 May 2024;
(5)Financial Statement of Mother filed 24 June 2024.
A single expert report was prepared by Dr J dated 4 December 2023 (“the 2023 report”). Each party referred to the 2023 report.
In addition to the above documents, each party sought to tender various documents which became exhibits in the proceedings.
I have also had regard to the judgments of Tree J delivered 20 April 2015 and 18 June 2015, Baumann J delivered 11 February 2019, the Full Court delivered 23 August 2019 and judgments of the High Court of Justice.
ISSUES
On 15 April 2024 the father and mother were directed to file a list of what they asserted were the issues in the proceedings. Not all of the matters the subject of the lists were addressed in evidence or submissions. I have endeavoured to cover in these reasons what each of the parties contend were the relevant issues. That said, I am not obliged to resolve every factual controversy nor mention every fact or issue raised by the parties (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).
I regard the following, amongst others, as relevant issues for consideration:
(1)Is a change of primary care to the father in the child’s best interests;
(2)Is there the possibility of a resumption of a relationship between the father and the child;
(3)Is that possibility more likely if the child stays in Australia or is permitted to move to the UK;
(4)The weight to be given to the child’s views;
(5)Is a relocation to the UK in the child’s best interests.
BACKGROUND
The parties commenced cohabitation in early 2006, were married in mid-2006 and separated on a final basis in August 2010. The parties were divorced in early 2012.
The parties’ only child was born in 2009, and is currently 14 years old. At the time of separation, the child was very young.
On 17 December 2010, the father commenced proceedings in the Federal Circuit Court of Australia (as it was then known).
December 2012 was the last time the father spent time with the child prior to the 2015 hearing.
In June 2015, Tree J delivered reasons and made orders. In his judgment His Honour referred to the orders that had been made to enable the child to spend time with her father as follows:
144.An important aspect of the mother’s case is that the child strongly reacts adversely to the prospect of, and in consequence of, spending time or communicating with the father. The father does not dispute that behaviour, however says that it is influenced and caused by the mother and maternal grandmother. …
145.The first Contact Centre utilised by the parties was at [Town E]. The father first spent time with the child on 29 June 2012 at that facility and last spent time with the child there on 15 December 2012. A subsequent attempt at having the child spend time with the father at that Centre on 4 January 2013 was abandoned, and no further attempts at contact at that Centre were attempted.
146.Pursuant to the consent orders made at the commencement of the trial before me, the mother moved to [Town H], and renewed attempts at getting the child to spend time with the father commenced at the [FF Contact Centre] on 28 June 2013. They continued until 3 May 2014, when an attempt at having the child spend time with the father was abandoned, and thereafter the father agreed to suspend spending further time with the child. That is the last occasion (leaving aside the Family Report interviews) when he has attempted to spend time with the child.
147.Turning firstly to the supervised time at the [GG Contact Centre], on the first occasion that the child spent time with the father, she was angry at separating from her mother, which anger lasted about 10 mins. Notwithstanding that, once the visit was underway, it went well. On 13 July and 3 August 2012 there were also separation issues, but the visits went well. Thereafter for the next five visits there were no separation issues recorded in the notes, and the visits went well. The last such visit was on 19 October 2012.
…
149.Thereafter, until the attempts at contact were abandoned, the child on each and every of the five subsequent visits at the [GG Contact Centre] had major separation issues. On 2 November, the child cried for the first hour of the visit when she spent time with the father. The next visit on 23 November was cancelled because of the child’s distress at separation. Likewise the attempted contact visit on 30 November was cancelled. The Contact Centre notes record:
[The child] became distressed; crying (building to deep sobbing, requiring tissues to wipe tears and mucus from face); saying that she wanted to go with her mother and holding onto her mother’s legs and arms and asking her mother to cuddle and pick her up…
150.The next visit was on 15 December 2012. The Contact Centre notes records:
[The mother] gave verbal encouragement “its time to see daddy” but made no move to facilitate separation with physical cues.
151.The child was demonstrating some distress and separation anxiety. However ultimately the child was persuaded to spend time with her father and appeared to spend reasonable time both with him and the paternal grandparents.
…
227.I am satisfied to the requisite standard that the mother and maternal grandmother want to sabotage the child’s relationship with the father, and paternal family generally. They firmly believe that there should be no such relationships, and not merely will not facilitate them, but will actively seek to destroy them.
…
231.On occasions when the father and this litigation is being discussed between the mother and maternal grandmother, I am satisfied that there is no risk whatsoever that any positive statement about the father would be made. I am satisfied the maternal grandmother and mother would only ever speak negatively of the father. Moreover, I am satisfied that even if he were mentioned, even in a benign context, their response would inevitably be a negative one. I have no doubt whatsoever that the child knows that both her mother and grandmother have the strongest possible negative views of her father, and this would only be reinforced by their inevitable anxiety at the child spending even supervised time with the father, and, on occasion, their hostile and aggressive behaviour to Contact Centre staff and others.
…
256.Weighing all of those matters in balance, I am not persuaded that the father presents as an unacceptable risk of sexual harm to the child.
…
266.I am not satisfied that the child spending time with the father would significantly impair the mother’s ability to parent the child.

Under the heading “What Risks Does the Mother’s Orders Pose” His Honour recorded:
269.The mother has a fervent belief that the father sexually abused the child. She is supported in this view by the maternal grandmother, upon whom the mother is highly dependent. Since the mother reached that belief, she has done little to facilitate a relationship between the child and the father. Indeed it may fairly be said that on occasions her behaviour is consistent with a desire – not necessarily advertent – to sabotage the relationship between the father and the child. For instance she has prolonged distressing separations when the child was due to spend supervised time with the father. In saying that I accept that it was the maternal grandmother who appears to have been particularly flagrant in her sabotage at such events – for instance her conduct on 4 January and 25 October 2013.
270.On occasion, the mother – supported by the maternal grandmother – has acted unilaterally in ways which stood to diminish the prospect of the father enjoying a relationship with the child. Instances of that are her unilateral decision to stay in the [United Kingdom], her move to [Town Y] and her subsequent move to [Town H].
271.The mother concedes she sees no benefit in the child having any relationship with the father or paternal grandparents. Therefore there is a live risk she will alienate the child from them.
Magnitude of risk
272.I am persuaded that the mother is fairly determined to ensure that the father does not have a relationship with the child. Absent any regime of orders, I would assess the probability of her continuing to act in furtherance of that objective – and to achieve it – as reasonably high.
…
275.There is a high risk that the mother will continue to seek to wholly deprive the child of any relationship whatsoever with her father or paternal grandparents. That may effect emotional harm to her which may be long lived and considerable. The risk of that harm is real and substantial but not certain.
…
277.… I am satisfied that the mother would not promote any relationship whatsoever between the child and the father, and would seek to – as indeed she has already done - cut the father completely out of the child’s life. That carries with it a real risk of long term harm to the child of an emotional or psychological kind. Absent a regime of appropriate orders, that risk is considerable, but not necessarily unacceptable. Certainly, even if the risk were adjudged an unacceptable one, a regime of orders which saw the child spending time with, and hence experiencing the benefits of a relationship with, the father, would ameliorate it to the point of it being acceptable.
Under the heading of “Likely Effect on Child of Change in Primary Care” Tree J opined:
281.It is certain that the complete separation of the child from her mother (and indeed maternal grandmother) would effect cataclysmic change in the child’s life, and be extremely distressing for her. … No one can accurately predict the level of the child’s distress upon prolonged separation from her mother, or its duration, or the extent to which it may move beyond distress to become a psychological issue. … one simply could not just remove the mother from the child’s life. It would need to be done in a stepped fashion.
…
283.Further, the child has not in recent times spent any time whatsoever with the father. That is not meant as a criticism of him, but is merely to state the facts. In recent times the child has expressed a strong disinclination to even be in the presence of the father. There is no reason to think that that would change if she were to be told that she was immediately moving into his full time care.
284.There are therefore two factors potentially at play: firstly the effects of separation from her mother and maternal grandmother, and secondly the effect on the child of being forced to be cared for by the father.
285.Were this a child who had demonstrated no adverse effects from suffering anxiety in the past, the risks attached to the father’s proposals may not be as concerning as they are here. However this is a child who has plainly demonstrated highly concerning behaviours associated with her anxiety, and the only confident prediction which can be made is that she would experience profound anxiety in the short term under the father’s orders, with the nigh inevitable consequence that she would again demonstrate concerning adverse reactions. [Ms M] said it would generate “a real risk of further traumatisation” of the child. Beyond that, the matter is unknown.
286.I am satisfied that the effect on the child of changing her primary care to the father would carry a serious and substantial risk of long term and serious psychological outcomes for her.
…
309.However there was a worrying naivety to the father’s proposal. In cross-examination it became plain he had not really, in any detail, thought through how his proposal would work. He seemed to think that if the child initially demonstrated deep distress, it could be dealt with satisfactorily by “counselling.” He said if things went badly for the child he would seek appropriate professional help, although had then not identified any such person. [Ms M] thought the father’s proposals showed a lack of insight on his part. I accept that evidence.
…
319.The father is not an unacceptable risk of harm to the child. Unless there are orders permitting the father to spend time with the child, the mother is likely to actively impede the development of any relationship between the child and the father. As it is, even if there are such orders, the mother is likely to attempt to sabotage the development or rehabilitation of any relationship between the father and the child in any event. Particularly, she is likely to exploit every opportunity for review of orders, and engineer circumstances so as to cause any orders for the father to spend time with the child to fail.
…
326.I am satisfied that the mother, and particularly the maternal grandmother, have in the past sabotaged the supervised time which the father has spent with the child, or at least was intended to spend with the child. The examples of the maternal grandmother’s behaviour in 2013 could be construed no other way. She was attempting to cause the then imminent time with the father to fail.
Justice Tree made orders for the mother to have sole parental responsibility and for the child to live with her. Orders were also made for the father to spend supervised time with the child with a liberty to vary the order after six sessions of supervised time and the obtaining of a report from a psychologist. Final property orders were made by consent that provided for the sale of a property at Town O in NSW and for the proceeds to be divided 70 per cent to the mother and the balance to the father.
The sale of that property has yet to occur.
In September 2015, there was one session of supervised time between the child and the father in the presence of a psychologist, Mr V. Following that visit Mr V provided a report.
This is the last occasion on which the father spent time with the child.
In late December 2015, the mother applied to the Court for orders permitting her to travel to the UK. The father responded by making a fresh application for parenting orders.
In around February 2017, the child was diagnosed with autism spectrum disorder (ASD) at level two, requiring 'substantial support'. It is clear from the father’s cross examination that while he accepts that a diagnosis was made, he challenges the factual foundations for the diagnosis.
On 25 May 2017 interim orders were made by Le Poer Trench J suspending the June 2015 orders. The father contended that this order suspended the operation of the financial orders. The mother contended that it did not, alternatively she asserted such order was made erroneously. Orders were also made for the father and the child to consult with Dr J, for the purposes of reunification therapy.
No such reunification occurred.
A further hearing took place before Baumann J in August 2018. Dr J was instructed to prepare a report for that hearing.
At that hearing both parties sought a discharge of the 2015 parenting orders. In the case of the mother, she sought the child live with her, that she has sole parental responsibility and the father spend no time with the child. She sought some further consequential orders restraining the father from contacting the child, approaching the child’s home, publishing any material on social media and orders permitting her to travel overseas with the child. The father proposed the child live with him, that he has sole parental responsibility subject to consulting with the mother and the child spend time with the mother as the Court considered proper.
The father agreed during cross-examination by the ICL that the orders that he sought before his Honour are largely the same as those that he currently seeks.
In his Honour's judgment he referred to the orders having previously been made by Tree J and recorded that, as contemplated by Tree J, the father was to engage with the child in the presence of a psychologist, Mr V. His Honour recorded as follows:
8 …
d)sadly, as it transpires, the visit on 3 September 2015 in the rooms of [Mr V], was the last contact that [the child] has spent with the father – now over three years and despite other Court directed initiatives as I set out;
…
f)[Mr V] expressed an opinion for two fold reasons for [the child]’s reluctance to engage with the father, namely:
i)the obvious presence of cognitive rigidity in [the child] and may simply have decided her father is “bad” and continues to default to this idea; and
ii)a possible contributing factor is [the child]’s possible awareness of the mother’s (and [the maternal grandmother]) fear and dislike for the father such that [the child] aligns herself with the mother’s view that the mother presents as the only “safe option”.
g)The opinion and recommendations for future paternal visitation and parenting was expressed in these terms:
“The contact visit between [the father] and [the child] on 3/9/15 demonstrated that given the appropriate circumstances and time, [the child] is able to find comfort in [the father]’s company and that [the father] is capable of emotionally connecting with his daughter.…”
(Original emphasis)
His Honour recorded that notwithstanding the positive reactions on 3 September 2015, it had not been built upon. His Honour referred to orders made by Le Poer Trench J on 25 May 2017 which suspended the 2015 orders and included orders that the parties were to follow the recommendations of a psychologist as to the time the father was to spend with the child. His Honour recorded that notwithstanding those orders, no contact between the father and the child occurred.
Justice Baumann observed that little had changed in the dynamic of the parental arrangement subsequent to the making of orders by Tree J. His Honour observed:
32.The dilemma now is frankly almost identical to that faced by Tree J when his trial finished although regrettably the situation is much more difficult for [the child] now (at age [9] years) then it was when she was six years old at the last visit in September 2015. The findings I make demonstrate that to be the case, and why [Dr J] opines only extreme orders for [the child] are an option. How the only Court expert in the trial before me came to this conclusion, is explained by the next section of these Reasons.
His Honour recorded that he had no confidence that the mother has insight into the effect of her behaviour on the child. His Honour thereafter canvassed the evidence of Dr J. He observed that one of the major issues of concern for Dr J was limiting further litigation between the parties.
His Honour found that the father had the capacity to meet the child’s physical needs and a genuine desire to meet the child’s social and emotional and psychological needs at [44(f)]. His Honour found that the father would be willing to do just about anything to have a relationship with his daughter but:
44. …
g)… such a genuine desire does cause him, in my view, to underestimate the challenges that [the child] would present if a change of residence would be ordered.
His Honour found that there was a benefit to the child of having a meaningful relationship with the father, that the child was not at risk of physical, sexual, or emotional harm in the father’s care, and that the mother’s behaviour and views of the father are likely to distort the child’s emotional wellbeing.
He recorded that the child did not wish to see her father and that Dr J opined that the child’s views probably mirrored those of the mother and the maternal grandmother. His Honour found that the father had been effectively denied by the mother’s behaviour from participating in decisions about the child or spending time with her [45(e)] but determined that the evidence did not indicate that a further interim order was likely to achieve a reunification between the father and the child.
Under the heading of “Effect of a Change of Residence” his Honour recorded that there was unlikely to be any change in the attitude of the mother and maternal grandmother toward the father, that the mother was likely to be wholly vigilant and over-protective and that there was a likelihood that without intensive counselling the mothers parenting style will create huge difficulties in managing the child’s behaviour.
His Honour recorded that a change of residence to the father would not only involve a change to a completely unknown and untested situation but also that the father had little real understanding of the difficulties to be faced. His Honour concluded:
49.…
b)… I am not satisfied that with the journey this child has been forced to navigate any intense counselling will prevent a serious meltdown – perhaps with tragic consequences. The father will exert every ounce of effort and seek every professional assistance but when a highly skilled psychologist like [Dr J] has reached a conclusion that reconciliation is not possible, I can hardly ignore that opinion.
Justice Baumann discharged the order that had been suspended in so far as it related to the financial orders. The parenting orders made by Tree J were discharged and various orders were made including an order for the mother to have sole parental responsibility and for the child to live with her. No orders were made for the child to spend time with the father. In that respect his Honour held:
59.… In my view in the circumstances of this case such an order could be construed by others as the Court having made some adverse findings against the father. The Court has not done so. No prescribed order for the child to spend time with the father is the better style of order.
On 11 March 2019, the father filed an appeal against the final parenting orders. The appeal was heard on 14 August 2019. On 23 August 2019, the father's appeal was dismissed.
Between 2019 and the travel to the UK in 2021 the fathers only contact with the child was by cards and letters. The fathers unchallenged evidence about his attempts to communicate with the child are as follows:
103.Since the 2019 judgment I have been regularly sending [the child] cards and gifts by post, including for birthdays, Easter and Christmas but also randomly throughout the year. I would typically receive a card, drawing or note a few weeks or sometimes months later from [the child] thanking me. Occasionally a photo was included of [the child] with the gift I had sent. My parents would also send cards and gifts and receive letters in reply.
In mid-2021, the mother travelled to the UK with the child. The mother says that she provided the father with written notice of her intention to travel to the UK. The father contends that no letter was sent and that he received no prior notification of the travel.
In the Hague proceedings, the High Court of Justice accepted the father’s evidence that he did not receive the letter and did not know of the travel. I likewise accept the father did not receive notice of the travel.
The mother contended that the letter was sent by registered mail by her mother. The mother’s conduct in doing so was in clear breach of Order 10 made 11 February 2019 that required her to give the notice and that she do so by email.
I found the mother and her mother’s evidence on this issue unconvincing. I am satisfied they would have known that it was highly likely the father would have opposed the trip and may have tried to prevent it. I accept the thrust of the father’s case that merely providing a copy of a registered envelope is not proof of its contents. It is however unnecessary to resolve the factual controversy as to whether a letter was ever sent although I have reservations that it ever was.
On 5 August 2021 the father’s solicitor wrote to the mother saying that the father had discovered that the child had been removed from Australia without notice to him. The letter requested advice as to the date of her return.
On 13 August 2021 the mother wrote to the father and told him that her date of return was late 2021. I am satisfied that this statement as to a proposed return date was deliberately disingenuous if not intentionally misleading.
Three days later on 16 August 2021 the mother advised the father that she wished to stay in the UK and did not intend to return.
It is inconceivable that the mother changed her mind between 13 August 2021 and 16 August 2021. The mother agreed in cross examination that she sought legal advice as to her prospects of staying in the UK within weeks of arriving.
The father invoked the return provisions pursuant to the Convention and proceedings were commenced in the High Court of Justice, Family Division.
In September 2021 the maternal grandmother leased her home in Town G. At that time the father’s application for the child’s return had been filed and was yet to be heard. I am satisfied the property was rented to make the prospect of return to Australia more difficult and was but another example of the lengths the maternal family will go to sabotage any hope of a relationship with the child.
Before the High Court of Justice, the mother contended the child objected to the return and that a return would expose the child to physical and or psychological harm. A report addressing the child’s views was prepared. Neither of these arguments were accepted by the Court and in early 2022 Deputy Judge Colton found that the child had been wrongfully retained in the UK and ordered her return to Australia.
In the course of his judgment, his Lordship observed:
75. There is no suggestion that before [the child] and her mother left Australia in [mid]2021, [the child]'s life in Australia was somehow intolerable. On the contrary, I was told that she was doing well and succeeding in [group activities], for example.
76.It is a relevant consideration, in my judgment, that the Australian court has found this such a difficult case to deal with in the past. In essence, Father has done nothing wrong, but Mother's implacable hostility towards him has led to the court permitting Mother to undermine and effectively destroy any relationship he has had with [the child]. Mother’s move to the UK would have had the effect of crystallising that position. However, the Australian court held out the hope that in future [the child] might wish to build a relationship.
The mother sought leave to appeal. In April 2022 leave was refused.
The mother gave evidence that she was advised by her lawyers in the UK that the child could make an application to remain in the UK. The mother subsequently arranged for the child to meet with Mr HH, a solicitor, who filed an application on the child’s behalf seeking a stay of the return order.

Mr HH prepared an affidavit in which he recorded that he asked the child if she could envisage meeting her father if the proceedings went away and she tacitly nodded. The child’s attitude towards the father has apparently hardened since then.
Consistent with a long pattern of placing her needs before those of the child, the mother, unnecessarily, entirely selfishly and with scant regard for the child’s welfare involved the child in those proceedings. The mother’s excuse that the child wanted to be involved is a complete derogation of her parental responsibility. It is but another example of the mother perpetrating emotional and psychological abuse.
On 25 April 2022, the father commenced the current proceedings.
The child’s application was heard by Deputy High Court Judge Verdan in April 2022 and was dismissed. In the course of reasons, his Lordship rightly deplored the mother’s conduct observing:
11.… I asked [Mr JJ], counsel for [Mr HH] and [Ms KK], counsel for Mother how it came to be that [the child] in fact, a twelve-year-old, who is considered to be vulnerable, came to meet with [Mr HH]. Some details were provided during the course of oral exchanges but they were pretty scant. Based on what I have been told, it is not really disputed that the mother arranged the telephone call with [Mr HH] in the first place and set it up, and then made arrangements for [Mr HH] to meet [the child].
12.I do not think it is in dispute that [the child] would not have been able to facilitate and arrange this meeting with a specialist [UK] solicitor but for the fact that the mother behind the scenes was in effect arranging it and setting it up. I have to say I deplore this behaviour in the circumstances of this case where the proceedings are in effect over and the appeal has been dismissed and where [the child]'s voice was heard in those proceedings. I think this is a stark example of a parent who is unhappy with the result of a court process, attempting to thwart the result of that process, namely a return order. …
…
16.In my view, the delay in this case is prejudicial to [the child] and the return order has to occur, and I will consider that shortly. I have already referred to the fact that in my view setting her up with a solicitor after permission to appeal was refused, was a flagrant attempt by the mother to in effect scupper the return. I take into account the long history of this case, the high conflict and what has been said in the proceedings already in relation to it, and I take into account [the child]'s age and vulnerability.
His Lordship ordered the child return to Australia by no later than 11.59pm on a date in mid-2022.
Notwithstanding the dismissal of that application, the mother failed to return in accordance with the orders made by the High Court of Justice and a further application was made by the father seeking compliance.
That application was heard on 7 June 2022 and the mother was ordered to return to Australia a short time later.
Following the move to the UK the child’s communication with the father became more sporadic and superficial. The communications were described by the father as follows:
114.Because all international parcel post was going by sea due to COVID at that time, I arranged for a birthday gift and card to be sent by my friend […] in [the UK] to [the child] in [late] 2021. She posted it via [the mother]’s brother [...] address [in the UK]. I never received any acknowledgment from [the child] as per the orders, nor has my mother for the card she sent. It must have been received as the enclosed letter was included as part of [the mother]'s evidence in the UK trial.
115.I then sent [the child] a Christmas gift, which unfortunately sat at Sydney airport for several weeks due to the pandemic, but ultimately arrived in [a different area of the United Kingdom] on 14 January 2022. I then received a complaint from [the mother] that she had to pay a customs fee to collect it. I received an acknowledgment from the mother on 17 January that, “I will encourage [the child] to write to thank you in due course”.
116.I later received a card in late February 2022 from [the child] by post which simply read, “To Daddy, thank you for my present, however the best present you could possibly give me is to let me stay in [the United Kingdom]. From [the child]”. This is the only correspondence I received from [the child] while she was being retained in the UK.
117.Since returning to Australia [the mother] says [the child] has rejected all my letters and parcels without opening them and [the child] told CAFCASS that she would rather not receive presents from me because it's like receiving gifts from a stranger…
118.On 12 January 2024, I received another card from [the child], depicting a sunset over a pier. Inside the card she wrote, “To Dad, thanks for the parcels but as stated in my previous card all I want is to return home to [the United Kingdom]. That is the only present I want. Regards, [the child].”
There is no evidence that the child has contacted the father since January 2024.
DR J'S EVIDENCE
I have carefully read the report of Dr J and listened closely to her oral evidence. There was no challenge to her expertise or experience. I am satisfied she has a comprehensive understanding of the issues, and insight into the problems faced by the child. The report and her oral evidence was considered and insightful. She has the benefit of a longitudinal assessment having been engaged with the parties since 2017 including as stated earlier, having preparing a report in 2018 for the proceedings before Baumann J.
For the purposes of her current report, Dr J interviewed, amongst others, the parties, the child, the child's psychologist and read the documents recorded in her report. At the commencement of her oral evidence, she acknowledged that she had read the trial affidavits. She advised that her views remained unaltered.
In relation to the positions adopted by each party in respect of their competing applications, Dr J reports as follows:
30.[The father] asserted that he continues to feel concerned for the manner in which [the child] is exposed to undermining forces and considers the only way forward and to remove her from the care of [the mother] and have her participate in therapy preferably with [Dr DD]. [The father] said that he would intend enrolling [the child] in a school nearby to where he lives. He commented that he has friends and family who would support him. He believes that would bring more balance into [the child]’s life.
31.As per her Response, [the mother] proposed that the final parenting orders dated 11th February 2019 be enforced. She proposed that she and [the child] be permitted to relocate to the United Kingdom.
32.[The mother] was adamant that she believes it is in the best interests of [the child] to live in the U.K. given the ease with which she had settled in. [The mother] asserted that property remains unresolved.
The father reported to Dr J that little had changed since the orders were made in 2019. He told her that following that judgment he sent cards and gifts to the child approximately every six weeks as well as on special occasions and acknowledged that sometimes there was a lapse between her receiving a gift and sending a response.
He advised Dr J that the mother had no regard for Court orders and was engaged in a systematic estrangement of the child from him and his family supported by her mother. He understood that the child was happy living in the United Kingdom but questioned the extent to which her views were a reflection of her own experience rather than that of her mother and maternal grandmother.
Dr J reports the father was concerned about what he described as an enmeshed relationship between the mother, the maternal grandmother and the child. He indicated that he regarded the maternal grandmother as integral to the actions of the mother and heavily involved in the proceedings. He told Dr J that it was appalling the way they have used the child.
The mother reported to Dr J that following the 2019 orders she had encouraged the child to respond to the father's gifts and presents. She said that the child now has her own phone and there is nothing stopping her making contact with the father or paternal family if she wished.
She said that the child fell in love with the United Kingdom from the moment she arrived and that she was happy and settled in the UK having made friends. She reported to Dr J that a relocation to the United Kingdom was in the child's best interests for a series of reasons including friendship groups and that the weather was more compatible for the child who has an intolerance to heat. She reported that the child felt disheartened by returning to Australia.
The mother reported that she believes the father's actions are perceived by the child as him stopping her from where she wants to live. She said that the child blames her father, and that the child knows that they would not be in Court if her father had not resisted her living in the UK. She told Dr J that she believes the father has “blown the chance he had to have a relationship with [the child]”. She added that she does not envisage any thawing in the child’s attitude towards the father and there would have been a much better chance of them continuing to have contact if she had been permitted to stay in the UK (at paragraph 59).
A telephone interview was conducted with the child’s psychologist Mr BB. He indicated that he had last seen the child in May 2023. He said that the child had been disinclined to engage with him since and his involvement with the family had been limited to checking in with the mother as to the child’s emotional wellbeing. He said that the child’s wishes should be given weight and that he had not seen anything to suggest that she would want to work with her father in therapy. He told Dr J that the child would not be amenable to being forced into a relationship with her father and will shut down if it is demanded of her (at paragraph 65).
Dr J also conducted a telephone interview with Dr DD, the father's psychologist. She recorded that Dr DD spoke positively of the father and his love and concern for his daughter. Dr DD believed that the father had demonstrated an attuned and sensitive demeanour to the child’s wellbeing. Dr DD indicated that she was willing to work with the family to help build the child's relationship with the father.
Dr J records that at the time of her interview with the child she was 14 years. She presented as animated and outgoing although avoided making eye contact. The child told her that she does not want to continue living in Australia and has few friends in Australia. Dr J recorded:
71.… [the child] stated she feels unhappy, angry and sad that she has had to come back to Australia. She added “we're all sad and angry but particularly me”. She said that she sits on her phone in her room since she has returned. She says she does not really want to make new friends or do any group activities.
Dr J recorded that the child told her that she does not want to see her father and that all she wants and needs are her grandmother, her mother, and her dog. She advised Dr J that she did not consider her father or paternal grandparents’ part of her family network and could not see her feelings changing even if she was permitted to live in the United Kingdom (at paragraph 74).
She advised Dr J that she is now so cross with the father that she does not want to accept any gifts from him and does not want to engage with her psychologist any further. Dr J says that she refused to see her father on the day of appointment and refused to accept a gift that the father had brought.
Under the heading “Evaluation” she recorded that the child had been subject to multiple assessments and serial interviewing in a multitude of settings and has spoken repeatedly in a manner “that suggests enmeshment with her mother and grandmother and the manner in which they do everything together” (at paragraph 79).
Dr J recorded:
81.The Court needs to be mindful that [the child] is a child who has been through exceptional circumstances. Her life time has been punctuated with protracted family law proceedings and she possibly has no memory of a time when proceedings were not afoot. The risk of [the child] being a victim of systems abuse cannot be discounted and has been a concern raised in previous reports in this matter.
82.[the child] has been empowered, from a very young age, to have a voice which has been given much more weight than was age and developmentally appropriate. She continues to express views that she does not want to see her father. Indeed, she has indicated in her most recent assessments that she does not consider him a significant other and denied that she has relationships of any importance to her with him and his family. Although she was unable to articulate why she was not spending time with [the father] to [Ms LL], the historic narrative in this family has been that [the child] was the victim of child sexual assault and was afraid of [the father]. Even if those views are not as stridently articulated now, [the mother] continues to perpetuate a narrative that [the father] espouses a misogynistic attitude towards her, her mother and women in general. Their hostile text exchange in 2022 would have been a significant setback in any change of view the parties might have had of each other.
Dr J recorded that even if her views are as articulated by the mother there seems to be some congruence between her articulated views and her lived experience in the United Kingdom. Dr J opined that it was likely that being in an environment where the mother was less hypervigilant and relaxed gave the child permission to flow more into the community recording that there is a strong correlation between the contentment of primary caregivers and the wellbeing of children (at paragraph 83).
Dr J was sceptical of any positive message that the mother may express about a relationship between the child and her father, describing the mother as likely to:
84.… capitulate to any resistance [the child] expresses to advancing a relationship with her father and given the current climate of [the child]'s views towards [the father] it is difficult to envisage that changing in the near future.
Dr J reported:
85.[The child] is now over 14 years old. She has had a diagnosis on the Autism Spectrum which has been argued by [the mother] as limiting her capacity to be enrolled in mainstream education on Australia. She is a complex adolescent. On the one hand, there are indicators that she is an articulate child who has always had a strong vocabulary. This was noted by [Mr HH], [Ms LL] and [Mr BB] in their reports. She presented in a similar manner for the interviews for this assessment. She is of an age where her views would need to be given considerable weight. Juxtaposed alongside this, there are also indicators that her level of social maturity will have been compromised by the closed family system in which she has spent her childhood. [The child]’s wishes do echo some of those voiced by her mother. The enmeshment with her mother and grandmother would make it difficult for her to have views that differ too far from those of the significant others in her life.
Dr J observed that while the father has been conscientious and unrelenting in his attempts to forge a relationship with the child, it has met with minimal success (at paragraph 89).
Dr J reported:
95.Any decision to effect a change in residence, in the light of the history of [the child]'s living arrangements is likely to be extremely destabilising to her. Placement in an environment that would be totally foreign with a parent who is a relative stranger, albeit that [the father] perceives that not to have been of his making, is possibly going to evoke a highly rejecting response from [the child].
96.Even if [the mother] is established to have acted in ways that have been underhanded and non-transparent, [the child] has been highly dependent on her mother and grandmother to care for her and being removed from their full-time care would most likely give rise to a massive regression in her well-being. [The father] while buoyed by previous findings about his parenting potential proposes to draw on the assistance of his therapist, [Dr DD] with whom he has been engaged for two years and family and friends to be able to overcome the hurdle of settling [the child] into his care and into a local school. [The father]'s capacity to contain and support [the child] is greatly untested.
97.It is without doubt, that being placed in her father’s care, possibly with a block out period to her mother is likely to be extremely disruptive for [the child] and not an option that would be recommended. It is likely to have enormous implications for her emotional and psychological well-being.
Of the trip to the UK in 2021, Dr J opined that as a consequence of the mother possibly feeling happier it is likely that it created a better space for the child (at paragraph 98). She opined that the child presented life in the United Kingdom in extremely black-and-white terms but that it was not uncommon for adolescents to take such a polarised position.
Dr J opined:
101.One of consequences of the litigation is that [the child] is continuing to be a participant in the tug-o-war between the adults. She was placed in the centre of the dispute again by being subjected to repeated interviewing to advocate to continue to reside in the U.K. including some ambiguity about how she managed to be interviewed by [Mr HH]. She was given the impression that her views would be honoured. Unfortunately, [the child] felt disappointed that her views were not heard and that she has in some way failed in her mission. [the child] projects blame onto her father for having put her through further duress and it is a view that is not likely to be dispelled in the mother’s household. [the child] seems intent on punishing [the father] for not acceding to her request to remain in the U.K.
…
103.Orders which accede to [the mother]’s demands are likely to leave [the maternal grandmother], [the mother] and [the child] feeling happy and satisfied. There was a sense of entitlement from [the mother] and [the child] that should occur. Realistically, if the Court adopts this path it is unlikely that [the child] will ever return to Australia and therefore there would be an impact on the access she would have to resuming a relationship with her father should she choose. Indeed, it is likely that even if the relocation to the U.K. is postponed, [the maternal grandmother] and [the mother] will eventually choose to leave and [the child] will accompany them. Unfortunately, whether [the mother] and [the child] do or don't relocate is probably going to make little difference to whether [the child]'s attitude to her attitude to her paternal family or father will change in the immediate future.
Dr J recommended that the child should continue to live with her mother and that if the Court does permit relocation the timing be left to a judicial determination.
Dr J was cross examined by the ICL, the mothers counsel and the father. During her cross examination she indicated that she had observed a change in the child’s presentation between her interview for the purposes of the 2019 hearing and her interview for the purposes of this hearing. She contended that the child spoke with more authority and engaged with her in a way that was different to her previous engagement and presented in a more robust and positive manner.
She indicated that it was essential for her development to form relationships outside of the home and that she regarded the engagement of her with an outdoor activity as a positive step in that regard. In relation to her views about moving to the UK she was able to articulate those views from her point of view and how it met her needs and provided a reasonable basis for doing so. She contended that it would be remiss of a Court in dealing with a child of her age not to give considerable weight to her views albeit that the views she expresses are aligned with those of her mother and her grandmother, that there is a degree of enmeshment between them and that for a long time the child had a very age-inappropriate say in many aspects of her life including spending time with her father. The child’s diagnosis of ASD was just one of many factors that the Court needs to consider in making its final orders.

She supported a position where there should be some video contact between the father’s family including his parents and the child which would enable the father and his family to say goodbye. She was less enthusiastic about a face-to-face visit and could not envisage how it might happen and that it was heavily reliant upon the maternal family supporting and facilitating it. She could not say whether there was a benefit to the child, but in an ideal world it would be appropriate. She agreed that if the child did attend face-to-face sessions, it would be an important step in her being able to rewrite a script about her father. However, the father’s proposal of three visits of four hours was one that she did not accept and if it was to occur, she contended that it should be at most an hour.
Notwithstanding various questions posed to her by the father, she did not think that the father had been totally expunged from the child’s life. She did not support the father’s proposal for what he described as a “deep-end exposure model” where the child was removed from the mother and placed in his care. In answer to questions from the father about this approach she said that for a child of her age it was not a viable process and one she could not support. For a child of her age, it would be devastating for her and could result in a total disintegration of the child.
She said that the trouble with the father’s proposal was that there was a total vacuum of an attachment relationship between the child and the father. The father asked her questions about other cases where a child had been removed from an “alienating parent”. Dr J accepted that she was aware of such circumstances but in her view that would need to happen with a much younger child. She agreed that there were lots of signs of alienating behaviour by the mother and the maternal grandmother and that the mother’s conduct had been emotionally and psychologically abusive towards the child and that that was one of the many considerations that the Court needed to consider. Dr J indicated that she would struggle to imagine how the father would cope with the fallout involving the child moving into his care.
While the father did not accept the recommendations of Dr J there was no serious challenge to her opinions. Much of his cross-examination amounted to a validation of already expressed views that the mother and maternal grandmother were not supportive of a relationship between the child and the father and that the relationship between the mother, the maternal grandmother, and the child was enmeshed. Dr J agreed that there were elements of alienation in their conduct but did not accept the central premise of the father’s approach that there needed to be a removal of the child from the care of the mother.
I accept the opinions of Dr J.
SUBMISSIONS OF THE ICL
The ICL submitted that the Court’s obligation was to quell the controversy between the parties and make orders that ends as much as is possible the litigation between the parties. The ICL submitted that there is little or no factual dispute. The ICL contended that there was no evidence to support either of the proposals of the father. He submitted that the evidence of Dr J was clear that the father’s proposals were inconsistent with her view and the child’s welfare.
The ICL supported an order for the mother to relocate the child’s residence to the UK but such order should be conditional on the child spending not less than three Microsoft Teams events of not less than ten minutes each with the father. The ICL submitted that the evidence on balance does not support a face-to-face meeting between the child and the father and the paternal grandparents but that the Court should make an order for the child to spend time with the father in accordance with her wishes. The ICL indicated that he was prepared to explain the Court’s orders to the child following judgment.
SUBMISSIONS OF THE MOTHER
The mother’s counsel adopted the ICL’s submissions and the ICL’s proposed orders save that the mother did not consent to an order that the relocation should be conditional. The mother’s counsel otherwise relied upon the submissions in the mother’s Case Outline.
SUBMISSIONS OF THE FATHER
The father submitted that very little had changed for the child since orders had been made. He contended that the only real change is that the child is older and that she has continued to grow up without her father. The father submitted that there is no positive outcome for the child and contended that Baumann J’s orders had continued to perpetuate the separation of the child from her father.
He submitted that the mother had made a clandestine attempt to move to the UK without his consent. He contended that the Court should conduct a full welfare analysis in relation to the benefits to the child of relocating outside Australia. He contended that the evidence revealed, consistent with Dr J’s evidence, that the mother’s parenting was emotionally and psychologically abusive of the child and he submitted that she does not have the capacity to care for her daughter.
The father submitted that he can, with the assistance of his parents and Dr BB, appropriately care for the child and that it is in her best interests that she lives with him. He referred to various cases where a Court had attempted a similar removal of a child. He said to do that would take the pressure off the child and enable her to engage with the other half of her identity.
In the event that the Court declined to make his primary orders, he contended that the alternative orders were appropriate. He submitted that face-to-face contact with the child was necessary, and he did not contend that it should be regarded as an opportunity to say goodbye but rather one that enabled the creation of memories that would encourage her to want to have a relationship with her father. He also contended that it might provide an ability for further meaningful contact and dialogue. He contended that a ten-minute video chat could not be regarded as meaningful but accepted that it could be a productive precursor to more time. He contended that the orders in his alternative Minute of Order were ones that were in the best interests of the child.
The father in his submissions also sought to rely on a number of cases that he contended resulted in a change of primary care in circumstances where there had been parental alienation. I have had regard to each of the cases and find that no matter of principle arises in any of the cases, rather, they are fact specific.
THE ADVANTAGES AND DISADVANTAGE OF EACH PARTIES PROPOSAL
The father’s primary proposal for the child to live with him would, according to the father, have the advantage, assuming its implementation were possible, of the child being able to maintain a relationship with both parents and to realign the negative view the child holds of the father and paternal family. The father contends it also has the advantage of minimizing or reducing the influence of the mother and maternal grandmother upon the child which he contends is pervasive and would see the child enrolled in school rather than home schooled.
I am satisfied that the father has an enormous amount to offer the child and would try his hardest to provide a positive and safe environment for her. I am not satisfied that the child is at any physical or sexual risk of harm in the father’s care. I reject any suggestion of the mother that same exists. Such suggestions are based entirely on a distorted and perverted view of circumstances that provide no foundation for such a conclusion.
Irrespective of the perceived advantages the proposal has significant disadvantages.
Subsequent to the parties’ separation, the child has not spent time with the father since late 2015. The father’s proposals are inconsistent with the recommendations of Dr J and contrary to the strongly held views of the child which have been consistently expressed for a significant number of years.
The father’s proposal was explored by the ICL in cross examination. It involves a new living environment with a new primary carer. Her new primary carer conceded that he will have to work so she will also have a very different home environment. It involves the child engaging with a new therapist she doesn’t know and attending school she has never attended. The father conceded that the child will also have to accommodate a different parenting style with the father describing himself as more authoritarian than the mothers. The father acknowledged that it would be a complete change for the child. Dr J did not think the father could contain the child’s obvious distress and potential disintegration upon separation from her mother.
The father has not explained how his proposed orders could be implemented. The father provides no mechanism for how the child could safely move to his care without causing psychological harm.
Dr J says that it is likely to be extremely destabilising to her and “would most likely give rise to a massive regression in her well-being” and would be one that could likely have enormous implications for her emotionally and psychologically. Dr J opines that it would be a placement with a parent “who is a relative stranger” to the child and whose “capacity to contain and support [the child] is greatly untested”.
Dr J was not supportive of the father’s alternate position. She opined that any prescriptive orders for time between the father and the child were ones that could not be supported.
The advantages of the mother’s proposal are that it avoids the risks associated with the father’s primary proposal. The mother’s proposal accords with the child’s clearly articulated views and offers the benefits to the child of a happier lifestyle than she currently has in Town G The father conceded that the child and her mother seem to be unhappy living in Town G. Dr J opined that the mother’s proposal also has the advantage that if the mother is happier then it will give the child an opportunity to explore the world outside the enmeshed relationship of the maternal family.
The mother’s proposal to relocate to the UK has disadvantages. It clearly makes more difficult the possibility of physical contact with the father. There is also the possibility that it may not turn out to be all that the maternal family presents it to be. The mother’s application also continues the enmeshment of the relationship between the child and the maternal family and continues to expose the child to emotional and psychological abuse.
APPLICABLE LAW
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires that I am to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
Section 60CG of the Act requires me, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
In this case there is no family violence order in place.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary, relative to the evidence and the risk of harm.
In circumstances where there is a final parenting order in place, the operative provisions of s 65DAAA must be considered.
Section 65DAAA mandates that the Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances since the final parenting order was made and the Court is satisfied that in all of the circumstances taking into account whether there has been a significant change of circumstances that it is in the best interests of the child for the parenting order to be reconsidered. Section 65DAAA (2) provides a non-exhaustive list of matters that the Court may consider in determining whether or not it is in the best interests of the child for the final parenting orders to be reconsidered.
Section 65DAAA merely represents a codification of well-established jurisprudence. It has been clearly articulated in numerous authorities that the Court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances It was sometimes inelegantly described as the rule in Rice & Asplund.
Both parties seek a variation to the final parenting order; the mother for her part seeking an order that the child live in the UK and the father for his part seeking sole parental responsibility and for the child to live with him. I am satisfied that there is a significant change of circumstance; it arises from the mother’s application to relocate the residence of the child to the UK and whilst she seeks, albeit inelegantly expressed, a continuation of the existing orders, those orders of themselves prohibit the mother from removing the child from the Commonwealth of Australia for anything other than a holiday.
The mother’s Case Outline records:
27.The Court should on the evidence make findings of fact that the important change since 2019 is the Mother’s wish to reside with the child in the United Kingdom. Such a wish is on the evidence supported by the child, who [will be 15 next] birthday. These circumstances were not clear and apparent when the matter came before Baumann J in 2019.
28.Further, the Mother has on the evidence of her trial affidavit has established that such a change is sufficient to provoke a new inquiry. In other words, it is submitted that she has established a prima facie case of changed circumstances that would justify embarking on a contested parenting hearing as being in the child’s best interests.
A relocation case is to be determined in the same way as any other parenting case, they are not a special category of case: Morgan v Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe and Another (2012) 48 Fam LR 298 (“Sayer v Radcliff”) at [47]–[48].
The Full Court in Sayer v Radcliffe observed:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80].
It is not as reductive as submitted by the mother’s counsel that I apply 65DAAA in a way where I consider a change of circumstances in the context of the mother’s proposal only and ignore the same change of circumstances in so far as it applies to the father’s proposal. The mother, having asserted that a change of circumstances exists and where she seeks that a relocation of the child’s residence is in the child’s best interest then, consistent with the authorities referred to above, the Court is compelled to consider the competing proposals of both parties on their merits.
In relation to the mother’s desire to live in UK, the Court has an obligation to explore and consider her right of freedom of movement to live where she wishes, and to pursue her legitimate interests and desires. This consideration is even more sharply focused where a primary carer is required to undertake the role of primary care in a place not of his or her choosing. As Kirby J observed in AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”):
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modem family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
(Footnotes omitted)
In Oswald & Karrington (2016) FLC 93-726, their Honours in the Full Court observed in the following terms:
17.Consequently, as emphasised by the Full Court in D v SV (2003) 175 FLR 25 ; 30 Fam LR 91 ; (2003) FLC 93-137 ; [2003] FamCA 280 and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
(Footnote omitted and original emphasis maintained)

While the best interests of the child is the paramount consideration in the making of a parenting order, it is not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires, and the right of a parent to live where they wish is an important consideration.
In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89].
In Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court explained the applicable law in these terms:
27. There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
I will now turn to consider the factors identified in s 60CC(2) to the extent to which I have not otherwise addressed them.
S 60CC (2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)
I am not satisfied that the father poses any risk of physical harm or sexual abuse to the child.
I am satisfied based on my acceptance of the evidence of Dr J that the mother and the maternal grandmother expose the child to a risk of emotional and psychological harm and that a continuation of an arrangement where they have primary care of the child is one that exposes the child to such a risk of harm. I do not accept that it is benign or done unconsciously or that that they are acting protectively.
I am satisfied that they have consciously sabotaged any possibility of a relationship between the child and the father. I have no confidence that they encourage the child to respond to the father or promote him in anything other than a negative light. To the extent that the mother gave sworn evidence that she encourages the child to have a relationship with the father and sees a benefit in one I reject outright as inconsistent with the totality of the evidence.
The mother and the maternal grandmother have trafficked a narrative to the child that is false and mendacious. Examples include the promotion to her of the idea that she is at a risk of harm from the father, that it is the father who is to blame that they had to return to Australia when it comes about as a consequence of a breach of orders by the mother, the peddling of the false narrative that she is a victim of sexual assault and the instilling of the idea that she was tricked into seeing her father in the interviews with Dr J in 2018 when same was not true and admitted by the mother to be untrue.
That said the fathers’ proposals consistent with the evidence of Dr J would also constitute an arrangement that exposed the child to a risk of harm. An arrangement where the child came to live with the father would be one that did not promote her safety in that it exposes her to the risk of psychological harm. Dr J made clear that it would be devasting for the child, that it would be destabilizing for her and she would likely disintegrate. It would be a placement that would be foreign to her and could give rise to a massive regression in her wellbeing.
For the above reasons, I am not satisfied that either party's proposals promote the safety of the child. Both parties hold very strong views about the attitude of the other parent. I am not satisfied that either parent would act protectively by not exposing the child to their strongly held views of the other parent. Dr J, in her 2018 report, observed:
102.… It is important that the dynamics that currently exist in the family where the boundaries in the child and parent subsystems are so poorly defined be corrected. The capacity of either parent to do this is questionable. In the case of [the father], this is because he has had such little insight into [the child]’s world although this is not of his choosing. As for [the mother], it is because of her limited capacity to entertain any information that does not confirm her view of [the child]’s world and needs. Indeed, if the current situation continues, the future for [the child] looks extremely bleak.
Sadly, for the child nothing has changed. To date the propensity of the parties to expose the child to the potentiality and actuality of litigation has remained unabated. Each verbalise laments but show no restraint in their conduct. It is the epitome of actions speaking louder than words. In that respect Dr J observed, in her 2023 report:
81.The Court needs to be mindful that [the child] is a child who has been through exceptional circumstances. Her life time has been punctuated with protracted family law proceedings and she possibly has no memory of a time when proceedings were not afoot. The risk of [the child] being a victim of systems abuse cannot be discounted and has been a concern raised in previous reports in this matter.
I am satisfied that the arrangement that best promotes the child's safety is one where she is removed as far as possible from the ongoing parental conflict and the risk of further systems abuse through litigation. I am confident that orders placing the child in the father’s primary care would almost surely lead to further litigation as too would any prescriptive orders for time as contemplated by his alternate proposal. It is inevitable that there would be issues of enforcement and allegations of noncompliance. Perhaps the only advantage to the mother's relocation application compared with the alternatives proposed is that it has the potential to be the least likely to invoke further litigation and thus to avoid the risk of systems abuse. For that reason, on balance considering all the risks of harm, it is the one arrangement that promotes her safety.
S 60CC(2)(b) Any views expressed by the child.
Dr J reports:
82.[The child] has been empowered, from a very young age, to have a voice which has been given much more weight than was age and developmentally appropriate. …
…
85.[The child] is now over 14 years old. She has had a diagnosis on the Autism Spectrum which has been argued by [the mother] as limiting her capacity to be enrolled in mainstream education on Australia. She is a complex adolescent. On the one hand, there are indicators that she is an articulate child who has always had a strong vocabulary. This was noted by [Mr HH], [Ms LL] and [Mr BB] in their reports. She presented in a similar manner for the interviews for this assessment. She is of an age where her views would need to be given considerable weight. Juxtaposed alongside this, there are also indicators that her level of social maturity will have been compromised by the closed family system in which she has spent her childhood. [The child]'s wishes do echo some of those voiced by her mother. The enmeshment with her mother and grandmother would make it difficult for her to have views that differ too far from those of the significant others in her life.
I am satisfied that the child has expressed for a considerable period of time that she does not wish to see her father. She is clearly supported in that view by her mother and her maternal grandmother. The single expert is of the view that considerable weight should be given to her views. I am also satisfied that given the enmeshment with her mother and maternal; grandmother it would be exceptionally difficult for the child to hold and maintain a view that differs from those of the significant adults in her life who would seek to influence and corrode any possibility of a positive view of the father.
There is much force to the father’s case that because of the enmeshment less weight should be given to the child’s views. I acknowledge the child’s views and recognize at 15 that weight should be given to them, recognizing they are expressed within the rubric of pervasive influence and enmeshment.
S 60CC(2)(c) the developmental, psychological, emotional and cultural needs of the child
The child has a diagnosis of ASD and is described as by Dr J as a complex adolescent. Dr J observes that there are indicators that she is articulate and has a strong vocabulary albeit that there are levels of her social maturity which have been compromised by "the closed family system in which she has spent her childhood" (at paragraph 85).
The mother’s evidence is that the child suffers from acute emotional problems including stress and anxiety and that she is fearful of crowded and noisy places. That said the mother deemed she was capable of flying to and from the United Kingdom.
Whilst the father accepted that the child had received a diagnosis of ASD, he seemed sceptical of the factual foundation on which it was based.
There was little, if any, evidence directed to the child’s cultural needs. It is clear that neither proposals meet the child’s needs for an emotionally and psychologically safe environment in which to grow and develop. Each carry with it significant risk for her psychological wellbeing.
S 60CC(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs
The parties propose a binary proposition in relation to parental responsibility, namely, the mother seeks a continuation of the sole parental responsibility whereas the father seeks sole parental responsibility in the event the child is to remain in Australia with him, or alternatively sole parental responsibility to the mother in the event that the relocation to the United Kingdom is permitted.
I am satisfied that there are significant deficits in the mother's capacity to provide for the child's developmental, psychological, and emotional needs for the reasons given earlier. She has over empowered this child from a young age, she has inappropriately involved her in the litigation in the UK and she poses a continuing risk of emotional and psychological harm to the child. It is clear that the mother sees no benefit to the child having a relationship with her father and thus her capacity to provide for the child's emotional and psychological needs is compromised.
I am satisfied that there are deficits in the father's capacity to provide for the child's developmental, psychological, and emotional needs. The father either ignores or is blind to the evidence of Dr J as to the risks implicit in his proposal. Dr J struggled to imagine how the father would cope with the consequence of the child moving into his care particularly in circumstances where there was a total absence of an attachment relationship. The father provided no plan as to how he would implement his arrangement beyond enlisting the support of his aged parents and a psychologist who has never met the child. There remains as observed by both Tree J and Baumann J a degree of naivety in the fathers understanding of the issues for this child. I am not satisfied that the father has a real appreciation of the risks facing the child on his primary position.
S 60CC(2)(e) The benefit to the child of being able to have a relationship with the child's parents and other people who are significant to the child where it is safe to do so
There is undoubtedly a benefit to a child in being able to have a relationship with both of her parents and extended family. The mother and maternal grandmother have been resolute and persistent in denying to the child any chance of experiencing such benefit.
I am satisfied that in an ideal world there is a benefit to the child of maintaining a relationship with her father and extended paternal family. However, that benefit comes with significant risks and deficits including a continuation of the litigation and undoubtedly an ongoing level of conflict and distress to the child. In that respect I note that Dr J, albeit somewhat reluctantly, did not see a benefit in the continuation of a relationship with the father by way of prescribed forms of face to face contact and was unclear whether even a face to face meeting between the child and the father and his parents was beneficial.
S 60CC(2)(f) anything else that is relevant to the particular circumstances of the child
One of the issues raised by the litigation is which of the proposals is more likely to lead to the possibility of the child re-establishing a relationship with the father. I am not satisfied given the pervasive attitude of the mother and the grandmother that there is anything they will do to rekindle a relationship between the father and the child. Further the child seems to hold a very negative view of her father. In that sense Dr J said:
101.… [the child] projects blame onto her father for having put her through further distress and it is a view that is not likely to be dispelled in the mother’s household. [the child] seems intent on punishing [the father] for not acceding to her request to remain in the U.K.
In her report Dr J reported:
103. … Unfortunately, whether [the mother] and [the child] do or don't relocate is probably going to make little difference to whether [the child]’s attitude to her attitude to her paternal family or father will change in the immediate future.
In view of that evidence, it seems that there is little hope of the restoration of a relationship between the child and the father whether the child is permitted to relocate or not. It is to be recognized and I am sure it will be communicated to the child by the ICL that the father did not propose as an alternative to his primary proposal that the child is not permitted to relocate.
CONCLUSION
If parenting disputes were to be resolved by punishing poor parental behaviour, then the result of my determination would be very different. However, they are not so determined. The Court is charged with deciding what is in the child’s best interests and sometimes as here the implementation of such mandate looks superficially like an endorsement of appalling conduct.
In Baumann J’s 2019 judgment his Honour observed that little had changed in the parenting dynamic. His Honour observed:
32.The dilemma now is frankly almost identical to that faced by Tree J when his trial finished although regrettably the situation is much more difficult for [the child] now (at age [9] years) then it was when she was six years old at the last visit in September 2015. …
Those words ring prophetically true five years later when the child is now nearly 15.
I am not satisfied that either of the fathers’ proposals are in the interests of the child for the reason earlier given. The alternate proposal for prescribed time and video attendance once in the UK will almost certainly be undermined and sabotaged by the mother and maternal grandmother. They were not supported by Dr J, and I have every confidence that the alternative arrangement would fail as every other order has and would just provide the possibility of further litigation. That would be the antithesis of what is in the child’s best interests.
The father recognized that the maternal family appear unhappy in Australia and were apparently happy in the UK. I take account of the evidence of Dr J that there seemed to be benefits to the child of the mother’s apparent happiness when in the UK. I have also had regard to the mother’s right to live in a place of her own choosing.
On balance for the reasons given I am satisfied that the child’s best interests are met by permitting the relocation to the UK.
I am also satisfied consistent with the evidence of Dr J that there should be some video sessions between child and the father and paternal grandparents. The ICL submitted that the relocation should be conditional on there being three 10 minute video sessions between the child and the paternal family. The mother’s opposition was on the basis of it being conditional. I am satisfied that it is in the best interests of the child that these sessions occur, and I am also satisfied that they should occur before the departure from Australia. It will be the child’s only chance of holding an image in her mind of her father and paternal grandparents. The mother and maternal grandmother exert enormous influence over the child when it suits them to do so. They were able to make the child attend upon the ICL notwithstanding the child’s alleged refusal to attend, convince the child to return to Australia when she had said that she would not and convince her to board aircraft despite her apparent fear. I am confident that they will be able to make her attend upon the sessions.
The mothers’ orders sought a continuation of the 2019 orders save where they prevented her relocating overseas. While I will make fresh orders, they will mirror those made in 2019 with some minor amendments to permit the relocation. The mother consented to the father’s order that she provide a summary to him every six months of the child’s progress and accordingly I will make such an order.
I do not propose to make the father’s order that compels the mother to consider the father’s views in the event that she makes a sole parental responsibility decision. It was not made in 2019 and in my view, it is a recipe for further disputation.
The father sought orders for prescriptive time in the UK and Australia. This was not supported by Dr J and has the potential to only invite further conflict and litigation. I do not propose to make such an order. Otherwise, the father sought an order for the child to attend upon a psychiatrist or psychologist in the UK. It was not explained by him why such an order should be made or the benefit to the child of such an order. He did not explore the issue with Dr J. In the absence of evidence, I decline to make such an order.
The father also sought an order that the mother write to the New South Wales Commissioner of Victims’ Rights and request that a recognition payment award on behalf of the child in 2015 be revoked. Whilst the Court could grant an injunction directing the mother to do something, the Court has no power to direct the New South Wales Commissioner of Victims’ Rights to do anything. There was no evidence before me that making the order would have the desired effect. In the absence of that evidence, I decline to make the order.

No submissions were made as to the benefit or necessity for the registration of the orders in the UK or the provision of the report of Dr J and the orders to the UK Child Protection Services and accordingly I decline to make such an order.
I am satisfied that the making of orders in the form referred to above are ones that are in the child’s best interests.
FINANCIAL ORDERS
The father seeks to set aside the financial orders made on 18 June 2015. The father confirmed in submissions that his application was brought pursuant to the provisions of s 79A(1)(c) which provides as follows:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The subsection is conjunctive; two conditions must be satisfied. Firstly, that a person has defaulted in carrying out an obligation imposed on that person by an order and, secondly, in the circumstances that have arisen as a result of that default it is just and equitable to vary or set aside the order and make another order.
As to the first condition, a party cannot rely on their own default unless such default arises as a consequence of circumstances beyond that party's control (see Rohde & Rohde (1984) FLC 91-592; Monticone & Monticone (1990) FLC 92-114).
The father's Further Amended Initiating Application provides particulars which record the following:
Neither party has made a meaningful attempt to enforce the orders to sell the property situated at T Street, Town O in the State of New South Wales (“the property”)
The father carries the onus of proof to demonstrate conduct on the part of the mother amounting to a default in carrying out an obligation imposed by the order.
Whilst the fathers’ application proceeds under s 79A(1)(c) it would appear from his affidavit that he relies upon some general notion of equity such that the orders should not be implemented, and new orders should be made. There is a conflation of two propositions: one is whether the orders should be enforced, the other is whether there should be a discharge or variation of the orders and the making of new orders. One involves the exercise of a discretion not to enforce, the other an application to vary the orders and to make new orders subject to the satisfaction of various conditions. I will address later whether the orders should be enforced.
The father confirmed in submissions that he relied upon s 79A(1)(c) as the basis of his application. He referred the Court to the matters of fact and submission in his affidavit. He accepts that the mother is entitled to a property settlement but that it is unfair that he should only get 30 per cent given that he has paid the mortgage and effected repairs to the property in the period subsequent to separation.
The mother’s counsel in submissions relied upon the Case Outline and contended that the father had attempted to frustrate the sale of the property and that the mother had at all times sought to implement the orders made in 2015, including engaging with the father as contemplated by the orders to enable him to purchase her interest in the property. He submitted that she made further attempts to sell the property between September 2019 and July 2020 as well as attempts following the return from the UK. He submitted that the Court should make an order for the mother to be appointed trustee for sale given the father’s past attitude to a sale of the property.
For reasons that are set out below I am not satisfied the father has demonstrated the mother has defaulted in carrying out an obligation imposed under the orders. Rather than the mother failing to comply with an obligation imposed upon her I am satisfied that it is the father, whether it be through an erroneously held belief or by conscious act, who frustrated compliance with the orders. It matters little whether he did so consciously or unconsciously. The result is the same. The father volunteered in re-examination that he had not approached the sale of the property with “clean hands”. I agree with his descriptor.
The final property orders were made by Tree J on 18 June 2015. The orders provided for the parties within 28 days to take all steps to cause the property to be sold by auction at the earliest possible date at a reserve price to be agreed and failing agreement the reserve price to be determined by the nominee of the President of the Real Estate Institute of New South Wales. In the event that the property was not sold at auction on the first occasion or within three months then the property was to be listed at a reserve of not more than $255,000 with such amount to reduce by $10,000 for each further period of three months the property remained on the market until it reached $235,000. In the event the property was not sold within five months then the property was to be listed for a further auction within six months from the date of the orders. The orders did not provide for what was to happen in the event that the property did not sell at that auction. In circumstances where the orders made no subsequent provision it is difficult to see how the mother defaulted in the carrying out of an obligation imposed upon her thereafter.
I accept the mother’s evidence that by mid-2015 the parties had agreed upon a reserve price. In mid-2015 the mother signed an agency agreement with MM Company. A short time later, the father advised the mother by email that a pest inspection had identified that there was termite activity which needed to be eradicated prior to sale. The mother responded by email in mid-2015 somewhat quizzical about the termite inspection being necessary. She indicated termites had been a matter known to each of the parties before the orders were made. In the same email the mother stated that she would be agreeable to the father paying interest-only payments provided he:
…"actually comply with the orders of June 18 and list the property for auction. I think the earliest possible date (as per the orders) has been and gone but surely it would reduce your risk of bankruptcy to get on with it. Please advise the actual auction date and ask the agent's to publish the auction date on the website" (Mother's email dated [mid]2015).
The mother gives evidence that she thereafter contacted the selling agent about the listing of the property for sale. She says that in late 2015 she received an email from the father advising her that the agent was under no obligation to talk with her as she was not on title and that if she believed he was in breach of orders then the proper thing to do was to file a Contravention application.
In late 2015 the father again wrote to the mother. It is clear from the terms of his email that he had changed his mind as to the reserve price and that the agent was recommending to him a reserve price of $250,000 which he was agreeable to.
The mother did not agree to the reserve and in late 2015 the father emailed her advising that as the parties could not agree on the reserve he would:
… “now seek the determination of the President of the Real Estate Institute of New South Wales in accordance with order 22 and instruct the agent appropriately" (Father's email dated [late] 2015).
The mother says that in late December 2015 she received an email from the father's lawyer advising the property was listed for auction in early 2016 at a reserve of $255,000. The mother says she was not consulted about this reserve and did not agree to it. I accept her evidence which was not the subject of challenge.
The mother gives evidence that she made enquiries with the Real Estate Institute of New South Wales and was advised that it would cost $700 to appoint a valuer to determine the reserve price. Annexed to her affidavit was an email sent by her to the father's solicitor proposing that the parties share the cost of the valuation for the purposes of fixing a reserve. The mother says she did not receive a response to that email. I accept her evidence which was not the subject of challenge.
In early 2016 the mother was admitted to hospital for various tests and eventually diagnosed with a medical condition. She gives evidence that in early 2016 she was transported to D Hospital for surgery and treatment.
In mid-July 2016 the mother retained solicitors following upon the father's application to vary the parenting orders. The father by email dated mid-2016 advised the mother's solicitor that the auction of the property was:
… “halted because of errors in the orders specifically relating to the mortgage. … I am advised that until the orders are amended that the sale of the property cannot proceed. It is, however, still listed with an agent and there have been several inspections recently" (Father's email dated [mid] 2016).
In late 2016 the father again emailed the mother's solicitor and advised that the property remained listed with MM Company as well as on websites. The father's email also advised of various structural problems with the property including a reference again to termites and advised as to various things that needed to be done to make the property more appealing to prospective buyers. The father repeated that there were errors in the orders that were an impediment to any sale proceeding and that the parties remained in dispute about the reserve price.
During his cross-examination the father conceded that in late 2015/early 2016 when the matter returned to Court following the failure of the 2015 parenting orders, he believed that the Court would revisit the property orders if he were successful in seeking orders for the child to live with him. He also said that in early 2016 he discovered that there were problems with the orders in relation to the identity of the mortgagee that needed to be remedied under the slip rule. He said that the property could not be sold until that issued was rectified. It is clear from reading the mother’s evidence as a whole that she did not agree with that position.
I am satisfied that the father unilaterally determined that the property could not be sold. I am not satisfied that the mother defaulted in any obligation imposed on her by the orders prior to the making of the orders by Le Poer Trench J.
On 23 May 2017 the matter came before Le Poer Trench J. The orders were amended to remedy what was asserted by the father to be a defect in the original orders. On 25 May 2017, his Honour suspended the operation of the June 2015 orders. The father contended, erroneously, that the effect of that order was to suspend the operation of the financial orders pending a determination of his then application in relation to primary care of the child.
Acting on that contention, the father took the property off the market without the agreement of the mother. The father persisted in maintaining this position until the final determination by Baumann J. It is clear from a reading of the mother’s evidence as a whole that she did not agree with the father’s interpretation.
In August 2018, the parties’ competing application for variation of the parenting orders were heard by Baumann J. There continued to be negotiations between the parties in relation to a listing of the property. The father unilaterally listed the property at an asking price of $260,000 contrary to the mother's agreement and contrary to the market appraisal that the parties had obtained which indicated that the property should be listed between $200,000 and $220,000. I infer from the father's insistence, contrary to the advice of the listing agent, that the property should be listed at a significantly higher price that he wished to avoid a sale and retain the property.
On 11 February 2019, Baumann J made orders pursuant to the slip rule to remedy the perceived defect arising as a consequence of the orders made some two and-a-half years earlier. Dissatisfied, the father appealed.
The father's appeal was dismissed and the Full Court record in their judgment the following:
92.The father submitted in the appeal that any implementation of the property settlement order made on 18 June 2015 now, four years later, would cause him “severe financial hardship and emotional distress”. It may, but the mother is entitled to the fruits of the property settlement order, of which she has been deprived for more than four years. …
No part of the father’s contention before the Full Court was directed to a default on the part of the mother.
In late 2019, the father sent the mother a photograph of an advertisement for the property listed for sale at $265,000. The father had not consulted the mother about the listing of the property at that price. The listing at that price was contrary to any agreement. in late 2019 the mother wrote to the father advising that the price was too high and requested that he either list it at the recommendation of the agent or agree to contacting the Real Estate Institute of New South Wales.
A short time later, the mother again wrote to the father's solicitor proposing that the father purchase her interest in the property, failing which she would take steps to enforce the current orders or failing which bring an application pursuant to s 79A to vary the orders to allow for a private sale.
It would appear that following the 2019 orders and until early 2021 there were negotiations between the parties in an endeavour to try and reach an agreement to permit the father to retain the property by a payment to the mother.
In mid-2021 the mother travelled to the United Kingdom and ultimately was the subject of orders for her to return the child to Australia. She returned in mid-2022.
The father conceded that by mid-2022 the mother was again agitating a sale of the property. The father in his affidavit said:
304.In [early] 2022, my [Town O] property was appraised with a market value of $370-400,000 by [an agent], prior to incurring storm damage. [Some months later, the agent] contacted me saying she had been approached by [the mother] (subsequent to her return to Australia), requesting information on the property's market value. [Annexed hereto and marked with [MRG] 47 is appraisal letter from [MM Company]].
(Original emphasis)
On 15 December 2022, orders were made by a Senior Judicial Registrar requiring the father to meet the mortgage payments on the property as well as council and water rates and maintenance levies and for the father to file an Amended Initiating Application setting out the orders that he sought pursuant to s 79A.
The father in his affidavit said:
305.On 15 December 2022 at an Interim Hearing before Senior Judicial Registrar [...] the mother sought my consent to her proposed order that I be restrained from further encumbering, dealing with or otherwise disposing of any interest in the [Town O] property, and a further order that I be solely responsible for all outgoings referable to the [Town O] property, including but not limited to mortgage payments, council rates, water rates, and maintenance levies. I consented to this, as it was already the practical reality of the situation. This order effectively prevents me from complying with the 2015 property orders.
The orders did not have that effect.
The orders of the Senior Judicial Registrar also directed the father to file and serve an affidavit annexing a Statement of Claim setting out the statutory basis relied upon by him for the s 79A orders that he sought and the material facts and particulars.
Notwithstanding the terms of those orders the father did not comply with the orders and on 20 July 2023 the time for compliance with the orders made 15 December 2022 was extended to 4.00 pm on 18 August 2023. The matter came before the Court again on 7 September 2023 consequent upon the father failing to comply with the earlier orders. Further orders were made on that date for the father to file an Amended Application.
The father did not comply with the orders until 6 October 2023.
I am satisfied as the father asserts that he has not approached the implementation of the financial orders with clean hands. I am satisfied that the mother has remained consistent in seeking compliance with the orders including providing the father an opportunity to acquire her interest in the property at an agreed sum. I am not satisfied that the father has established that the mother has defaulted in carrying out an obligation imposed upon her by the June 2015 orders.
The father's application pursuant to s 79A will be dismissed.
There remains for consideration the mother’s application for enforcement.
The mother seeks various orders as set out in her Amended Response sealed 2 November 2023 by way of enforcement. The orders were amended in the form of Exhibit 2. The proposed orders seek she be appointed trustee for sale of the property (in circumstances where she is not a legal owner) for the purposes of effecting a sale of the property as well as various mechanical orders to give effect to a sale. She seeks an injunction restraining the father from inhibiting the sale and providing for vacant possession upon completion. She also seeks various orders in relation to the proceeds of sale.
The father did not raise an objection as to the form of the orders.
The mother’s orders are mechanical in nature and provided that they do not effect an outcome inconsistent with the orders made by Tree J in June 2015 they do not constitute a variation pursuant to s 79A (see McDonald and McDonald [1976] FamCA 29; Bailey & Bailey (No. 2) [2018] FamCA 632).
I am satisfied that orders for enforcement should be made. The mother has been deprived of her entitlement pursuant to the June 2015 orders. There is no fact or circumstances relevant to the exercise of discretion not to enforce the orders. The father has had the benefit of occupation of the property for nine years subsequent to the making of the orders. The orders provided for the rental income of the property to be applied to the outstanding mortgage and expenses relating to the sale pending the auction. The father assumed occupation thereby depriving himself of the rent to be applied to the mortgage. That was a decision made by him, but he cannot be heard to complain that he has made mortgage payments subsequent to that date. I note the reference earlier to the observations of the Full Court as to the mother being deprived of her property settlement. Those observations are as apposite today as they were in 2019.
The mother’s case that she should be appointed as trustee for sale arises as a consequence, she contends of the actions of the father in frustrating the sale of the property. I have earlier referred to this and the father’s concession that he has not conducted himself with clean hands. I agree with his self-assessment. I am satisfied that steps need to be taken to bring to completion the sale of the property. I am however prepared to give the father a further 90 days to effect a sale of the property. If it is not sold within that time then the mother will be appointed trustee.
I will make orders to this effect.

I certify that the preceding two hundred and twenty-six (226) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 1 August 2024

File number(s):	LEC 216 of 2022
Judgment of:	SCHONELL J
Date of judgment:	1 August 2024
Catchwords:	FAMILY LAW – PARENTING – Relocation – Where the mother sought to permanently move to the United Kingdom with the child – Where the father opposed the relocation to the United Kingdom – Where the mother has unilaterally removed the child to the United Kingdom on a prior occasion – Where the High Court of Justice in the United Kingdom ordered the child be returned to Australia – Where the child has not spent time with the father since 2015 – Where final parenting orders were made in 2015 and again in 2019 – Where there is a complex and lengthy history involving high conflict between the parties – Where the Court determined that, on balance, the child’s best interests are met by permitting relocation FAMILY LAW – PROPERTY – Where the mother sought enforcement of financial orders made in 2015 and to be made trustee for sale of the property – Where the father sought orders pursuant to s 79A(1)(c) setting aside the consent property orders and for the Court to make new orders pursuant to s 79 – Where the Court determined that previous property orders should be enforced and that the mother after a further 90 days be appointed as trustee of sale for the property.
Legislation:	Family Law Act 1975 (Cth) Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”)
Cases cited:	AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bailey & Bailey (No. 2) [2018] FamCA 632 Franklyn & Franklyn [2019] FamCAFC 256 McDonald and McDonald [1976] FamCA 29 Monticone & Monticone (1990) FLC 92-114 Morgan v Miles (2007) FLC 93-343; [2007] FamCA 1230 Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152 Rice & Asplund (1979) FLC 90-725 Rohde & Rohde (1984) FLC 91-592 Sayer v Radcliffe and Another (2012) 48 Fam LR 298 [2012] FamCAFC 209 U v U (2002) 211 CLR 238; [2002] HCA 36 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	226
Date of hearing:	2 – 4 July 2024
Place:	Sydney
The Applicant:	Litigant in person
Counsel for the Respondent:	Mr Jackson
Solicitor for the Respondent:	Mr Bawa, Justice Family Lawyers
Independent Children’s Lawyer:	Mr Holmes, Holmes Donnely & Co. Solicitors

LEC 216 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GRAINGER Applicant
AND:	MS GRAINGER Respondent
INDEPENDENT CHILDREN'S LAWYER Intervener

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	1 AUGUST 2024