Hansen & Kane - [2022] FedCFamC2F 949

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hansen & Kane [2022] FedCFamC2F 949

File number(s): NCC 3876 of 2021

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 19 July 2022

Catchwords: FAMILY LAW – PARENTING – Review of a registrar’s decision – Where the mother unilaterally relocated with the child in September 2021 – Where the registrar made orders for the child to live with the mother and reside in her new residence – Where the father seeks a review of the totality of the registrar’s decision – Where the father seeks for the mother to return with the child to their former location or for change of residence if the mother remains residing in her current residence – Where it is not in the best interests of the child to relocate with the mother – Review application dismissed

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA 69ZW

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07

Children and Young Persons (Care and Protection Act) 1998 (NSW) s 245D

Cases cited:
Attwill & Marden [2018] FCCA 1401

Banks & Banks (2015) FLC 93–637; [2015] FamCAFC 36

Barendregt v. Grebliunas [2022] SCC 22

Feiteiro & Feiteiro [2019] FamCA 647

Henley & Henley [2019] FamCA 101

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

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

Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935

Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Stott & Holgar & Anor [2017] FamCAFC 152

Stringer & Nissen (No. 2) (2019) FLC 93-922; [2019] FamCAFC 185

Tomko v Palasty (No 2) (2007) 71 NSWLR 61

Division: Division 2 Family Law

Number of paragraphs: 158

Date of hearing: 6 May 2022

Place: Sydney (via videolink)

Solicitor for the Applicant: Harpers Legal

Solicitor for the Respondent: Winder Lawyers

ORDERS

NCC 3876 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HANSEN

Applicant

AND:
MS KANE

Respondent

order made by:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

19 July 2022

THE COURT ORDERS THAT:
1.The Application for Review filed on 7 February 2022 is dismissed.

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

This matter concerns an application for review of orders made by a senior judicial registrar on 19 January 2022 in respect to parenting arrangements for the child, X (“the child”) born in 2020, who is now a little over two years old. The main issue concerns whether a relocation order should be made requiring the respondent mother, Ms Kane (“the mother”) to return the child to live in the City B region of New South Wales.
The child’s young parents, her mother and the applicant father, Mr Hansen (“the father”) were engaged in a brief relationship during which the mother became pregnant. The parties separated prior to the child’s birth and the child has been living with the mother. The father initially spent limited time with the child comprising of a few hourly visits, approximately three or four times per week. In August 2020 the parties reached agreement for the child to spend time with the father each week from 2:45 pm on Friday until 2:45 pm on Sunday. This is in circumstances where the father has continued to reside with his parents, the paternal grandmother and grandfather.
That arrangement continued for a little over a year until September 2021 when the mother relocated to Town C in northern New South Wales. The mother stated that she moved residences as a result of a relative making a three bedroom house available for her to live in with the child. Prior to that house becoming available, the mother had been in transient accommodation with the child.
The orders made by the senior judicial registrar provided for the mother to continue living in Town C and for the child to spend time with the father for one week per month in City B. The mother is responsible for transporting the child to and from City B.
The father’s application for review seeks orders for the mother to return with the child to City B. He proposes that the previous parenting arrangements that were agreed to in August 2020 be resumed. Alternatively, in the event of the mother not returning with the child to City B, he proposes that the child live with him and spend time with the mother for one week each month unless otherwise agreed between the parties.
The mother opposes the father’s application and contends she would suffer significant hardship if she were forced to abandon the accommodation that has become available for herself, the child and the child’s new half-brother, who was born this year.
For reasons which I explain below, I have dismissed the father’s application for review on the basis that he has failed to establish that the mother is lacking in appropriate parenting capacity. I am further satisfied that requiring the mother to return to live in City B would result in her being placed in a situation where she would find it difficult to find appropriate accommodation for herself and the child. That outcome would not be in the best interests of the child.
Background
The mother was born in 1997 and is 24 years of age. The father was born in 1998 and is 24 years of age.
The mother and father had a short relationship between March 2019 and June 2019, during which time the mother fell pregnant. The mother contends that the relationship was of slightly longer duration. That different account of dates of separation is not material to this decision save to the extent that the mother contends that, during the course of the parties continuing relationship, the father engaged in acts of infidelity causing her acute distress.
The parties’ separation was acrimonious. The father contends that, in the period subsequent to the parties’ separation the mother engaged in shouting and dysregulated conduct with him. The father further contends that the mother engaged in obsessive behaviour in attempting to repeatedly contact him via electronic means and arriving at his house unannounced. Further, he contends that the mother has engaged in acts of self-harm. In those respects, the father presents this behaviour as evidence of the mother suffering mental illness and lacking necessary parenting capacity.
The mother acknowledges that there was volatility in the parties’ relationship and that they would periodically shout at each other during arguments. The mother further acknowledges on one occasion, pulling over the car while she was driving and demanding that the father get out of the car because he was upsetting her. The mother acknowledges that there were times when her conduct was inappropriate and notes that it was in a period of considerable distress in circumstances where she was experiencing physiological changes associated with her pregnancy, she had insecure accommodation and she was concerned about the father’s infidelity. The mother denies that she has engaged in any acts of self-harm.
The father contends that at some point in September 2019 he decided to break off contact with the mother as a result of advice from the mother’s father, the maternal grandfather, to the effect “it’s best that you avoid her, because she is going to keep going on like this” (paragraph 30 of the father’s affidavit filed 17 January 2022).
The father and the paternal grandmother made several reports to police concerning the mother’s conduct that occurred subsequent to the parties’ separation and an application was made by police for an apprehended domestic violence order. On 1 October 2019 an interim order was made naming the father as a person in need of protection.
In late 2019 the father commenced a new relationship with Ms D (“Ms D”). The father and Ms D live with the paternal grandparents in their family home.
In 2020 the child was born.
Subsequent to the birth of the child, the mother and the paternal grandmother engaged in various text message exchanges in which the paternal grandmother offered support to assist the mother with her new baby. The paternal grandmother has not filed an affidavit in these proceedings, however, the father refers to that communication between the mother and the paternal grandmother as reflecting an inability by the mother to cope with motherhood.
On 4 July 2020, the mother engaged in instant messenger exchanges with Ms D, expressing her discontent with the fact that the father was now in a relationship with Ms D and making derogatory comments about the father. The mother has sent further derogatory messages to Ms D in the period subsequent to that time.
As outlined above, in August 2020 the parties attended family dispute resolution, reached an agreement and signed a parenting plan for the child to spend time with the father each week from 2:45 pm on Friday until 2:45 pm on Sunday.
The mother recounts that approximately three weeks before she moved to Town C in late September 2021, the mother indicated, through a phone call with the father, that she was considering moving with the child to Town C in northern New South Wales. She advised this was because a relative was in a position to make a house available for her to live in with the child.
On 17 September 2021, the father states the he was informed by the mother that she was relocating the following day to Town C. He spent approximately 30 minutes with the child at the home of the mother’s aunt.
On 18 September 2021, the mother relocated with the child to Town C. The mother facilitated the father having FaceTime with the child in the period subsequent to moving to Town C.
The father contends that during a FaceTime conversation with the child on 19 October 2021 he observed a bruise on the child’s face which resulted in the paternal grandmother making a report to police and the New South Wales Department of Communities and Justice (“DCJ”) on 20 October 2021. The mother contends that the bruise occurred when the child fell over at a time that he was being minded by his aunt.
On 21 October 2021, the police attended at the mother’s residence in Town C to conduct a welfare check on the child. The police were satisfied with the mother’s explanation that the child had sustained a bruise to his face when he fell while playing on play equipment. The police were not concerned with the safety of the child in the mother’s care.
On 25 October 2021, solicitors instructed by the father sent a letter to the mother demanding that she return with the child to City B and giving notice that, in the event that she failed to do so, the father would commence proceedings seeking orders to that effect.
In the absence of receiving a response from the mother, at the request of the father, police attended the mother’s residence on 1 November 2021 to conduct a further welfare check on the child. The father contends that the police reported that “when we asked her why she had ceased communication she said it was because you have these Family Law Court things happening.” I will subsequently explain why I have concern for the pattern of conduct on the part of the father and the paternal grandmother in repeatedly making reports challenging the mother’s parenting capacity to the police and DCJ.
On 22 November 2021, the father filed an application in the Federal Circuit and Family Court of Australia (Division 2) seeking an urgent recovery order of the child and proposed final orders for the child live with him and that he have sole parental responsibility.
On 25 November 2021, the mother was before the Town E Local Court in response to an application for an apprehended domestic violence order initiated by her then partner, Mr F (“Mr F”) in respect to events which are alleged to have occurred on 21 November 2021.
On 1 December 2021, consent orders were made by a senior judicial registrar of the Court providing the father with two periods of time with the child in December 2021. The orders also provided for electronic communication with the child on Monday, Wednesday and Friday at 6:00 pm. The senior judicial registrar also requested a report from the DCJ pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) as well as the production of documents from the NSW Police Force pursuant to s 245D of the Children and Young Persons (Care and Protection Act) 1998 (NSW) .
On 19 January 2022 the orders which are the subject of this review application were made by a senior judicial registrar. Those orders are as follows;
1.   The child [X] born [in] 2020 (“the child”) live with the mother.
2.   The mother and child live in [Town C].
3.   The child spend time with the father as agreed but failing agreement as follows:
a.   For one week each calendar month commencing at 12.00 noon on the day that makes one week before the end of the month and concludes at 12.00 noon on the last day of the month;
b.   If the father travels to [Town C] and provides the mother with one weeks' notice the mother will ensure the child is available to spend time with the father.
4.   The mother is to authorise any treating medical practitioners to inform the father of any medical treatments or medications.
5.   All changeovers that occur in [City B] occur at [Suburb G] McDonald.
6.   If the father travels to [Town C], changeover occur at the mother’s residence.
7.   The father have liberal Telephone/ Face time communication with the child up to 5.00pm.
8.   All extant interim applications are dismissed.
In 2022, the mother gave birth to her second son, H. The father of H is Mr F. The father contends that the mother continues to live with Mr F in a volatile relationship that includes family violence. This, he contends is not in the best interests of the child. Comparatively, the mother acknowledges that she has had arguments with Mr F which included shouting and the mother throwing cutlery at him on one occasion. The mother further acknowledges that after giving birth to H there was an incident between herself and Mr F which resulted in Mr F removing H from her care. The mother states that issue was resolved and H was returned to her care shortly after. The mother states that she is not in fact living with Mr F but that she remains on good terms with him and speaks to him on a daily basis. The mother further states that H spends time with Mr F as agreed between him and the mother. The mother denies that the child is exposed to any risk of harm including being exposed to or witnessing family violence in her household.
Unfortunately, H was diagnosed with having an illness that required hospitalisation following his birth. The illness was of such significance that both the mother and H were airlifted from northern New South Wales and transported to City B for H to obtain specialist treatment. It was not disputed that it was necessary for the mother to remain in proximity to the hospital in City B in the weeks following the treatment to ensure that she was able to access additional treatment for the child.
Contrary to that which is asserted by the father, the mother denies that her permanent place of residence is now City B. The mother states that she has been staying with a relative in order to be close to the treatment required by H but that she intends to return to Town C once that program of treatment is completed.
The mother states that she is prepared to relocate with the child back to City B if she is able to obtain suitable accommodation. The mother states that she has sought the assistance of various agencies in an endeavour to find that accommodation however, to date, the assistance she has obtained has only been in respect to short-term accommodation. The mother states that while she has sought assistance from the father in respect to obtaining accommodation in City B that he has indicated he is not in a position to assist in that respect. This was confirmed by counsel for the father during the course of the proceedings.
On 23 February 2022, orders were made for the parties to attend upon a Court Child Expert for the purpose of obtaining a Child Impact Report. The matter was otherwise adjourned to a date to be advised of the parties in early August 2022.
The application for review was initially listed for hearing on 18 March 2022 but, to enable the parties’ to provide updated evidence consequent to the mother giving birth to H, the matter was adjourned by consent on that day until 6 May 2022.
Documents relied upon
The father sought to rely upon the following;
·Application for Review filed 7 February 2022;
·Affidavit of the father filed 17 January 2022 (“father’s January affidavit”);
·Affidavit of the father filed 29 April 2022 (“father’s April affidavit”);
·Case outline filed 19 January 2022 and
·Tender bundle received by chambers on 6 May 2022.
The Court was advised that the affidavit filed by the father on 17 January 2022 incorporates the contents of the affidavit of the father filed when commencing proceedings on 22 November 2021 but includes relevant updated events to the date of filing on 17 January 2022. This is relevant insofar as the mother’s affidavit response to matters raised in the father’s affidavit filed in November 2021.
The mother sought to rely upon the following:
·Response to Final Orders filed 17 January 2022;
·Affidavit of the mother filed 17 January 2022 (“mother’s January affidavit”);
·Affidavit of the mother filed 29 April 2022’
·case outline filed 5 May 2022 and
·case outline filed 19 January 2022.
The application for review
In his application for review filed on 7 February 2022 the father seeks a review of all orders made by the senior judicial registrar and, in their place seeks the following orders:
1.That within 14 days of the date of this Order, the mother cause for the child [X] ("[X]"), born [in] 2020 be returned to the [City B] area.
2.That failing compliance of Order 1 above, T pursuant to s67Q of the Family Law Act 1975 (Cth), (Act) a Recovery Order is issued authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover the child [X] (“[X]”), born [in] 2020;
(b)To deliver [X] to the Applicant father at [J Street, Suburb K], NSW, or such other place (as is reasonably accessible by the father) as the person effecting such may nominate; and
(c)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that [X] may be found.
3.That if the mother return to reside in the [City B] area, being within 40kim of the [City B] Commonwealth Law Court Building then the following should occur in respect to [X]’s time with his parents:
(a)[X] live with his mother.
(b)That [X] spend time with his father as agreed between the parents in wirting, but failing agreement, each week from 2.45pm Friday until 2.45pm Sunday.
(c)That [X] spend time with his father on his Birthday, [in] 2022, from 11am until 3pm.
(d)That [X] communication with his father via facetime each Wednesday at 6pm with the father to initiate the call to the mother’s phone and the mother is to ensure that the Facetime call is facilitated.
(e)That changeover in Order to facilitate [X]’s time with his father shall occur at as agreed between the parents in writing but failing agreement at [Suburb G] McDonalds.
4.That if the mother continue to reside in [Town C], NSW then the following should occur in respect to [X]’s time with his parents.
(a)[X] live with his father in the [City B] area.
(b)That [X] spend time with his mother as agreed between the parents in writing, but failing agreement for one week each calendar mother in the [City B] region, commencing at 12 noon on the day that makes one week before the end of the month and conclude at 12 noon on the last day of the month.
(c)That [X] communicate with his mother via facetime each Monday, Wednesday and Friday that he is not otherwise spending time with his mother at 6pm with the mother to initiate the call to the father’s phone and the father is to ensure that the Facetime call is facilitated.
(d)That changeover in Order to facilitate X’s time with his mother shall occur at as agreed between the parents in writing but failing agreement at [Suburb G] McDonalds.
5.The parents shall immediately inform the other by telephone call of any, hospitalisation, serious illness or injury sustained by [X] whilst in their care and further provide any particulars or any treatment received by the children together with the name and address of the treatment provider and/or the location at which [X] is a patient.
6.That the father do all such acts and things and sign all such documents to request and authorise any medical practitioner or treatment provider at which [X] attends from time to time to provide copies of all reports, notices, correspondences and information concerning [X]’s health to the mother, including speaking to the mother by telephone and/or in person as may be required.
7.Both parents shall each make available to the other any medication prescribed for [X] to enable the other parent to administer such medication to [X] and the other parent shall thereafter administer the medication as prescribed or required and the medication shall pass between the parents so as to ensure that it is in the possession of the parent with whom [X] is living or spending time.
(As per the original)
The nature of a review application

Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”) provides for judicial supervision of orders made by registrars under delegated authority by enabling a party to seek the review of a power exercised by a delegate of Division 2 of the Court, namely, a registrar. Therefore, the decision of a senior judicial registrar is a reviewable decision pursuant to s 256(1) of the FCFCOA Act.
Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules 2021”) sets out when a party may apply for a review as follows:
14.05 Application for review of order or decision
(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
…
Further, r 14.07 of the Family Law Rules 2021 provides:
14.07 Procedure for review
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2)      The court may receive as evidence:
(a)       any affidavit or exhibit tendered in the first hearing; or
(b)       any further affidavit or exhibit; or
(c)       the transcript (if any) of the first hearing; or
(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
…
The effect of these rules is that the review of a registrar’s determination is an original hearing, in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 at [17] referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [43].
As Hallen J observed in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]:
Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] – [26].
The decision of the senior judicial registrar
The senior judicial registrar noted in his ex tempore reasons for judgment delivered at the interim hearing on 19 January 2022 that neither party sought an order for equal shared parental responsibility on an interim basis and that he was of the view that it was inappropriate to make an order for parental responsibility in the context of these interim proceedings. This was in the context of the parties’ history of poor communication and the fact that there had, historically, been domestic violence orders in place between the mother and the father. No issue has been taken with that aspect of the decision which, in my view, was appropriate.
The senior judicial registrar applied relevant authority to the effect that the Court should be loath to tolerate a parent unilaterally relocating with the child prior to the Court having the opportunity of considering, at a final hearing, the merits of the parties’ respective proposals in the event of the Court permitting a parent to relocate with the child. In that respect reference was made to Morgan & Miles (2007) FLC 93-343 and Stringer & Nissen (No. 2) (2019) FLC 93-922.
The senior judicial registrar noted the evidence concerning the mother’s difficulty of obtaining suitable accommodation in City B.
The senior judicial registrar also noted that, prior to the child moving to Town C, that the child had a “strong and significant bond” with his father and in addition to the extended paternal family who had “assisted with his caregiving.” It was also noted that the mother did not raise any issue of risk associated with the child being in the care of the father.
The senior judicial registrar noted the primary consideration set out in s 60 CC(2) of the Act as to the desirability of the child, to the maximum extent possible having regard to the best interests of the child, having a meaningful relationship with both parents. It was noted that there were impediments to this occurring in the event of the mother continuing to live in Town C. Relevantly, the geographic distance between the locations presented for the child to spend regular and frequent time with the father.
In terms of the second primary consideration set out in s 60CC(2), being the issue of risk, the senior judicial registrar summarised the parties respective contentions in his ex tempore reasons for judgment as follows;
[The father] refers to allegations of family violence that have resulted in the making of domestic violence orders. In particular, he refers to an incident in September of 2019 where he alleges that [the mother] threatened to hurt [the child] in utero and began to cut herself, and otherwise deposes to her exposing him to significant domestic violence, emotional manipulation to screaming and hitting and making other threats to harm.
Whilst [the mother] accepts that there have been incidents of yelling and screaming, she denies any physical violence. Significantly those allegations predate consensual arrangements for [the child] to live with his mother and spend the time that I have outlined with his father. I infer that [the father] did not consider [the child] to have then been at unacceptable risk of harm in [the mother’s] care.
[The father] raises concerns arising from his observations of [the child] during video conversations, and also a photograph that was sent to him showing injuries on [the child]. As a result of those concerns, a number of welfare checks were undertaken by New South Wales Police at [the father’s] request and no issues arose as a result of those inquiries.
[The father] also refers to incidents of family violence that appear to have occurred between [the mother] and her now ex-partner in or around November of last year, which also resulted in domestic violence order proceedings between them, and it appears a charge of assault. Nevertheless, despite that evidence [the father] proposes that [the child] spend at the very least one week per month unsupervised with his mother, or alternatively, in the event that [the mother] lives in the [City B] area, that, in fact, [the child] live primarily with her. I infer from his proposal that he does, in light of the more recent evidence, consider [the child] to be at unacceptable risk of harm in the relevant sense in his mother's care and I do not reach a different conclusion.
In terms of the considerations set out in s 60CC(3), the senior judicial registrar noted that a parent’s decision to unilaterally relocated to another city with the child may reflect poorly on that parent’s attitude to parental responsibility. The senior judicial registrar noted, however, that the mother advised the father of her intention to move and her reasons for doing so being her inability to find appropriate accommodation in City B. The senior judicial registrar stated, that, in those circumstances he was not critical of the mother’s actions particularly in the context of the impending birth of another child who has since been born this year.
While the senior judicial registrar noted impediments to the child having a meaningful relationship with the father, in circumstances where the mother continued to live in Town C, the senior judicial registrar determined that, in circumstances where the mother had been the child’s primary carer since his birth that it would not be in the child’s best interests to be removed from the mother’s care and placed with the father. The senior judicial registrar stated that he was not prepared to make an order that would have the effect of compelling the mother to return to the City B region “absent satisfaction that [the mother] is able to reasonably accommodate herself there.”
Determining the best interests of the child
The law – concepts and principles
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act in turn sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. As I have explained, both parties agree, appropriately, in my view, that the Court should not make an order for equal shared parental responsibility in the context of these interim proceedings.
In those circumstances, it is not necessary to consider whether orders should be made for the child to spend equal or substantial and significant time with both parents pursuant to s 65DAA of the Act. The task of the Court is to make orders that it considers to be in the best interests of the child having regard to those matters set out in s 60CC of the Act.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
Protection from harm
In Stott & Holgar & Anor [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of that responsibility.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude towards the child and parental responsibilities, of each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and, if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(g)Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
In Banks & Banks (2015) FLC 93–637 at [48]–[50], the Full Court stated, that, in the context of interim proceedings, the court should adopt a practical approach which was described in the following terms;
48.It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…
49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The primary issues
The primary issues to be considered in these proceedings are;
(1)In circumstances where these are interim proceedings, should orders be made requiring the mother to return with the child to City B in order to preserve the status quo pending a detailed consideration of relevant issues at final hearing.
(2)To what extent will the mother have difficulty in obtaining suitable accommodation for herself and her children in City B;
(3)Having regard to the relevant s 60CC considerations, would it be in the best interests of the child for orders to be made either;
(a)requiring the mother to relocate the child from where he lives with the mother in northern New South Wales to City B, or
(b)effecting a change of residence for the child to move from the primary care of the mother to that of the father?
Analysis
While, in conducting a review, I am conducting a hearing de novo, for reasons which I will explain, the senior judicial registrar’s analysis of the evidence that he was able to take into consideration in the context of interim proceedings and the inferences which he drew from that evidence were sound and the orders he made were appropriate in the context of the facts of this case. Events which have occurred subsequent to the decision of the senior judicial registrar and, in particular, the birth of the mother’s second child, who, unfortunately, has suffered with illness requiring hospitalisation, strengthens the mother’s case to be permitted to remain living in Town C unless and until suitable accommodation becomes available in the City B region.
Issue 1 - Significance of the mother relocating prior to the final hearing
In Attwill & Marden [2018] FCCA 1401 at [90]–[95] Judge Brown stated:
Two of the principles underpinning Part VII of the Act [s 60B(2)] encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
In Morgan & Miles, which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
The comments, of Warnick J referred to, were as follows:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
(Citations omitted)

While acknowledging the undesirability of parents unilaterally relocating during the course of family law parenting proceedings, for reasons which I explain below, I am satisfied that the facts and circumstances of this case fall within the exceptional category referred to in the above authorities.
Issue 2 - The prospects of the mother obtaining appropriate accommodation for herself and the child in City B
In the context of these interim proceedings, I am conscious that that the evidence of the parties has not been tested by cross-examination. Nevertheless, the mother’s evidence that she has experienced difficulty in finding appropriate accommodation in City B is plausible and cannot be ignored If the Court were to compel the mother to return to City B in circumstances where she is unable to obtain appropriate accommodation, it would not be in the best interests of the child and would potentially place the child in a situation of risk.
In that respect at paragraph 23 of the January affidavit, the mother attests to having unsuccessfully applying for rental accommodation on 30 occasions.
The father has annexed to his affidavit availability of rental accommodation within the greater City B region that potentially falls within a price bracket that is manageable by the mother, who is on social security payments and who is receiving minimal child support assistance from the father. That evidence, however, is evidence only about the theoretical existence of potential rental property, rather than the possibility of the mother being selected as an appropriate tenant from a list of potential applicants. This is in circumstances, where the mother attests at paragraph 26 of the January affidavit, that on one occasion she was evicted from rental accommodation in circumstances where she and her then partner were unable to afford the rent. In other words, she does not have a solid track record when it comes to capacity to pay for rental accommodation. This is unsurprising in the circumstances where the mother is young, single and unemployed with two children to support.
Further, at paragraph 29 of the January affidavit, the mother attests to seeking assistance from various agencies which have only been able to provide short-term accommodation for the mother in the City B area.
At paragraph 32 of the January affidavit, the mother attests to seeking the assistance of relatives who lived in Town C to find accommodation and that, as result of that approach, a relative has made a three bedroom house available to the mother and her children.
For these reasons, I am satisfied that the facts and circumstances of this case are such that the mother’s circumstances fall within the exceptional category where a parent who has unilaterally moved should not be compelled to relocate the location of the other parent pending final hearing.
Issue 3 – Is it in the best interests of the child for orders to be made requiring the mother to return to City B and/or for orders to be made for the child to live with the father.
The nature of the case presented by the father is unsatisfactorily ambiguous. The orders that he is seeking to propose are, as the first alternative, that once the mother returns to City B with the child, that the child would continue to live with the mother and spend time with the father. However, that proposal is inconsistent with the father’s assertions that there should be a change of residence for the child. In that respect, at paragraph 37 of his April affidavit the father states that:
I seek that [the child] live primarily with me to provide greater stability and an environment and home life free of domestic violence.
The Court is entitled to obtain greater clarity from a party as to what orders they are actually seeking.
The reference to what the father contends to be the violent environment that the child is exposed to is summarised in paragraph 36 of the father’s affidavit in which he states:
I am still very concerned however about the stability of [the mother] and her domestically violent relationship with [[Mr F]] that is contining [sic] in ADVO proceedings.
In terms of relevant s 60CC considerations I will therefore, firstly, examine the issues of the mother’s parenting capacity and, secondly, the substance of the father’s assertions that the mother is currently living in an environment where domestic violence is prevalent.
The mother’s parenting capacity
The father provides evidence in his affidavits relied upon concerning a history of the mother acting in a dysregulated manner including displays of anger, shouting at him, threatening to self-harm, actually self-harming, on one occasion ordering him from the car, and obsessively trying to contact him electronically and by unannounced attendances at his family home. Additionally, the father refers to a number of inappropriate messages that have been sent by the mother both to the father and Ms D.
As I have noted, the mother acknowledges that the parties had a volatile relationship that frequently involved shouting at each other. The mother also acknowledges, on one occasion, pulling over the motor vehicle which she was driving and requiring the father to get out of the car in circumstances where she was upset.
The mother acknowledges the accuracy of text and electronic messages attached to the father’s affidavits.
The mother acknowledges aspects of her behaviour were inappropriate and explains that it occurred in circumstances where she was experiencing physiological changes associated with her pregnancy, saddened by the breakdown of her relationship with the father and was dismayed at what she believed was his infidelity. The mother also indicates that her behaviour occurred in circumstances where she was concerned about future economic insecurity in terms of her ability to adequately support herself and her yet to be born child.
The mother denies engaging in acts of self-harm and, further denies that she has caused any injury to the child, as asserted by the father. In that context, the mother explains that a bruise to the child’s face occurred as a result of the child falling under the care and supervision of his aunt. The mother’s evidence in that respect is consistent with the fact that the police attended to conduct a welfare check at the request of the father and were satisfied that the child was not at risk of harm in the mother’s care.
At paragraph 32 of his January affidavit the father asserts that “I am instructed that [the mother] was required to continue to take her medication for Borderline Personality Disorder Diagnosis.”
There is, however, no basis provided for that assertion including identification as to who “instructed” the father to that effect. Nor is there any basis to assume that the father has any other knowledge which justifies the imputation that he makes against the mother that she suffers from ‘borderline personality disorder.’ The making of that imputation in those circumstances is regrettable. It is contrary to developing a mutually respectful relationship where they have the capacity to engage in respectful and cooperative parenting in the future.
The mother specifically denies that she has been diagnosed as suffering from a personality disorder but frankly acknowledges that she has experienced depression and anxiety for which she receives ongoing treatment including the use of prescription medication.
There has been no evidence that the treatment received by the mother is inappropriate.
The father’s tender bundle includes evidence that is contrary to the case that the father is asserting. It includes documents produced from the DCJ who have investigated the circumstances of the mother as a result of reports to the DCJ helpline. They include what the father acknowledges to be a number of complaints that have been made by himself and his mother, the paternal grandmother.
In that respect the documents produced by the DCJ relevantly include the following regarding a helpline assessment dated 6 April 2020;
Screened out for [the child] for risk of psychological harm with PRF of mental health and domestic violence. Although it is concerning that the mother is verbally abusing the father via text and phone calls and is threatening to start taking drugs or threatening the father to not be able to see [the child] unless the father does what she wants him to do. There is insufficient information that [the child] is exposed to these text messages and phone calls considering his age. The mother and father have no face-to-face contact currently. This report does not meet risk of significant harm at this stage
(Emphasis added)
Further, a separate helpline assessment was received on that same day, 6 April 2020 that outlined the screening and response priority tool (SCRPT) rationale for the closure of the assessment as follows:
Screens out for risk of significant neglect as there is insufficient information to mark mental health as a parental risk factor. Whilst there are some concerns that [the mother] may not be coping since giving birth to [the child] (4 weeks old), there is insufficient information to indicate that her mental health is interfering with her functioning; or significantly impacting on her care & supervision of [the child]. [The mother’s] statements raising concerns for her mental state were in a conversation with [the father] and it is not known if it is indicative of what is going on her in her daily life.
The notes produced by the DCJ further state following a helpline assessment reported on11 February 2020:
[The mother] has a history of mental health issues. She has been scheduled to a psychiatric service under the Mental Health Act in 2016 and 2015. The issues at the time were threatened self harm. [The mother] advised that she does not have a mental health diagnosis. [Ms Kane’s] father, [the maternal grandfather] advised that he sought psychiatric therapy for [the mother] when she was a teenager and that this seemed to help her.
[The maternal grandfather] also advised that he does not have current concerns about [the mother’s] mental health and that her behaviour in September 2019 was a reaction to finding herself in a situation in which she is pregnant and [the father] does not want to continue the relationship.
[The mother] also stated that she acknowledges that her behaviour in the incident in September was "over the top" and that she has since processed her feelings about her situation. [The mother] said that she understands that working out a co-parenting relationship with [the father] "will take time". She said she has good emotional support from her cousin, her dad and her mum.
The mother’s affidavits filed in these proceedings acknowledges the period of emotional instability in the circumstances of the breakdown of her relationship with the father. However, she contends that she is far more settled with the support she receives from family members in Town C and as a result of having secure accommodation in that town.
While the mother’s evidence will ultimately be tested if this matter proceeds to hearing, the evidence provided by the mother is plausible and it is provided in circumstances where there is a complete absence of evidence that the mother’s parenting capacity has been adversely impacted by mental health issues.
To the contrary, despite a number of complaints which, unfortunately, have been made against the mother by third parties to the DCJ, it can be reasonably inferred by those passages to which I have earlier referred and by the absence of evidence that the DCJ has taken protective measures in respect to the child, that the DCJ has not assess the child to be at risk in the care of the mother. That is not to say that the mother, who is coping as a young single mother with two young children (one being quite ill), has and may require support and assistance from family members in Town C. Evidence has not been presented in these proceedings that justifies the number of complaints that have been made to the DCJ and Police concerning the mother’s behaviour and the trial judge hearing this matter may well consider it appropriate to inquire whether there has been an element of systems abuse in the making of those numerous reports.
In summary, the father has failed to satisfy the Court that there is a basis for changing the residence of the child based on the mother having inadequate parenting capacity.
Risk due to the alleged potential for the child to be exposed to family violence in the care of the mother
In addition to contending that the mother has a volatile and unstable temperament, the father expressed concern the child is exposed to family violence that he contends occurs between the mother and her then new partner, Mr F. He states at paragraph 30 of his April affidavit:
I am concerned that [the mother] and [[Mr F]] are still in a very toxic and unstable relationship that includes domestic violence which [the child] is being exposed to. Because of the situation, myself and my mother have made a number of reports to the Department of Communities and Justice about the care and welfare of both [the child] and [H]. I am unsure as to any action they have taken.
In that respect, in both his January and April affidavits, the father refers to hearsay evidence of communications he has had with the sister of Mr F. While I am not bound by the rules of evidence, I give little weight to that evidence when it is denied by the mother who gives a different account of arguments she has had with Mr F and in circumstances where I am unable to make findings in respect to controversial factual contentions.
The police records included in the father’s tender bundle outline that the mother has been the subject of at least one apprehended domestic violence order as referred to above, as a result of a complaint made to police by the father against the mother. The police records further indicate that the mother has been subject to an apprehended domestic violence order in respect to conduct that she has engaged in with Mr F.
The police records included in the tender bundle, includes reference to an event which occurred in 2021 where the mother, who was 22 weeks pregnant, and Mr F, the father of H, engaged in an argument over what the mother contended was loud and boisterous behaviour by Mr F when he was watching a sporting match on TV. The police notes referred to Mr F alleging that, during the course of the argument the mother punched him in the head and face several times and that the mother “rushed towards him with a kitchen knife.” Following the event, Mr F went to a local hotel where he called either a friend or family member and expressed distress in respect to the events which had occurred. It appears that the person to whom Mr F spoke, in turn, notified police who attended upon both Mr F and the mother to obtain their account of what had occurred.
The police COPS record is as follows:
With information available to police, police see significant doubt as to the seriousness of the allegation. Police believe an argument took place, [[Mr F]] was pushed and away and out of the [mother’s] space as a self defence response. Police believe cutlery was thrown towards the victim at the time he was leaving the house.
[[Mr F]] states he has no fears of the [mother] and of note the [mother] is of petite build, [[Mr F]] is of solid build.
The victim has since returned to the area of (redacted) to live.
Of the two alleged assaults that have taken place police see the hitting/pushing to be self defence and the throwing of the cutlery to be in anger and not with the intent to connect with [[Mr F]]. Police see it is not in the best interest of all parties to pursue a common assault charge for this matter. As such will not be taking any action.
The police records also record that there was no visible marks on the face of Mr F despite his assertions that he had been punched in the face by the mother. The police notes record the weight of the mother as being just 50 kg, which is consistent with police description of the mother having a petite build.
The police notes recording that Mr F has returned to live in an area away from the mother are also consistent with the mother’s assertion that she no longer lives with Mr F.
At paragraph 32 of his April affidavit, the father has asserted that a further argument has occurred between the mother and Mr F in the period subsequent to the birth of H in 2022. The evidence upon which he relies is hearsay evidence of a conversation which he has had with the sister of Mr F. Respectfully, this evidence is weak and does not enable the Court to determine the basis of the argument and what transpired during the argument. It certainly does not provide a basis to conclude, as asserted by the father, that the mother is continuing to live with Mr F and that the nature of their relationship is one that is characterised by family violence such that the child is in a situation of risk.
Accordingly, the father has failed to satisfy the Court that orders should be made for there to be a change of residence of the child as a result of the prospect of the child being exposed to family violence in the mother’s care.
Section 60CC additional considerations
Having determined that the father has failed to satisfy the Court that the child is at risk of harm in the care of the mother or that she lacks appropriate parenting capacity, it is then necessary to consider the additional s 60CC considerations to the extent that they are relevant to the issues to be determined in these proceedings.
Meaningful relationship
Both parents acknowledge that it is in the interests of the child to have a meaningful relationship with the other parent.
It is necessarily the case that for so long as the mother continues to live in Town C, that the child will be unable to spend regular time with the father. This is less than desirable in respect to a young child where regularity of contact is considered to be most conducive for the child to establish a bond with the non-household parent. Nonetheless, the mother has complied with orders made by the Court and she has facilitated the child spending time with the father for one week each month as well as having regular FaceTime with the father.
As previously noted, the concept of meaningful relationship is qualitative not quantitative.
Risk
I have earlier dealt with the issue of risk associated with the father’s contention that the mother is currently living in a volatile relationship with Mr F which is characterised by family violence and that the mother is suffering from poor mental illness that impacts upon her parenting capacity. I have found no basis for those contentions.
Issues relating to the children – their views, level of maturity, culture and relationships:
The child was born in 2020 and is now just two years old. In those circumstances, the child cannot sensibly communicate his views as to his living arrangements and specifically, which parent he would prefer to live with. The fact that the child is so young, is, however, a relevant consideration in my determination that it is desirable for the mother to have secure accommodation for herself and the child.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
The father terminated the parties’ relationship before the child was born. He did not assist with costs of the birth and he pays minimal child support despite acknowledging that he is now in part time employment.
The child has lived primarily with the mother who has remained the child’s primary carer.
At paragraph 32 of the father’s January affidavit, he contends that the mother is medicated “for borderline personality disorder”. For reasons which I have earlier articulated, there is no evidence to support that assertion by the father. Specifically, there is no suggestion that the father has any qualification that equips him to make such a diagnosis and there is no expert evidence regarding the mother suffering mental illness.

In his January affidavit, at paragraph 37 the father refers to communication between the mother and the paternal grandmother sent towards the end of 2020 in which the mother expressed challenges in coping with caring for the child who was then a young baby.
In a similar context at paragraph 36, the father contended that the mother requested that the father and the paternal grandmother assist in providing care for the child at times that were in addition to the agreed weekend time.
I do not, however, give significant weight to those communications. It is quite inappropriate to be judgmental towards a young mother who reached out for assistance in circumstances where she had no secure employment, no secure accommodation and where the future for her was uncertain. The fact that the mother’s reaching out for such assistance has been used to suggest a lack of parenting capacity on her part is, even in the context of these interim proceedings, regrettable.
Comparatively, the father contends that he describes himself “as an attentive father” who reads to the child and engages in other activities with him including singing and going for walks. The father also states that the child has a good relationship with the paternal grandparents.
There is no reason to dispute that evidence. Unlike the stance of the father, the mother does not question the father’s parenting capacity or that he obtains assistance from his parents who also care for the child.
The father contends that the mother has acted irresponsibly in unilaterally moving from the City B region to Town C in September 2021. As previously indicated, the Court is concerned with a parent unilaterally locating in circumstances where there is a dispute regarding parenting arrangements that has not been finally determined by the Court. Nevertheless, the conduct of the mother should be seen in the context of plausible evidence provided by the mother as to difficulties she has faced in obtaining suitable rental accommodation in City B for herself and her child and the reasons she presented for moving to the accommodation that was available in Town C. The mother has indicated that if suitable accommodation could be provided in City B that she would be prepared to return to City B with the child. On inquiry, counsel for the father indicated that the father is not in a position to provide any assistance to obtain that accommodation for the mother and the child.
The father justifiably, in my view, raises concerns regarding his inability to spend time with the child in the period between approximately 17 September 2021 and 10 December 2021. The mother’s conduct should be seen, however, in circumstances where she was concerned about multiple complaints that the father and the paternal grandmother made to police about her parenting capacity. The Court also notes that by consent orders made on 1 December 2021, arrangements were made for the mother to transport the child from Town C to City B to facilitate the father spending time with the child. The consent orders also included provision for the father to have regular FaceTime with the child. The mother has complied with these orders.
In that context, the father attests, in his January (at paragraphs 54–58) and April (at paragraphs 16–19) affidavits, that the mother has facilitated the child spending time with him in accordance with Court orders but stated that on one occasion the mother requested that the time be cut short by one day. The father also expresses grievance that the mother has been “secretive” as to times that she has been in City B and has not facilitated the child having additional time with him. Given the lack of precision with that evidence, I give it little weight. It would not be entirely surprising that, in the context of this ongoing litigation and associated police attendances upon the mother as a result of requests made by the father and the paternal grandmother that the mother, is not overly enthusiastic about facilitating the child having additional time with the father and the paternal grandmother beyond that which is provided in the Court orders.
The father attests to the child having satisfactory accommodation when he stays with him at the paternal grandparent’s residence. That is not disputed by the mother.
At paragraph 33 of his April affidavit, the father gives evidence of his understanding of the mother’s current living arrangements which he contends as living with Mr F in the City B region. The mother acknowledges that it has been necessary for her to spend additional time in City B in order to be close to medical treatment for her new baby, but she disputes the father’s account of their living arrangements. Essentially it is the mother’s evidence that she does not have access to long term secure accommodation in City B and until such time as such accommodation becomes available, she intends to remain living in Town C in the accommodation that has been provided to her. For reasons which I have explained, the mother’s evidence as to the difficulty she has had on obtaining accommodation in City B is plausible.
In addition to the child having satisfactory accommodation at his mother’s residence, the father attests that he would facilitate the child being enrolled in pre-school and attending swimming lessons. In circumstances where he is in receipt of a social security benefit supplemented by some casual employment, it is not clear however, how the father would meet the cost of those services.
It is agreed that, in the period from the time the parties entered into consent parenting arrangements in August 2020 until when the mother moved to northern New South Wales in September 2021, the child spent every weekend with the father at his parent’s family home. It is reasonable to assume that the child also spent considerable time with the paternal grandmother and developed a relationship with both the father and paternal grandmother together with other members of the paternal family.
As noted above, there was a hiatus in the time that the child spent with the father between September 2021 and December 2021. On 1 December 2021 the mother agreed to consent orders to facilitate that child was again spending time with and communicating with the father. As noted, it is not in dispute that the mother has complied with those orders despite being heavily pregnant and having the responsibility of care for her newborn baby who the husband acknowledges has unfortunately had a serious illness requiring surgery.
As previously noted, while it is not stated as his primary application, at paragraph 14 of his January affidavit, the father states that due to his concerns “surrounding [the mother’s] care of [the child] and her lack of support in Town C” that he is seeking an order “that [the child] be returned to my care”.
Having regard to the child’s infancy and the fact that he has lived primarily with the mother who has been his primary carer since his birth, I do not propose making orders for there to be a change in the child’s residence in circumstances where, for reasons which I have explained, the father has not, on the basis of evidence he has presented to the Court, established that the mother lacks necessary parenting capacity nor that the child is at risk in the mother’s care.
Additionally, there is no evidence that has been presented in these proceedings from the paternal grandmother or any other person who would be present in the household with the child in the event of orders being made requiring there to be a change of residence from the mother to the father.
Issues of family violence
At paragraph 20 of his January affidavit, the father states that he observed a bruise on the child’s face during a FaceTime call with the child. The father notes that he reported the matter to police who conducted a welfare check on the child but took no action in respect to the report. That evidence provides no basis for inferring that the mother deliberately caused injury to the child or that the injury occurred as a result of neglect on the part of the mother.
At paragraph 39 of the father’s January affidavit, he referred to an event on 19 August 2021 where the mother sent him a photo of the child appearing to have suffered a bruise and cut over his eye. The father states that this caused himself and his parents “great concern”. The father further refers to seeing photographs on 3 September 2021 in which he “noticed a bruise on [the child’s] cheek and a cut on his face.” There is no indication as to whether the observations related to the same bruise and/or the same cut.
At paragraphs 25 and 26 of his January affidavit the father refers to the police conducting additional welfare checks on 1 November 2021 and 24 November 2021. The father states at paragraph 26 that the police reported to the father after conducting the third welfare check that “[the child] was doing well.”
The fact that the father viewed photographs and saw a video screen in which a young child had a bruise on his face and in September 2021 had a cut on his eye does not establish that the mother has hurt the child or that the injuries were caused by neglect. The photographs annexed to the father’s January affidavit do not indicate serious injury.
It is significant that the last welfare check conducted by police in November 2021 at the request of the father and/or the paternal grandmother satisfied the police that the child was “doing well.” It can be inferred by the fact that no action has been taken against the mother by police, that no inference was made that the child was injured as result of any conduct on the part of the mother.
At paragraph 27 of his January affidavit, the father contends that his relationship with the mother was “fraught with significant domestic violence and emotional manipulation inflicted against [him].” The mother disputes that evidence and contends that the father acted in an inconsiderate and irresponsible manner in failing to commit himself to the relationship with her in circumstances where she was to give birth to the parties’ child. The mother acknowledges losing her temper on occasions, but contends she did so in circumstances of acute distress arising from the father’s infidelity.
In paragraph 30 of his January affidavit father contends that “in or around September 2019” the mother attended his house and threatened self-harm including harm to herself which would impact upon the parties’ unborn child. The father further contends that when driving the mother home, she commenced to cut herself with a razor and, at one stage got out of the parties’ car to run into traffic before returning to the car to continue to drive to the maternal grandfather’s house. There is no suggestion that the father drove the mother to the hospital or sought any other form of medical care as result of the injuries which he contends she inflicted upon herself during the course of the trip from the home of the paternal grandmother to the home of the maternal grandfather.
As a result of events that occurred in September 2019, on 1 October 2019 an interim apprehended domestic violence order was issued naming the father as a protected person. A copy of that order is at annexure “D” of the father’s January affidavit.
The father further contends that “at another time, [the mother] drove to the front of my house and began to harass me with phone calls, within which she threatened to harm herself.” At paragraph 31 of his January affidavit the father states that “we” called the police and ambulance however that the mother “refused their assistance.” Equally, however, there is no indication that any police action was taken either in a law-enforcement sense or with a view to the mother being scheduled as result of mental health concerns.
Police records contained in the earlier referred tender bundle indicate that the mother was sentenced to a 12 month community corrections order in respect to events which are stated to have occurred on Monday 2 September 2019. The police notes also include records which are broadly consistent with the allegations made by the father in his affidavit concerning the mother’s conduct in the months following the breakdown of their relationship. Most relevantly, the police notes include the following record:
On 1st September 2019 the victim attended the accused premises in (redacted). On this night the two began to argue. This argument continued throughout the night. The two went to bed. The following morning, 2 September 2019, the victim and accused began to argue again. This has resulted in (redacted) asking the victim to leave. The victim has left and returned home to his address in (redacted).
A short time after the victim arrived home, he noticed the accused had arrived at his premises and was sitting out the front of his house, uninvited, in her car. Due to previous incidents, the victim has begun filming on his phone in order to protect himself from any allegations against him. The accused was very upset and agitated. An incident has occurred near the front door where the accused has begun harming herself and punching herself in the abdomen area. Over the next 31 minutes, arguing between both parties has occurred.
The victim has agreed to drive the accused to (redacted) and to her 12 week pregnancy scan. Whilst driving the accused was very upset and screaming at the victim. She has threatened to self-harm by running in front of traffic and also removed a razor blade from the glovebox. The victim states that he has tried to prevent any self-harm from occurring in the accused has punched him several times to the face and ribs. This assault can be heard on the video recording with the victim saying “stop hitting me.” The violent nature of the accused has resulted in the victim getting out of the vehicle and walking home.”
As the victim arrived home, the accused was already waiting out the front of the house. The victim and the accused have then resolve the situation, gone to (redacted) house and then gone to the scan. The victim did not contact police or any person regarding this incident as he had managed to resolve the victim’s behaviour.
While the circumstances of these events will need to be determined at final hearing, it is clear that, even accepting the father’s evidence at its highest, that he was uninjured by the mother’s conduct and that the parties were able to resolve their immediate conflict such that the father assisted the mother to attend to obtain ultrasound scans in respect to her pregnancy.
Moreover, it is clear that those records are based on an account provided by the father. The fact that the mother received the sentence, to which I have referred, does not create an estoppel against her in respect to the events as alleged by the father. The parties’ respective factual contentions remain to be determined at final hearing.
Messages attached as annexure “C” to the father’s January affidavit establish that the mother has unquestionably sent unpleasant messages to the father’s current partner, Ms D making derogatory comments about the father and which were also insulting of Ms D. While inappropriate, those messages are consistent with the mother being distressed at the breakdown of her relationship with the father and the fact that he has entered into a new relationship. The messages do not threaten physical harm and there is no basis for assuming that the mother would harm the child, or any other person, as result of the content of those messages.
The father further contends at paragraph 28 that the mother “would also display jealous behaviour” during the parties’ relationship. Comparatively, the mother expresses concerns regarding the father’s admitted propensity to socialise of an evening when the parties were in their relationship. It is not possible, in the context of these interim proceedings, to resolve those issues save to the extent that the electronic communication between the mother and the father, the paternal grandmother and the father’s new partner certainly displayed resentment, at the time of the communication, on the part of the mother that the father had entered into a new relationship. The mother had subsequently entered into a new relationship and gave birth to a child from a new relationship. The mother states in her April affidavit that she is not in a relationship with Mr F but has maintained a good relationship with him. Further, she is more settled and the factors that impacted upon her when she sent those unfortunate emails are no longer an issue for her.
Effect of change
The mother has been the child’s primary carer since his birth. The second alternative orders sought by the father for there to be a change of residence for the child would represent a significant change for the infant.
For reasons which I have set out, the father has not established a basis for the making of orders which would result in such a significant change. This is in circumstances where the change would result in the child being, for lengthy periods of time, separated from not only his mother but also his infant brother.
Practical difficulty of implementation
There are practical difficulties in the child spending time with the father in circumstances where he is living with the mother in Town C. According to the orders that are the subject to challenge by the father, the mother is currently bearing the burden of travel to facilitate the child spending time with the father.
The mother has not, however, sought a variation of the order requiring her to transport the child via return trip from Town C to City B. It would not be surprising if she sought such a variation at the final hearing of the matter.
Avoiding further proceedings
These are interim proceedings and no challenge has made in respect to the matter being listed for further case management events.
Other relevant matters:
As noted by the Supreme Court of Canada in Barendregt v. Grebliunas [2022] SCC 22 at [173];
It is often difficult to disentangle the interests of a parent from the interests of a child. Indeed, “the reality that the nurture of children is inextricably intertwined with the well-being of the nurturing parent” is far from novel. A child’s welfare is often advanced in tandem with improvements in the parent’s financial, social, and emotional circumstances.
(Citations omitted)
The mother attests to difficulty she has had in obtaining and securing rental accommodation in City B. As earlier noted, the mother’s evidence is plausible and is consistent with the evidence of the father, who at paragraph 49 of his January affidavit attests to his understanding that the mother and her then partner, Mr F abandoned rental accommodation in circumstance’s where they were behind in rent.
The father also acknowledges at paragraph 22 of his April affidavit that the mother’s new baby H, who was born this year “has been very ill and required hospitalisation and surgery.”
The mother has attested to the anxiety she experienced when the accommodation arrangements for herself and the child were insecure. Her evidence in that respect to consistent with common sense and human experience.
The fact that she now requires suitable accommodation for herself and both of her children, one of whom is in ill health is entirely understandable. It is in the interests of the child that she is able to secure and maintain such stable accommodation.
The mother attests that she would return to live in City B if she could obtains such suitable accommodation. Her stance in that respect is also understandable. The father says that he cannot assist her to do so.
While I am deciding the matter afresh, for the reasons which I have set out, I am in agreement with the reasoning of the senior judicial registrar that it would not be in the best interests of the child for orders to be made requiring the mother to return the child to live in the City B region in circumstances where the mother is unable to obtain secure accommodation in City B but she has such suitable accommodation available in Town C.
Conclusion and orders

For reasons which I have set out, the father has not made a case for there to be a change in residence for the child. It would not be in the best interests of the child for his primary carer to be placed in a situation where she is without secure housing for herself and her children.
For these reasons I dismiss the father’s application for review filed on 7 February 2022.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge McClelland.
Associate:
Dated: 19 July 2022

File number(s):	NCC 3876 of 2021
Judgment of:	DEPUTY CHIEF JUDGE MCCLELLAND
Date of judgment:	19 July 2022
Catchwords:	FAMILY LAW – PARENTING – Review of a registrar’s decision – Where the mother unilaterally relocated with the child in September 2021 – Where the registrar made orders for the child to live with the mother and reside in her new residence – Where the father seeks a review of the totality of the registrar’s decision – Where the father seeks for the mother to return with the child to their former location or for change of residence if the mother remains residing in her current residence – Where it is not in the best interests of the child to relocate with the mother – Review application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA 69ZW Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07 Children and Young Persons (Care and Protection Act) 1998 (NSW) s 245D
Cases cited:	Attwill & Marden [2018] FCCA 1401 Banks & Banks (2015) FLC 93–637; [2015] FamCAFC 36 Barendregt v. Grebliunas [2022] SCC 22 Feiteiro & Feiteiro [2019] FamCA 647 Henley & Henley [2019] FamCA 101 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Stott & Holgar & Anor [2017] FamCAFC 152 Stringer & Nissen (No. 2) (2019) FLC 93-922; [2019] FamCAFC 185 Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Division:	Division 2 Family Law
Number of paragraphs:	158
Date of hearing:	6 May 2022
Place:	Sydney (via videolink)
Solicitor for the Applicant:	Harpers Legal
Solicitor for the Respondent:	Winder Lawyers

NCC 3876 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HANSEN Applicant
AND:	MS KANE Respondent

order made by:	DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:	19 July 2022