Hartland & Mesny - [2023] FedCFamC1F 731

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hartland & Mesny [2023] FedCFamC1F 731

File number(s): BRC 17137 of 2021

Judgment of: HOWARD J

Date of judgment: 25 August 2023

Catchwords: FAMILY LAW – PARENTING – where the father seeks an order for equal time – where the mother seeks to relocate the residence of the child to Country B – where both parents currently live in City C, Queensland – where the six year old child lives five nights with the father and nine nights with the mother each fortnight – where the Court has made findings that the mother has not supported the child’s relationship with the father – where the best interests of the child will be served if the child remains living in City C and lives in a week about shared care arrangement with each parent.

Legislation:
Family Law Act 1975 (Cth)

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

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

Baghti & Baghti & Ors [2015] FamCAFC 71

Beckham v Desprez (2015) 55 Fam LR 310

Cox v Pedrana (2013) 48 Fam LR 651

Cubbin & Cutler [2018] FamCAFC 84

Eagle & Scarlett (No 2) [2020] FamCAFC 291

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Johanson & Johanson [2022] FedCFamC1A 74

Masson v Parsons (2019) 266 CLR 554

MRR v GR (2010) 240 CLR 461

Taylor v Barker (2007) FLC 93-345

U v U (2002) 211 CLR 238

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 162

Date of hearing: 2 and 3 February 2023

Date of last submission: 16 June 2023

Place: Brisbane

Counsel for the Applicant: Dr Wilson

Solicitor for the Applicant: Condon Charles Lawyers

Counsel for the Respondent: Ms Oakley

Solicitor for the Respondent: O’Neill Family Law
ORDERS

BRC 17137 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HARTLAND

Applicant

AND:
MS MESNY

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS:
1.That by no later than 4:00pm on 22 September 2023, the Applicant shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to the Respondent and a copy of the same to the Court at …@....
2.That by no later than 4:00pm on 13 October 2023 the Respondent shall provide any reply to the proposed Final Order to the Applicant and a copy of the same to the Court at …@....
3.That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 20 October 2023.
4.That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph 3 above – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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 the pseudonym Hartland & Mesny has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:

This is a parenting dispute. The applicant father is Mr Hartland and the respondent mother is Ms Mesny.
The father was born in 1964 in Australia.
The mother was born in 1978 in Country B.
The parties have one child together, X, born 2016. The father and the mother both live in City C, Queensland. The current operative parenting order was made by a Senior Judicial Registrar on 24 August 2022. The order was made in Chambers with the consent of the parties. The order provided for a progression of time between X and the father. The current arrangement has been in place since 24 January 2023. In particular I note Order 2(e); (f); and (g). By this current arrangement, X lives primarily with the mother and spends time with the father on Tuesday night each week and on each alternate weekend from Friday afternoon to Monday before school. This equates to five (5) nights per fortnight with the father.
The father seeks final orders in these proceedings that would enable the child to spend time with him for seven (7) nights each fortnight. Specifically, the father seeks a final order that would see X living with him in week one on Monday night and Tuesday night, and in week two from Friday after school until Wednesday morning. This is the father’s primary position. The mother seeks the permission of the Court to relocate the residence of the child to Country B. This is the mother’s primary position.
BACKGROUND
Both parents are professionals with extensive experience and advanced qualifications in the same field. The parents met in Country B in 2004 and commenced a relationship in 2005 when the father was again visiting Europe.
At the time the parents commenced their relationship the father was married to Ms D. Throughout the period of time that the parties conducted their affair – the father remained married to Ms D and remained living with Ms D. The father and Ms D have one adult daughter together, Ms E.
The mother in these proceedings (Ms Mesny) lived in Australia for seven months between 2006 and 2007. On that occasion, the mother was undertaking work as part of a collaboration between organisations from Country B and Australia.
In 2008, the mother migrated from Country B to Australia to take up a full-time senior position in the public service. The mother has remained living in Australia since 2008.
The parents continued in a relationship until 2016. During this period of time the father continued to live with his wife (Ms D).
The mother fell pregnant with X in 2016. Apparently this was when the mother and the father were present together in Country F attending a conference. The father returned to the United States where he had been awarded a scholarship. The father was based at G University during this time. The father says that he received a WhatsApp message from the mother confirming the pregnancy in 2016.
The father made a special trip back to Australia to speak with his wife (Ms D) and inform her about his relationship with the mother. The father told his wife that the mother was pregnant with his child. The father and his wife separated in 2016.
The father told the mother in 2016 that he no longer wished to stay in a relationship with her. I accept the father’s evidence on this point. The mother was, understandably, upset.
Whilst in America in 2016, the father formed a relationship with Ms H. Ms H is another expert in the same field as the mother and the father. The father had known Ms H for some time. Ms H gave evidence during the course of this trial. I will refer to her evidence later in these Reasons. Ms H migrated to Australia in 2017. Initially she moved to Canberra but moved to Brisbane in 2020 to live with the father. The father and Ms H moved to City C in 2022 to be closer to X.
The father had told the mother in 2016 that he was considering moving permanently to the United States. However, the father reconsidered the situation in the months following X’s birth. The father chose to remain living in Australia to be close to X.
The father maintains that he has tried to be a part of X’s life – particularly since 2017. At that time the mother had returned from some months of maternity leave in Country B. The father repeatedly attempted to engage the mother in direct negotiations and even mediation. For a significant period of time, however, the mother was not willing to agree to any extension of the father’s time with X beyond more than a few hours on one day per week. I accept the father’s evidence in relation to these matters.
FAMILY LAW ACT 1975 (CTH) - PARENTING
In Part VII of the Family Law Act 1975 (Cth) (“the Act”), the Legislature has laid out the principles to be applied in parenting cases in Australia.
The objects of Part VII and the principles underlying it are set out in s 60B of the Act. I particularly note s 60B(1) where it states:–
“(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The first stated object of Part VII of the Act makes it clear that the Court is required 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" (s 60B(1)(a)).
This provision of the legislation was highlighted by the High Court in Masson v Parsons (2019) 266 CLR 554 at [8].
Section 60CA of the Act provides that:-
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act then sets out how it is that a Court is to determine what is in the child’s best interests. The Court is required, by s 60CC of the Act, to "consider" various matters when determining what is in the best interests of the child. This does not mean that the Court must specifically mention each factor contained in s 60CC (Cubbin & Cutler [2018] FamCAFC 84 at [12]-[13]).
Section 60CC(2) sets out the primary considerations in relation to a determination by the Court of the child’s best interests. Section 60CC(2) and s 60CC(2A) provide:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
In the context of this case, the conclusion I have reached is that there will be great benefits to young X in having a meaningful relationship with both of his parents.
As to s 60CC(2)(b) and s 60CC(2A) – there is no evidence in this case that the child has been or is likely in the future to be exposed to the kind of harm contemplated in those provisions of the legislation.
It is helpful at this juncture to note some further principles which emanate from the case authorities concerning Part VII applications. In particular, I note:
(a)The Court is not required to consider the various sections and subsections in any specific order: Cox v Pedrana (2013) 48 Fam LR 651 at [29]–[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31].
(b)The Full Court stated in the decision of Baghti & Baghti & Ors [2015] FamCAFC 71 (“Baghti”) at [63]:-
“[The Court]…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”
(c)The Full Court in Baghti also relied on the decision of Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378. Mahoney JA stated at pp.385 – 386, inter-alia:-
“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”
(d)This is consistent with a long line of authority including Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”). Gleeson CJ, McHugh and Gummow JJ stated at [62], inter-alia:-
“… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”
(e)In Eagle & Scarlett (No 2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43], the Full Court supported this approach from Whisprun.
The courts have consistently confirmed that a parent who is applying for permission to relocate the residence of the child does not need to show "compelling reasons" to live where the parent proposes to live. In this regard I note the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 at [47] and U v U (2002) 211 CLR 238 (“U v U”) at [82].
In U v U at [92] Gummow and Callinan JJ stated, inter-alia –
“The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[1]
[1] Gleeson CJ agreed with the reasons given by Gummow and Callinan JJ (Note [1]).
The Family Law Act 1975 (Cth) was amended in 2006 when the Parliament enacted the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Notably, that legislation saw the introduction of s 60CC, as well as s 61DA and s 65DAA. These amendments showed a clear legislative intention in favour of the substantial involvement of both parents in the lives of their children. Both of the parents in this case agree that there should be an order for equal shared parental responsibility. This brings into play s 65DAA.
In Taylor v Barker (2007) FLC 93-345 (“Taylor v Barker”) – the Full Court considered the approach taken by the judge at first instance in a relocation case. In the joint judgment of Bryant CJ and Finn J – their Honours stated at [81] - [83] –
“81.We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82.We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83.However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.”
(emphasis added)
This Court must initially consider "equal time" or "substantial and significant time" and then this Court must balance the mother’s relocation proposal against the options of "equal time" or of "substantial and significant time" – if the Court concludes that either of those options are in the best interests of the child and if either of those options is reasonably practicable (MRR v GR (2010) 240 CLR 461 (“MRR v GR”) at [13] - [20]).
The matters which the Court has to consider under s 65DAA of the Act necessarily involve a determination of the best interests of the child.[2] Once the options of "equal time" or "substantial and significant time" with each parent have been given separate and real consideration – the Court must consider the relocation proposal. Integral to a consideration of the relocation proposal is the best interests of the child. So far as the legislative pathway for the determination of best interests is concerned – I have already considered the matters in s 60CC(2). The additional matters for consideration are contained in s 60CC(3). It is convenient to consider those matters at this juncture. Because both of the separate stages of the decision-making process in a relocation case require the best interests of the child to be considered – there is a certain amount of overlap between the two separate stages. It is important to bear in mind that the legislation does not, in fact, prescribe the precise manner or the precise order in which proposals are to be considered in a relocation case. As noted, there has been guidance from the Full Court (including in Taylor v Barker) and the High Court (including in MRR v GR).
[2] It also requires a consideration of whether a proposal is reasonably practicable.
SECTION 60CC(3)(A)
X was interviewed by Ms J. Ms J’s Family Report is annexed to an affidavit filed 24 May 2022. The interviews for the Family Report took place on 27 April 2022. At that time X was aged five years. Ms J asked X if he liked living in Australia. The child replied, "I’d prefer living in [Country B]".[3]
[3] Note paragraph 114 of the Family Report dated May 2022.
Ms J asked X why he preferred living in Country B and he replied – "I don’t know". After further questioning X went on to state that he could see his grandparents if he lived in Country B.
At the time of the Family Report interview, X volunteered to Ms J that he was interested in sleeping overnight at the father’s home.[4]
[4] Note paragraph 126 of the Family Report.
I accept the evidence of the Family Report Writer[5] that X is too young and immature to offer reliable and mature views. This is my own assessment also. The Family Report Writer was concerned that the mother has tried to convince the child that he would prefer to live in Country B. The mother asserted to the Family Report Writer that X has strong connections with Country B – including his Country B family and his Country B culture. But the Family Report Writer pointed out that X could not even remember visiting Country B or the names of his family who lived there.
[5] Paragraph 135 of the Family Report.
SECTION 60CC(3)(B)

The evidence of the parties and the evidence of the Family Report Writer is to the effect that the child has a close and loving relationship with each parent. Ms J also states that the child values both parents and also values his time with both parents.
X does have a relationship with both his maternal and paternal grandparents. Because of the travel restrictions in place during the pandemic, X was restricted in the amount of time he could spend with the extended maternal family – noting that they live in Country B. Because of X’s limited time with the father – he has not been “afforded opportunities to immerse himself in the extended paternal family, the father’s culture, and Australian culture”.[6] I accept this evidence from the father. I note that Ms J also came to the conclusion that the father’s view in this regard appeared to be accurate.[7]
[6] Note paragraph 138 of the Family Report dated May 2022.
[7] Also note paragraph 138 of the Family Report dated May 2022.
Both parents told Ms J that X transitions well between them and that he enjoys his time with each parent – without any major difficulty.
SECTION 60CC(3)(C)
The mother has taken every opportunity to participate in making decisions about the major long-term issues concerning the child. The child has lived primarily with the mother since birth.
The child was born in 2016. As mentioned earlier, the father had been in the United States during 2016. The mother and the father were together in Country B in 2017 – for a short period of time, when X was a baby. At times from late in the pregnancy until 2017, the father stayed at the mother’s house in City C for two to three nights per month. They slept in separate bedrooms. The father lived at various suburbs in Brisbane between late 2017 and 2022, when he and his new partner moved to City C. I accept the father’s evidence that, from 2017, he has tried to be a part of X’s life. I had the chance to observe the father and the mother in the witness box during the course of the trial. I have come to the conclusion that from 2017 the father tried repeatedly to engage the mother in direct negotiations and in mediation in an attempt to come to an agreement concerning X spending time with the father. The conclusion I have reached is that the mother continued to block the father. The mother would not permit X to spend more than a few hours each week with the father. I make the following findings in relation to this aspect of the evidence:-
(a)The mother was unwilling to agree to permit the child to spend more than a few hours with the father each week – until the first Court Orders were made on 31 January 2022;
(b)The child was never permitted by the mother to spend weekend time with the father (without the mother present) prior to the Court Orders of 31 January 2022;
(c)Until late 2020 the mother had frequently stated to the father that he should "leave them alone and get out of their life";
(d)Until the Court Orders of 31 January 2022, the mother consistently pushed back in relation to the sharing of contact information concerning the child;
(e)In relation to the child’s day-care – the mother would not provide the father with the contact details. The mother told the father that he should contact her to manage any situation;
(f)It was not until 2022 (after the making of the Court Orders) that the mother began to share information with the father about the child’s health and wellbeing. Prior to 2022, the mother provided no information to the father about when X was sick or needed to see a doctor;
(g)In March 2020, a serious incident occurred when the mother and the child were involved in a traffic accident. The mother did not tell the father about this incident. The father found out when he asked X what happened to the car; and
(h)Prior to the Court Orders of 31 January 2022, the mother engaged in no consultation with the father concerning childcare, schooling (or schooling plans) or any of his extracurricular activities.
The mother’s repeated attempts to block or limit the father’s time with the child are a matter of great concern to the Court. They are particularly concerning in light of the mother’s proposal to relocate the residence of the child to Country B. I will refer to these matters later in these Reasons for Judgment.
SECTION 60CC(3)(CA)
The child lives primarily with the mother. The mother has fulfilled her obligations to maintain the child. To the extent that the father has been permitted to do so by the mother – he has also fulfilled his parental obligation to maintain the child. I accept the father’s evidence that he currently pays $190 per week to the mother to assist with expenses for X. I also accept the father’s evidence that he attempted to assist financially with X at an earlier point in time, but was rebuffed by the mother. The mother’s response was that she did not need the father’s financial assistance.
SECTION 60CC(3)(D)
This subsection relates to the likely effect of any changes in the child’s circumstances and is focused upon the likely effect on the child of any separation from either of his parents – or other family members. The opinion of Ms J (a qualified psychologist and the Family Report Writer) is that X does not have any psychological ties with Country B – except for the fact that he loves his mother from Country B and her family. Ms J states that the child cannot possibly understand the potential consequences for his relationship with the father in the event that the child moved to live with the mother in Country B. Ms J suspects that the child would see the father less than the child imagines and that would displease X. I am certain that is the case. X reported to the Family Report Writer that he wants more time with his father – not less time. Ms J states that children of X’s age are, ideally, afforded regular and predictable time with both parents.[8]
[8] Paragraphs 136 and 137 of the Family Report.
The Family Report Writer concludes that X appears to have established meaningful connections with the mother and the father. Ms J also concludes that X appears to have a good relationship with the father’s new partner, Ms H. I agree with that assessment.
The Family Report Writer came to the conclusion that it was "possible, if not likely" that the child’s relationship with the father will suffer if X moves to Country B.[9] Ms J was asked about this aspect of her evidence when she gave oral testimony on 3 February 2023. I note the following from Ms J in relation to the child’s relationship with the father in the event that the child was living in Country B with the mother:-
“...I would expect that his sense of identity, you know, may be quite different if he is primarily living in a – in another country with one parent and having, essentially, holiday periods with the father. It would well impact on how well the child feels the father knows and understands him. And that could affect the quality of their interactions, even – depending on how well they maintain relationships across – across countries.”[10]
[9] Paragraph 138 of the Family Report.
[10] Note page 115 of the transcript of 3 February 2023 from line 21.
Further, at page 116 of the transcript of 3 February 2023 on line 8, I note the following evidence from Ms J in relation to the same issue:-
“But the quality of their relationship may be diminished, [X’s], I guess, view of whether the father understands him and truly, you know, is involved or invested or interested could affect the quality of their relationship and their regard for each other.”
I accept the opinion of Ms J in relation to these matters. Ms J was asked about the risk factors for X’s relationship with the father if the parties were geographically separated.
I accept the father’s evidence that it has not always been easy to maintain his relationship with X electronically. This would be a matter of very great concern to the Court in the event that X was living with his mother in Country B.
Ms J also highlighted other risk factors for X and his relationship with his father in the event the child was living with the mother in Country B. This relates to the ability of the mother to facilitate the father-child relationship. At paragraph 151 of the Family Report, Ms J stated:-
“151.After I met with this family I was left pondering how likely it is that [Ms Mesny] would facilitate the father-child relationship if they are separated by international waters, because the father’s time with the child has thus far been limited (by her or otherwise) while the parties have both lived in Australia. The other reason I questioned this, was my observation that the mother did not permit the father to care for the child during her two interviews. It might be noted that instead of offering the father extra time with [X] on the day of these interviews, and managing this day together as ‘[X’s] family’, [Ms Mesny] went to the trouble of arranging for her friend, who was not needed for this process, to care for [X]. This understandably upset the father. She also opted to put [X] alone in front of the television rather than take him across to the father who was waiting to see him after these interviews when she wanted ‘to grab another quick five minutes’ with the writer. That turned into an unnecessary 20 minute wait for [X], [Mr Hartland] and [Ms H].”
In relation to that paragraph, Ms J gave oral testimony also and stated:-
“Again, that would sit as a risk category, depending on how well the mother was able to facilitate the father/child relationship across countries. You know, that would certainly be a determining factor in the quality of [X’s] relationship with his father.”[11]
[11] Note page 116 of the transcript of 3 February 2023 from line 19.
Further, I note the following evidence from the Transcript of 3 February 2023 at page 116:-
“HIS HONOUR: What would – in a situation where one parent lives with a child in another country, you – if it is the case that a parent does not adequately facilitate the relationship with the other parent, well, what’s the net result for the child?
[MS J]: That would cause significant issues in my best prediction. In all reality, the child would develop a very strong sense of himself with that one parent he resides with. And that may not include the other parent in his concepts of what is family and, you know, the people who value him and the people he values could well be sorely affected if the parent he resides with doesn’t value and, you know, truly foster his relationship with the other parent.”
I accept this opinion of Ms J. The evidence reveals that the mother has not been supportive of the child’s relationship with the father. The father’s evidence reveals that the mother actively took steps for a significant period of time to obstruct the child’s relationship with the father. I accept the father’s evidence in relation to this issue. To the extent that the mother denies this was the case – I reject her evidence. The father’s version is consistent with what actually occurred. The father’s time with the child was limited for a long period of time. I accept that this occurred because of the mother’s insistence and because of the mother’s negative view about the father’s involvement in the child’s life.
The evidence shows that at many points in time since the child was born the mother has attempted to limit the child’s time with the father. Not until the Court order was made on 24 August 2022 by the Senior Judicial Registrar did the mother permit the child to spend overnight time with the father on a regular basis. I note that was a consent order. But by that point in time the child was almost six years of age and through all those years, the mother had repeatedly blocked the father and refused to agree to allow X to spend overnight time with the father. This history that I have outlined does not augur well for X’s relationship with his father in the event that the mother were permitted to relocate X’s residence to Country B.
It is worth noting that the orders that the parents had agreed to dated 31 January 2022 did not allow X to spend overnight time with the father.[12]
[12] Those orders were made with the consent of the parties by Judicial Registrar Webb on 31 January 2022.
At paragraph 139 of the Family Report, Ms J states –
“139.If [X] lived in [Country B] it is possible he will have no, or very little time with the father and his family in the future. I note that both parents were avid and regular international travellers, before the pandemic. [X] has also travelled extensively although he might not remember much. I’d add that even if both parents agreed on the mother’s relocation, and [X] was apparently assured as much meaningful time as possible with the father, I would still be concerned about the future of [X’s] relationship with the father given the pattern of care thus far. [Ms Mesny] reported that she is pleased the father is now showing increased interest in time with [X] but I’m not entirely convinced this is the case given her other report that [X’s] time with the father has caused her to have less time with [X] and this displeases her. But perhaps that is a natural reaction. Either way, I’ve assessed that it appears difficult for the mother to truly share [X] with his father.”
I accept the opinion of Ms J as stated in paragraph 139 of the Family Report. The mother’s entire approach towards X’s relationship with the father is concerning. The mother finds it very difficult to truly share X with the father. It is my assessment that X will have limited time with the father in the future if he moves to live in Country B with his mother.
Even at the time of the Family Report interviews in April 2022, the mother believed that X could not manage overnight stays with the father. This was apparently because the child was still breastfeeding – at the age of five years. It does not appear to have occurred to the mother that, in the child’s best interests, the mother could have weaned the child by April 2022 so that the child could manage overnight stays with the father. For whatever reason (whether it be breastfeeding or otherwise) the fact that even when the child was aged five years the mother was asserting that the child would not be able to manage overnight stays with the father – indicates to the Court the mother’s inability to come to terms with the fact that X needed and continues to need substantial involvement and time with the father.
Ms J gave evidence on 3 February 2023. At page 114 of the transcript I note the following evidence from Ms J –
“DR WILSON: The evidence is that [X’s] first overnight was at age five […]. Would you like to express any opinion on how a delay in such overnight staying with the father might hinder a relationship with the father developing?
[MS J]: Generally speaking, if a child has not commenced overnight stays until – at the age of five or so, one would expect that they may – you know, may be still adjusting to overnight periods in the initial phase of that being introduced. I guess, given my experience that most children his age have already commenced overnight time at a young stage then, in – it’s – you know, it’s quite plausible that the relationship has not had the same opportunities to strengthen, you know, just due to lack of experience of overnight stays and the child being able to trust that that parent can meet their needs.”[13]
[13] Transcript of 3 February 2023, page 114 from line 27.
The delay in the commencement of overnight time between X and the father was brought about because of the intransigence of the mother. That delay led the Report Writer to conclude that it is quite plausible that the relationship between the child and the father has not had the same opportunities to strengthen. I accept this evidence from Ms J.
In the event that both parents remain living in City C – there will be no adverse impacts on the child of any separation from the parents. X will have the benefit of both parents being substantially involved in his life.
SECTION 60CC(3)(E)
If the child remains living in City C – there will be no practical difficulties and no additional expenses involved in the child spending time with and communicating with the parents.
In the event that the child were to move to live in Country B with the mother – there will be significant practical difficulties and additional expenses to facilitate the child spending time with the father.
As noted, there has previously been difficulties for the father communicating electronically with X. I infer from the available evidence that this has come about because of, or primarily because of, the mother’s lack of commitment to the father and son relationship.
Further, s 60CC(3)(e) also directs the Court to consider whether a particular order (for instance, in this case, an order permitting the mother to relocate X’s residence to Country B) will substantially affect X’s right to maintain personal relations and direct contact with his father on a regular basis. To a large extent, I have already considered these matters when having regard to s 60CC(3)(d). It will be apparent that the Court holds grave concerns in relation to X’s right to maintain personal relations and direct contact with his father – in the event X were living in Country B with his mother.
SECTION 60CC(3)(F)
Both of the child’s parents and, I infer from the evidence, the extended members of each parent’s family, have the capacity to provide for the needs of X – including his emotional and intellectual needs. My view in this regard is subject to the finding of the Court that the mother has, over time, taken steps to limit the father’s involvement in the life of the child. To this extent, the mother has failed to appreciate the emotional needs of the child.
SECTION 60CC(3)(G)
The child is quite young and I have already made comment in relation to this aspect of the evidence. I have taken into account the fact that X’s mother is from Country B and X’s father is Australian. It is important for X to have an appreciation of both cultures.
Further, I find that the father has been, and will continue to be, supportive of X’s Country B heritage and the father will continue to support X to maintain his understanding and links to the culture of Country B and to X’s family in Country B.
I am far from convinced that the mother places any real value on X’s Australian heritage. Further, in the event that X were living with his mother in Country B – I consider it likely that the mother will not support X’s connection with the culture, heritage and traditions of Australia.
SECTION 60CC(3)(H)
Section 60CC(3)(h) is not relevant in this case.
SECTION 60CC(3)(I)
Both parents have a good attitude towards the child and to the responsibilities of parenthood. My comment in this regard is subject to one caveat. The mother has, historically, had difficulty supporting the child’s relationship with the father. In my view, one of the responsibilities of parenthood involves a parent supporting and facilitating a child’s relationship with the other parent. In this regard, as noted, the mother has fallen short.
SECTION 60CC(3)(J) AND SECTION 60CC(3)(K)
Section 60CC(3)(j) and s 60CC(3)(k) are not relevant in this case.
SECTION 60CC(3)(L)
It’s difficult to say in the context of this case whether there is an order that could be made that would be least likely to lead to the institution of further proceedings in relation to the child. Having said that, the view that I have formed is that an order that required X to remain living in City C is certainly less likely to lead to problems relating to X spending time with both his mother and his father – which will likely mean less litigation.
SECTION 60CC(3)(M)
In paragraph 149 of the Family Report, Ms J has stated, inter-alia:-
“149.If the Court made the orders sought by the father, the child will be assured an ongoing relationship with both parents. The mother might struggle emotionally at some level but she has for 16 years had an established career, home, and life in [City C] and there is no reason why this cannot continue. It would be important for the mother to have the opportunity to regularly visit her family, and to be allowed to travel at late notice if there was some emergent reason.”

I accept this opinion from Ms J. It is the case that X will be assured of an ongoing relationship with both his mother and his father in the event that X remains living in City C.
As to the "orders sought by the father" – Ms J was asked about this when she gave her oral testimony. Before turning to that testimony, I do note that Ms J stated an opinion at paragraph 172 of the Family Report in relation to X’s time with the father from the end of the 2022 school year. The recommendation was that X start spending each Tuesday overnight with the father and each alternate weekend from Friday after school to Monday morning with the father. This recommendation was adopted by the parents and was then embodied in a consent order made by the Senior Judicial Registrar on 24 August 2022. In particular I note Order 2(e); (f); and (g).
When Ms J gave oral testimony on 3 February 2023 she was asked to express an opinion in relation to the father’s proposal for an equal time order. The structure of the proposal was clarified by the father as follows:
Week one: Monday night and Tuesday night.
Week two: From Friday afternoon to Wednesday morning.
This equates to 7 nights per fortnight. When this proposal was drawn to her attention by Dr Wilson, Counsel appearing on behalf of the father, Ms J’s evidence was as follows –
“I wouldn’t have any concerns about that becoming the arrangement by the end of this year. My recommendations went as far as they did because – or stopped where they did because the child had not even experienced overnight care at that stage.”[14]
[14] Note transcript of 3 February 2023, page 126 from line 8.
Ms J was cross-examined by Ms Oakley, Counsel appearing on behalf of the mother. Unfortunately, Ms Oakley (no doubt inadvertently) repeatedly referred Ms J to the Family Report interviews taking place in April 2021. The Family Report interviews took place in April 2022. The first set of parenting orders were made in January 2022. It was not until those orders were made that the mother permitted the father to spend more substantial and regular time with the child – but the mother at that stage had not yet agreed to overnight time.
The upshot of the cross-examination of Ms J by Ms Oakley in relation to the question of equal time was that Ms J made appropriate and sensible concessions. Ms Oakley suggested to Ms J that an assessment would be necessary for the expert to express an opinion about whether equal time was appropriate for this particular family. Ms J agreed with that suggestion. It is obvious. Indeed, Ms J had already assessed this family. In relation to this aspect of the evidence - my view is that it was, in the context of this case, the obligation of the parties to put before the Court any expert evidence upon which they wished to rely. The parties could have obtained a more up-to-date assessment prior to the commencement of the trial in February 2023. They chose not to do so. In each set of family law proceedings the optimum situation would be for an updated Family Report to be prepared just prior to the commencement of the trial. Alas, we do not live in a perfect world. Further, it is the usual practice for the parties to put before the expert their current proposals at the time of the trial – when the expert is giving oral testimony. It is apparent from her oral testimony that Ms J was well aware of the current parenting arrangements for X. The five nights per fortnight currently in place (in accordance with the August 2022 Order and, commencing from January 2023) are in line with the recommendations of Ms J in the Family Report. Further, it is, of course, a matter ultimately for the Court to determine whether or not the evidence would support an equal time order.
It was put to Ms J that the father’s evidence is that there had been difficulties in terms of communication between the parents.[15] This is correct. My assessment is that this is because of the mother’s intransigence and her unwillingness to facilitate the child’s relationship with the father. The mother, notwithstanding her reluctance to facilitate the child’s relationship with the father – nonetheless has the capacity to communicate appropriately. I will return to this point later in these reasons.
[15] Note page 127 of the transcript of 3 February 2023 from line 30.
It was put to Ms J that compliance with the orders that were made by the Court in August 2022 indicated the mother’s willingness to facilitate the relationship between the child and the father. The view that I have formed is that this is only true up to a certain point. Of course the mother has complied with the Court orders. What option did she have? Refusal to comply with the Court orders would likely have led to a contravention application. Further, the view that I have formed, based on my impression of the mother in the witness box and her conduct to date, is that the mother’s reluctant willingness to support the child’s relationship with the father has been geared more towards her own desire to impress the Court in order to obtain a favourable outcome relating to her relocation proposal. The mother has sufficient intelligence to comprehend that if she had not consented to the orders contained in paragraphs 2(e); (f); and (g) made on 24 August 2022 – following the precise recommendation of Ms J – it would not have assisted the mother’s application for relocation. Furthermore, if the mother had not complied with those orders once made, once again, the mother has sufficient intelligence to understand that it would not have assisted the mother’s prospects of success in an application for relocation.
The findings I have made here in relation to the mother are based on the evidence – especially the historical evidence of the mother’s conduct relating to the child’s relationship with the father and on my assessment of the mother’s evidence in the witness box.
When the mother enrolled X at school in City C, she was required to provide emergency contact details. The mother included her own name and she included her parents. The maternal grandparents live in Country B. The mother did not include the father’s name as an emergency contact. The application for enrolment was to K School. It was an application for X to commence Prep. The mother signed the document and dated the document December 2021. This must mean that X was to commence Prep at the beginning of 2022.[16] Approximately one month after signing the application for enrolment, the mother filed a Response document seeking an order that would grant her permission to relocate X’s residence to Country B. The mother’s opinion of the father was so low that she did not include the father as an emergency contact for X with K School. At that point in time the father was living approximately one to two hours’ drive from City C. I find it extraordinary that the mother included her own parents as emergency contacts for young X – even though the maternal grandparents live in Country B – but did not include the father.
[16] Even though the front of that document indicates that Prep was to commence in 2021 – the inference I have drawn from the date the mother signed the document is that Prep was to commence at the beginning of 2022.
Of even further concern to the Court is the fact that the mother attempted to mislead the Court in her oral testimony in relation to this issue. On 3 February 2023 the mother was cross‑examined by Dr Wilson. When asked whether the mother had provided the father’s contact details to the school, the mother answered – "I’m not sure about that".[17] At line 43, the mother stated again, "I’m not sure about that. I can’t recall”.[18] I do not accept the mother’s evidence in this regard. I do not accept that the mother was not sure as to whether or not she had provided the father’s contact details to the school. The impression I formed was that the mother was attempting to mislead the Court on this point.
[17] Note transcript of 3 February 2023 page 92 line 41.
[18] Note transcript of 3 February 2023 page 92 line 43.
Later in cross-examination, the mother sought, and I permitted her, to clarify that she did not include the father as an emergency contact, “because I was expecting him to fill the father part and put all his contact in there”.[19] This evidence by way of clarification was given only a few minutes after the mother had previously sought to convince the Court that she could not recall the details relating to the provision of the emergency contact numbers.
[19] Note transcript of 3 February 2023 page 96 lines 46 - 47.
Further, the mother did not even consult the father before enrolling X at K School.[20] In relation to the mother’s plans to relocate X’s residence to Country B, the mother has chosen a school in Town L in Region M. The mother was questioned as to whether or not she had consulted the father before the mother chose the school in Town L. The mother’s evidence was evasive. I find that the mother did not consult the father in relation to her choice of school for X in Country B. The mother did not want to admit this to the Court. The mother’s evidence in relation to these issues was not impressive.
[20] Note transcript of 3 February 2023 page 92 line 26.
It is completely understandable that the mother wishes to speak Country B language to X – in order to assist his command of that language. In an extraordinary passage of the evidence it was revealed that the mother had never spoken to X in English until the Family Report interviews in April 2022. At that stage the child was aged five years. The issue was raised in cross-examination – in relation to the fact that X’s English reading was not as proficient as other children in the class.
The father commenced seeing X on a Monday morning after about October 2017. This was the only time the mother would permit the father to see the child. The mother would not agree to any other time. The mother would not agree to weekend time on a regular basis.[21]
[21] Note transcript of 3 February 2023 page 98 line 9.
In November 2019, the father wanted X to spend some time with him over a weekend. The mother agreed to some time over a weekend at the father’s (then) residence in Suburb N, Queensland. The mother stipulated to the father that she would not allow X to have time with the father at Suburb N if the father’s new partner, Ms H, was present. The mother expressly denied this in the witness box.[22] I do not accept the mother’s evidence. I find that the mother has not told the truth in relation to this matter.
[22] Note transcript of 3 February 2023 page 98 line 17.
Further, the mother would not permit X to spend time at the father’s house at Suburb N– unless the mother was also present. The mother’s evidence on this issue was evasive. [23] The mother was not candid with the Court. The mother was reluctant to admit that she stayed at the Suburb N house that weekend because she insisted on doing so.
[23] Note transcript of 3 February 2023 page 98 line 21.
The father’s time with the child had been limited by the mother to Monday morning time. On an occasion when the mother did agree for a weekend in November 2019 – it seems inconceivable that the father would invite the mother to stay at the house in Suburb N – unless the mother was insisting upon doing so. Further, the mother, in fact, had proposed that she would sleep in a tent in the front yard. But, I find, that the father offered the spare bedroom to the mother. The mother maintains this was the father’s proposal. I find that it only occurred because the mother was insisting on staying at the Suburb N house while X was there.
It is a poor reflection on the mother that she would not permit the child to have a weekend alone with the father in November 2019. It is an even worse reflection upon the mother that she would come to this Court and deliberately attempt to mislead the Court. I found the mother to be a very unimpressive witness. The mother was less than candid in relation to many aspects of her evidence. The mother’s lack of credibility is a matter of significant concern for the Court.
Ms Oakley made valiant attempts to lessen the weight that the Court might otherwise give to the opinions of Ms J. The view that I have formed is that Ms J was well-versed in relation to the issues confronting this family. That is certainly the case up to and including the time that Ms J saw the family in April 2022. The fact that there may have been some "remedial" aspect to the original recommendations is interesting but, in my view, does not detract from the opinions of Ms J. At page 128 of the transcript on 3 February 2023 from line 34 I note the following question and answer –
“MS OAKLEY: [Ms J], I will go back to the question of equal time. I want to suggest that a part of your reasoning and what unpinned the recommendations in your report prepared last April was to address the question of, for whatever reason, the fact that this little boy hadn’t had overnight time with his father. That would be correct, wouldn’t it?
[MS J]: Yes.”
Counsel used the expression "for whatever reason". The reason that the child had not spent any overnight time with the father as at April 2022 was because of the fact that the mother resolutely continued to block any attempts by the father to spend overnight time with the child on a regular basis. It is a particularly unattractive argument for a parent to come to the Court and, having both blocked the other parent’s attempts to spend overnight time with the child and taken a non-cooperative approach to communication – then, argue in court that the non-resident parent’s time with the child should not be increased on an ongoing basis because that parent does not have sufficient experience caring for the child for more extended overnight time periods or because the parties can’t communicate sufficiently well. The reason that there needed to be a remedial aspect to the original recommendation from Ms J was solely because of the mother’s lack of cooperation with the father and the mother’s lack of support for the child’s relationship with the father.
At page 129 of the transcript on 3 February 2023 I note the following evidence from Ms J –
“MS OAKLEY: And, taking up that answer, can I suggest that that had a great deal to do with your approach to the question of his relocation on a permanent basis to [Country B] with his mother, that you were not in a position to really put your mind to that because you were concerned about this remedial approach to his relationship with his father?
[MS J]: I guess I would say that certainly the assessment question related to how the proposed relocation overseas might impact the child and it is a cross-section on that assessment, you know, of a moment in time and, at that time, I certainly did turn my mind to how it might impact on [X] if the mother’s application or, indeed, the father’s application was successful.”[24]
[24] Transcript of 3 February 2023, page 129, line 19.
A Family Report can only ever provide to the parties and to the Court an assessment at one particular moment in time.
It was put to Ms J by Counsel for the mother that the current situation in respect of this family paints "a very different picture from the concerns that ([Ms J]) identified in April (2022)”.[25] Neither the mother nor the father placed before Ms J any updating affidavits. Ms J answered – “I would say that it would be difficult to answer that without having a thorough consideration of all aspects that have occurred since April last year.”[26]
[25] Transcript of 3 February 2023, page 130, line 9.
[26] Transcript of 3 February 2023, page 132, line 10.
I accept the evidence of the father that X’s time with the father has been progressing well. The mother must accept this also. It is implicit in the questions posed by Counsel for the mother.[27] There is no suggestion to the contrary in the written submissions provided on behalf of the mother.
[27] In particular I note the transcript of 3 February 2023, page 133 from line 29.
Ms J was asked about this – in an attempt to have Ms J support the mother’s proposal for a relocation. Ms J stated -
“[MS J]: I guess I would have to say that I would still have concerns about an arrangement that saw [X] live in one country with one parent and absent of the other, even if the relationship with the father has improved and the parenting arrangement has been complied and I guess the – you know, my concerns outlined in my report, but, obviously, it is a positive – I guess, two positives. If [X’s] relationship with the father has progressed in a positive way and the mother’s facilitation of father/child time has improved as well.”[28]
[28] Transcript of 3 February 2023, page 135 from line 26.
I consider that this opinion expressed by Ms J is correct. The evidence is such that the Court does have concerns about the impact upon X’s relationship with the father in the event that X was living in Country B and the father was living in Australia.
Underpinning the mother’s application for relocation to Country B is the proposition that the mother will support the child’s relationship with the father and facilitate the child’s relationship with the father by word and deed – including facilitating time and communication – both electronically and in person. Because of the credit findings I have made against the mother and because of the mother’s (I find) historical lack of support for the relationship between X and the father – the Court holds very grave concerns for the relationship between X and the father in the event that the mother were permitted to relocate the residence of the child to Country B.
As has been noted, the Court does not have the benefit of an updated Family Report relating to the precise question of equal time for X between the parents. That is the way both parties chose to run the trial. At a Case Management Hearing prior to the trial, I raised with the parties the possibility of the appointment of an Independent Children’s Lawyer.[29] The parties were not in favour of such an appointment. In particular, the mother, I infer, was concerned that such an appointment would delay the hearing of the trial.
[29] In particular, I note the transcript of 3 February 2023 from page 153.
Even though there is no specific written Family Report concerning the question of equal time – I do note the following:-
(a)From January 2023 the child commenced spending five nights per fortnight with the father (in accordance with the Order dated August 2022);
(b)Both the father and the mother accept that the child’s time with the father has been progressing well; and
(c)At the very least it can be said that Ms J provided a tentative opinion in her oral testimony in support of an equal time order – with the obvious caveat that the optimum scenario would have seen an updated Family Report prior to the commencement of the trial.
The determination as to whether or not an equal time order will be in the best interests of a child is always a matter for the Court. It is not a matter for an expert witness. I reject any suggestion that the Court is precluded from making an equal time order – in the absence of a specific written Family Report addressing the issue.
In the father’s most recent affidavit (filed 1 February 2023) he confirmed that X had adapted well to having extra time (including overnight and weekend time) with him since August 2022.[30]
[30] Note paragraph 125 of the father’s affidavit filed 1 February 2023.
The father was an impressive witness. I accept the father’s evidence.
The father’s partner, Ms H was also an impressive witness. I accept that X has a good relationship with Ms H. Ms H is a good support for the father when he is parenting X.
The current operative parenting order (dated August 2022) has seen X’s time with the father progress to five nights per fortnight. As noted previously, the five nights per fortnight only commenced in January 2023. The trial took place at the beginning of February 2023. I was impressed with the father’s approach to parenting and his attempts to continue to build his relationship with X. I note the many activities he has engaged with X in following the August 2022 Orders. X’s relationship with the father’s partner is "increasingly good".[31]
[31] Paragraph 122 of the father’s affidavit filed 1 February 2023.

I note the following evidence from the father in his affidavit filed 1 February 2023 ;-
“123.In comparing the 2022 school reports for [X], Grade P, from Semester 1 (Exhibit 1)and Semester 2 (Exhibit 2), we note the sections headed "Social and Learning Behaviours" In Semester 1, [X] was recorded as "Support required" (score 2 on 5 point scale) in 5 areas including "shows confidence", "able to cope with change", "makes connections with peers", but by Semester 2, he has all rankings of 3 or 4 (satisfactory or good) in these behaviours.
124.In her Semester 2 2022 report, [X’s] teacher ([Ms P]) reported that [X] is progressing well in studies and is mostly ‘Good’ (4 on a 5-point scale) in his learning habits in all subjects, but [X] ‘still needs some support around friendships and play’. "It has been pleasing to witness a continued growth in [X’s] confidence in all aspects of school life as the semester has progressed". [Ms P] commented that [X] had made vast improvements in the 2nd semester, which is the time coinciding with increased frequency and duration of stays at my house.”
The evidence shows that X has grown in confidence since his time with the father has been longer and more regular. Whereas X previously did not like school (this was noted in the Family Report) – X commenced the school year 2023 on a very positive note. I accept this evidence from the father.[32] The view that I have formed is that the current arrangement for X is working well. To put it another way – an order for substantial and significant time (as defined in s 65DAA) is currently in X’s best interests. The current order falls within that definition.
[32] Paragraph 125 of the father’s affidavit filed 1 February 2023.
The next question for the Court to determine is whether or not an order for equal time will, either now, or in the future, be in X’s best interests? As I have already noted, Ms J provided a tentative opinion when she said, taking into account her knowledge of the family as at the time of the Family Report Interview in May 2022, that by the end of 2023 an equal time arrangement would be appropriate for X. This is a tentative opinion not based on an up-to-date assessment. But at the end of the day, this is a matter for the Court.
The mother, in my view, maintains a negative view of the father. The mother was not an impressive witness. As I have already stated – the mother was on more than one occasion, less than candid with the Court – to say the least. To my mind, it remains unclear as to whether or not the child is continuing to be breastfed by the mother. I note paragraph 132 of the father’s affidavit filed on 1 February 2023. The father maintains concerns in relation to that matter. The Court also has those concerns. The mother’s lack of credibility as a witness does not assist.
In addition, the Court is concerned by the evidence contained in paragraph 126 of the father’s affidavit filed 1 February 2023. At the age of six years old the child still needs, it seems at least on occasions, to wear a nappy.
The child has been in the primary care of the mother since birth. In relation to issues such as breastfeeding and nappy wearing involving children of school age – one would have to say that, at the very least, it is unusual. I am careful here not to criticise the mother’s parenting in this regard – however, my view is that the father brings to the equation a different parenting approach and a different parenting style and, it seems to me that the child would benefit from seeing his father more often.
The view that I have formed is that an order that progresses to equal time will be in the best interests of the child.
Before I leave this topic – I would note that the mother’s position is that, in the event the Court did not grant the mother permission to relocate the residence of the child to Country B – the mother seeks an order that the child spend three nights per fortnight with the father during term time. Having regard to the findings that I have made and my view of the parties as witnesses – the conclusion I have drawn is that this would be a completely unacceptable arrangement for X. It would not be in X’s best interests to now reduce his time with the father. It is a further indication to the Court of the mother’s lack of insight. It is a further indication to the Court of the mother’s negative view towards the father. It is a further indication to the Court of the mother’s unwillingness to truly support and facilitate the child’s relationship with the father.
My conclusion is that an order for equal time is in X’s best interests. It ought not to commence immediately though. The five nights per fortnight was said to be “progressing well” but, by definition, that means that it is a ‘work in progress’. To give the relationship between X and the father further time to strengthen – I have come to the conclusion that rather than commence equal time in the first school term of 2024 – equal time should commence in the second school term of 2024 – namely, after the Easter holidays 2024. It will be in X’s best interests to live in an equal time arrangement with his parents (in the terms sought by the father) from the commencement of the second school term in 2024.
SECTION 65DAA
Section 65DAA(1) states:-
“65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.”
It will be apparent from these reasons I have come to the conclusion that equal time living arrangements for X between his parents will be in X’s best interests. My view is that it will be in his best interests for this to commence in school Term Two, 2024. This allows for an extra period of time beyond what was tentatively opined by Ms J and takes into account my impressions and my findings of the strengthening of the relationship between X and his father.
SECTION 65DAA(5) – REASONABLE PRACTICALITY
Section 65DAA(5) states:-
“Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.”
Both of X’s parents currently live in the town of City C. X attends school in City C. X’s recent school reports show an improvement in his confidence level. City C is not a major city. If both parents remain living in City C, then – from this perspective – it will be reasonably practicable for an equal time order to be implemented. There was a suggestion in the evidence that the mother might consider working and/or moving to Town Q. Town Qis quite close to City C and no more than a 30 to 40 minute drive. If such a move eventuated it would, in my view, still be reasonably practicable for an equal time arrangement to be implemented for X. It would also be in his best interests. I would state, though, that this particular issue was not addressed in the written submissions on behalf the mother. The Court is somewhat in the dark then about the mother’s intentions in this regard. The better outcome for X would see both parents remain living in City C – even if the mother was, for instance, working in Town Q. The evidence suggested that the mother may only be required to work in Town Q three days each fortnight. This would allow X (and the mother) to remain living in City C. Because of the lack of clarity in relation to the mother’s intentions – the Court cannot be more specific at this point in time. If requested by the parties – the Court will consider hearing a further submission on this matter.
Both parents came to the Court and indicated that X’s living arrangements whereby he was spending five nights per fortnight with the father was "progressing well". That indicates to the Court that the parents have the current capacity to implement a substantial and significant time arrangement. My view is that these parents are both intelligent enough for the Court to conclude that they also have the current capacity to implement an equal time arrangement.
The same goes in respect of the future capacity of these two parents to implement an equal time arrangement. Both parents are highly intelligent. Both parents have the capacity and will have the capacity in the future to implement an equal time arrangement for X (note s 65DAA(5)(b)).
The question of the ability of the parents to communicate loomed large during the course of the hearing. Section 65DAA(5)(c) requires the Court to have regard to “the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind”.
To begin with, the Court is presently in a position to make a finding that these parents both have the capacity to communicate with each other and resolve difficulties in such a way that it can be said that they are able to support a substantial and significant time arrangement. That is, the current arrangement of five nights per fortnight. Again, to my mind, these parents both also have the capacity to communicate sufficiently to support an equal time arrangement. The fact that there have been difficulties in communication in the past is an issue that needs to be addressed by the Court head on. The reason there have been difficulties with communication in the past is because the mother has a negative view of the father and it is also because the mother has not truly supported the child’s relationship with the father. The mother has taken an obstructionist approach. The mother initially resisted all reasonable efforts made by the father to spend regular time with the child. The mother then went on to do everything she could to prevent the child’s time with the father from increasing. It wasn’t until the Court orders (initially in January 2022 and then subsequently in August 2022) that the child began to spend an increased amount of time with the father. Ms J was surprised at the lack of time that a child of X’s age had spent with the father. This lack of time only occurred because the mother obstructed the father’s attempts to spend more time with the child. The mother acted wilfully and without justification. The mother does not like the father. The mother considers that the father abandoned her and the child – once the mother fell pregnant. No doubt the mother found herself in a difficult situation. The parents had conducted an affair for many years. That is not a word I use very often in judgment writing – but it is the only way to describe what occurred. The father remained married to his wife and remained living with his wife.
The mother is a highly intelligent woman. She has the capacity to communicate with the father and to resolve any difficulties that might arise in implementing an equal time arrangement. That is all that is required. The Court, in my view, should not condone the mother’s conduct. The mother, wilfully, has done her best to restrict communication – or at the very least make communication difficult with the father. It is not appropriate for the mother to then come to the Court and mount an argument that the parties don’t communicate well and hence this is a reason why there should not be an equal time order.[33] The mother has the capacity to communicate sufficiently and the mother has the ability to resolve difficulties with the father.
[33] Or, for that matter, a substantial and significant time order.
I am completely satisfied that the father has the capacity to communicate with the mother in an appropriate way and to resolve difficulties that might arise in implementing an equal time arrangement.
As to the impact that an arrangement of that kind would have on the child (s 60CC(5)(d)) – the Court notes that young X has (according to both parents) handled the increase in time to five nights per fortnight well. It must be kept in mind that he was coming off a very low base. The mother had restricted time so severely that the increase to five nights per fortnight in January 2023 happened quite quickly. All changes of arrangements for children take time to settle. Young X has had to deal with a lot in his short life. He is living in a separated family and, noting that I accept the father’s evidence, the view that I have formed is that X’s increase in time with the father has been a very great plus for him. I accept the father’s evidence that this young boy has grown in confidence in spending more time with his father. The father’s view in that regard is supported by comments from X’s school. I’m satisfied that X will adapt well to an equal time arrangement – in the same way that he has adapted well to the substantial and significant time arrangement (five nights per fortnight).
One of the matters for the Court to take into account under s 65DAA(5)(e) is the fact that the mother does not want to live in City C. The mother very much desires to return to live in Country B. I do note however that the mother has lived for approximately 16 years in City C. The mother has an extensive work history in City C and in other parts of Queensland. The mother is highly experienced in her field. The mother is well situated financially. The mother has a good income with her employment in City C and the mother has cash reserves of $500,000. That would permit her to travel to Country B to see her family (with X) on a regular basis. The factual scenario in the case currently before the Court is very different to the factual scenario, for instance, in the case of MRR v GR. I find that the mother has established professional and social networks in City C. In this regard I particularly note the evidence of the father contained in paragraph 14 of his affidavit filed 31 October 2022. I prefer the evidence of the father in relation to these matters. The mother maintains that her emotional wellbeing will be significantly better if she were permitted to live in Country B with X. This may be correct – but there is no compelling evidence on the issue. I accept that the mother is likely to be happier if she is living in Country B. But I must say, even that is not a conclusive view. The parents in this case got themselves into an incredibly complex situation. The parents carried on a clandestine affair for many years. The mother fell pregnant; the father was living in America and studying at the time; the father formed a relationship with another woman in America and the father was not willing to give up that new relationship and live permanently with the mother and the child. This is not a court of morals. But it must be said that both the mother and the father each respectively only have themselves to blame for getting themselves into such a complex situation. Obviously the emotional toll on both parents has been significant. On the mother – because her earnest desire was that she and the father would live together as a couple and raise X together. On the father – because his attempts to spend time with X and establish a relationship with him were continually blocked by the mother. Also, the father had the obvious emotional issue to deal with – relating to his first wife Ms D. When people permit their lives to become so complex – there will be an emotional toll. I have carefully taken into account the mother’s evidence and her submissions concerning her emotional health.
I note the mother’s evidence and submissions relating to the fact that, apparently, very early on in X’s life the father did not show much interest in being involved in X’s life. The father may also have suggested to the mother that she would obtain greater support in Country B. But the mother did not move to Country B and, even if the father was reluctant to become involved in the boy’s life very early on – the fact of the matter is that he woke up to himself and realised that it would be a better outcome for X if the father did play an active role in X’s life. In my view, in the particular circumstances of this case, those submissions and that evidence carry very limited weight.
My conclusion is that a substantial and significant time arrangement for X is both in his best interests and reasonably practicable from now until Term Two 2024 – provided X remains living in City C with his mother.
Further, I conclude that an equal time arrangement for X between his parents is both in his best interests and reasonably practicable from the second term of 2024. This, once again, is obviously provided the child and the mother remain living in City C. These arrangements would, obviously, not be reasonably practicable if the child and the mother were living in Country B and the father remains in City C.
THE MOTHER’S PROPOSAL FOR RELOCATION
In these Reasons for Judgment thus far I have made references to the mother’s proposal to relocate the residence of the child to Country B. It has to be said that there would be certain benefits to X in moving to live in Country B with his mother. To begin with, the mother wants to live in Country B. The mother will likely be happier if she is living in Country B. X will have ready access to the maternal family – all of whom live in Country B. Also, X has a sister (the adult child of the father) who now lives in Country B.
If X was living in Country B with the mother he would, obviously, be able to be fully immersed in the culture and the heritage of Country B and the Country B people. This would be a benefit to X.
The mother has job offers in Country B. It seems that, over time, the mother has had more than one job offer in Country B. The mother would be able to pursue her chosen career in Country B and be closer to her family.
The mother’s hopes of a life together with the father in Australia did not eventuate. Obviously, the mother is extremely disappointed about this. I accept that the mother is genuine in her desire to move to live in Country B with X.
The two primary proposals put before the Court by the parents in this case are:-
(a)The father’s proposal for X to live in an equal time arrangement between the parents in City C; and
(b)The mother’s proposal to relocate X’s residence to Country B.
If the mother and the child were living in Country B – the mother proposes electronic communication between X and the father. I accept the father’s evidence that this has been somewhat problematic in the past. The view that I have formed is that this is because of the mother’s historic lack of interest in supporting the child’s relationship with the father.

The mother proposes holiday time between the child and the father – should the mother be living with X in Country B. The mother also proposes that the father would be able to travel to Country B to spend time with the child in that country.
Ms J expressed her concerns in relation to the mother relocating X’s residence to Country B. I note that these concerns were raised by Ms J on more than one occasion. I note paragraph 151 of the Family Report. I have already highlighted this paragraph earlier in these reasons. Ms J continued to express concerns about an arrangement that would see X living in Country B with the mother and the father remaining in Australia.[34] I accept Ms J’s opinions relating to these matters.
[34] Transcript of 3 February 2023 page 135 from line 26
I hold grave concerns for the relationship between X and the father in the event that X went to live in Country B with the mother. I was left unimpressed by the evidence of the mother. The mother was not truthful with the Court. The mother’s assurances that she would support and facilitate X’s relationship with the father – from Country B – are not convincing. The mother did herself a very great disservice by not being candid with the Court. At times, the mother's evidence was evasive. On other occasions, the mother’s evidence was untruthful. It left the Court with a poor impression in relation to the mother’s testimony. And it leaves the Court very doubtful of the mother’s assurances that she would facilitate and support X’s relationship with the father from Country B.
Ms J was asked specifically for her opinion in relation to the question of the mother’s proposed relocation. I note the following evidence from Ms J at page 143 of the transcript on 3 February 2023:-
“MS OAKLEY: When you saw this family and made your assessment of them. What are the things that you would have needed and wanted to see to support an overseas location for [X]?
[MS J]: It’s a fairly big question. And, again, you know, this draws on the uniqueness of each family. But if I speak generally, you know, having very a strong, established, healthy co-parenting relationship, having both parents truly honouring the child’s relationship with both parents, having both parents, I guess, fully included in all aspects of the child’s life, parents considering each other equal partners in raising its child, I guess, you know, again I’m talking about the optimal levels. Having ‑ ‑ ‑
MS OAKLEY: Can I ask you to address yourself ‑ ‑ ‑
HIS HONOUR: No, she hasn’t finished what she [is saying]. Keep going.
[MS J]: Having a very cemented – the child having a very cemented relationship with both parents, there are, I guess, factors around the child’s age and cognitive capacity to, essentially, maintain relationships, despite the difference – sorry, the distance. So, I – I guess there are – there are – there’s probably a raft of factors that might either relate to the mother or father as an individual, the child as an individual, but also the co-parenting relationship.”
I accept this evidence of Ms J.
The Court clarified with Ms J at page 145 of the transcript of 3 February 2023 as follows:-
“HIS HONOUR: ...before the court would be satisfied that it’s in [X’s] best interests to move to [Country B] with his mother, in that answer that you gave, the words you used, is part of that answer that it’s your opinion that the court would need to be satisfied that the mother would support and facilitate the child’s relationship with the father?
MS J: Yes. That would be important.
HIS HONOUR: Right. How important?
[MS J]: Quite significant, I would imagine, if – if one parent is the trusted parent and in that scenario the mother would be [X’s] trusted and ever present parent. Her attitude and towards the father and ‑ ‑ ‑ her regard for the father would have significant ‑ ‑ ‑”
Unfortunately the transcript at line 20 on page 145 (3 February 2023) does not include the remaining words of Ms J’s sentence. However, it is apparent that Ms J was highlighting the significance of the mother’s attitude towards the father and the mother’s regard for the father. These were highlighted as significant matters for the Court to consider.
It cannot be said that there is currently a healthy co-parenting relationship. It is apparent from the father’s most recent affidavit that the mother continues to, for instance, maintain her habit of only reading emails on a Tuesday.[35] This is not a sensible approach by the mother. That is putting it mildly. It is not a child-focused approach by the mother. As I have already indicated – my conclusion is that that both of these parents have the capacity to communicate appropriately. Fortunately, the actual relationship at the moment between the father and the mother is civil. I accept the father’s evidence at paragraph 128 of his affidavit filed 1 February 2023. It cannot be said that the co-parenting relationship is ‘strong, established and healthy’ – as recommended by Ms J.
[35] Note paragraph 129 of the father’s affidavit filed 1 February 2023.
Further, it will be apparent from these Reasons for Judgment that the Court has found that the mother does not truly honour the child’s relationship with the father. I have already made several findings in relation to this issue. The mother does not hold the father in high regard. The mother’s attitude towards the father has been dismissive. The opinion of the expert is that the mother’s attitude and regard for the father would be important matters for the Court to take into account. It is also, obviously, the case that the Court would need to be satisfied that the mother would support and facilitate the child’s relationship with the father if X were living in Country B with the mother. It will be apparent from these reasons that I have concluded that the mother would not be inclined to support and facilitate the child’s relationship with the father – to the extent that she would need to do it in order to preserve and strengthen the child’s relationship with the father across the oceans.
Since the making of the court orders in January 2022 and August 2022, the father has become much more included in all aspects of the child’s life. The child’s life with the father and time with the father is “progressing well” but – as I have already stated, remains a ‘work in progress’. That is always the case when there has been a change in parenting arrangements. The next matter mentioned by Ms J is the question of the parents considering each other as equal partners in the raising of the child. The mother does not, on any level, consider that the father is an equal partner in the raising of X. After reading these Reasons for Judgment, reflecting and, hopefully, if necessary, obtaining counselling, the mother, I am sure has the capacity to come to see things differently. I am sure that she will do so for the benefit of X.
The child already has a “very cemented relationship” with the mother and the child’s relationship with the father is strengthening – although I do not think one could say that it is a "very cemented relationship". This is my impression from the evidence of the father – which I accept.
Ms J also stated that she would anticipate that a six to seven-year-old would have some difficulty maintaining a strong relationship with anybody that they are not seeing regularly. It would be a challenging enterprise for children and parents, said Ms J. Ms J was commenting on X’s ability to maintain a relationship with the father if X and the mother were living in Country B.[36]
[36] Note transcript page 143 from approximately line 35
Ms J clarified her evidence in relation to this issue, and I note the following at page 144 of the transcript from line 33:-
“HIS HONOUR: Thank you. Just before I call on you there, Mr Wilson, [Ms J], Ms Oakley asked you a couple of questions. I just wanted to clarify or at least – because I was trying to write down what you were saying. Ms Oakley asked you a question about the child’s age. As I noted it, you said you thought a six to seven year old would have some difficulty maintaining a strong relationship with someone who they are not seeing regularly. Is that what you said?
[MS J]: Yes. That would be my concern and assumption based on my understanding of child development.
HIS HONOUR: We don’t normally, in this jurisdiction, use the terminology a “strong” relationship?
[MS J]: Yes.
HIS HONOUR: But you were also asked questions about a meaningful relationship?
[MS J]: Yes.”
Ms J then explained her use of the terminology. She stated that her use of the words "a strong relationship" was comparable to her use of the words “a meaningful relationship”. That is the import of her evidence at page 144 of the transcript of 3 February 2023 from line 41.
I note that Ms J was referring in general to children aged six or seven because she had not seen X since 2022. Ms J’s evidence, nonetheless, is a factor for this Court to take into account.
In considering the mother’s application for relocation to Country B – I have, as noted previously in these reasons, taking into account the evidence and the submissions of the mother relating to her emotional health and wellbeing. The view that I have formed is that the mother’s emotional health and wellbeing are factors that, in the context of this case, must give way to the best interests of the child. I note there was not actually any independent expert evidence provided by the mother relating to her emotional well-being. That is to say, there was no affidavit provided by an expert relating to this issue and there was no opportunity for such an expert to be cross-examined. In the written submissions provided on behalf of the mother, reference was made to one part of the mother’s evidence where she said that she had felt completely trapped and that she realised that her “freedom of movement” had been taken away from her. This is precisely what can occur once a person becomes a parent. This fact was highlighted by the High Court in U v U (note paragraph 28 above in these Reasons for Judgment).
In weighing the proposal for equal time (the father’s proposal) with the mother’s application to relocate X's residence to Country B – I have concluded that it will be in X's best interests to remain living in City C in a week about shared care arrangement between his parents. One of the (many) reasons that tips the scales in favour of an equal time order (as opposed to the relocation proposal) relates to the findings made by the Court of the mother’s lack of support for the child’s relationship with the father. It has to be said that the mother has, in very many respects, done an excellent job parenting X. Often, it has not been easy for the mother. However, the mother’s reluctance to support X’s relationship with the father is an important respect in which the mother’s parenting has been found wanting. The fact that the mother was less than candid in the witness box has not assisted her case.
I would add that the actual process of the Court "weighing" the equal time proposal with the relocation proposal, to some extent, occurs on an ongoing basis throughout the Reasons for Judgment. That is inevitable – noting that matters relating to best interests must be considered as the Court advances through the legislative pathway and considers each proposal.
I note that, thankfully, the mother made it clear in her evidence that she would not move to live in Country B without X. The mother is to be commended for this.
CONCLUSION
The Full Court in Taylor v Barker endorsed the approach taken by the primary judge in that case. In general, I have followed that same approach. I do note that the legislation does not specify the manner in which a relocation case is to be decided. I have considered the question as to whether or not an order for equal time is in the best interests of X and reasonably practicable. I have concluded that it is both of those things. It is in X’s best interests, and it will be reasonably practicable provided the parents and the child remain living in City C. It will also be apparent that I have come to the view that it will become in X’s best interests to live in an equal time arrangement from the beginning of school Term Two in 2024. It will be apparent that I am also satisfied that between now and school Term Two 2024, it is in X’s best interests and reasonably practicable for him to live in a substantial and significant time arrangement with the parents – identical to the current arrangement of five nights per fortnight with the father.
I then weighed that proposal and balanced it against the mother’s application for international relocation to Country B. I noted that there would be some benefits to the child – and indeed to the mother – in the event that the mother were granted permission to relocate X’s residence overseas.
But in weighing all the various considerations in the balance, and in the exercise of my discretion – I have come to the conclusion (for the reasons stated) that X’s best interests are served if he remains living in City C and if he graduates from the substantial and significant time arrangement to an equal time arrangement between his parents. It is also in X’s best interests to be able to visit Country B twice per year with his mother – if that is what the mother wishes. This will enable X to continue to foster his relationships with the maternal family and his Country B heritage. In general, holidays each year should be split evenly between the parents – but those holidays will have to be structured to permit the travel to Country B to which I have referred.
As to the precise wording of any particular orders, I will give the parties some time to draft orders to reflect the Reasons for Judgment.

I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.
Associate:
Dated: 25 August 2023

File number(s):	BRC 17137 of 2021
Judgment of:	HOWARD J
Date of judgment:	25 August 2023
Catchwords:	FAMILY LAW – PARENTING – where the father seeks an order for equal time – where the mother seeks to relocate the residence of the child to Country B – where both parents currently live in City C, Queensland – where the six year old child lives five nights with the father and nine nights with the mother each fortnight – where the Court has made findings that the mother has not supported the child’s relationship with the father – where the best interests of the child will be served if the child remains living in City C and lives in a week about shared care arrangement with each parent.
Legislation:	Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited:	AMS v AIF (1999) 199 CLR 160 Baghti & Baghti & Ors [2015] FamCAFC 71 Beckham v Desprez (2015) 55 Fam LR 310 Cox v Pedrana (2013) 48 Fam LR 651 Cubbin & Cutler [2018] FamCAFC 84 Eagle & Scarlett (No 2) [2020] FamCAFC 291 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Johanson & Johanson [2022] FedCFamC1A 74 Masson v Parsons (2019) 266 CLR 554 MRR v GR (2010) 240 CLR 461 Taylor v Barker (2007) FLC 93-345 U v U (2002) 211 CLR 238 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	162
Date of hearing:	2 and 3 February 2023
Date of last submission:	16 June 2023
Place:	Brisbane
Counsel for the Applicant:	Dr Wilson
Solicitor for the Applicant:	Condon Charles Lawyers
Counsel for the Respondent:	Ms Oakley
Solicitor for the Respondent:	O’Neill Family Law

BRC 17137 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HARTLAND Applicant
AND:	MS MESNY Respondent

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	25 AUGUST 2023