Keane & Tanaka - [2022] FedCFamC1F 770

Federal Circuit and Family Court of Australia
(DIVISION 1)
Keane & Tanaka [2022] FedCFamC1F 770

File numbers: SYC 6861 of 2017

Judgment of: BRASCH J

Date of judgment: 13 October 2022

Catchwords:
FAMILY LAW – CHILDREN – Relocation – Where the mother proposed to relocate with the child to Japan – Where relocation opposed by the father - Where the mother and child are Japanese citizens and Australian permanent residents – Where the father is a dual Irish and UK citizen and an Australian permanent resident – Where the court found the child’s relationship with her father would be lost if relocation permitted – Relocation found to not to be in the best interests of the child.

FAMILY LAW – CHILDREN – With whom the child spends time – Best interests of the child – Where the child currently spending three nights a fortnight with the father – Expert evidence was for the child’s time with the father graduate to equal time – Orders made for time arrangements to graduate to equal time.

FAMILY LAW – CHILDREN – Parental responsibility – Where both parents sought sole parental responsibility – Where the parents had a previously sought equal shared parental responsibility – Where it was accepted by both parents that communication was previously poor but had considerably improved since 2020 – Orders made for equal shared parental responsibility.

Legislation:
Australian Passports Act2005 (Cth) s 7

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CG, 61DA, 65D(1), 65DAA, 65DAB

Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth) Sch 1

Family Law Regulations 1984 (Cth) Sch 1A

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
Adamson & Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232

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

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Cape & Cape (2013) FLC 93-549; [2013] FamCAFC 114

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Fitzroy & Fitzroy [2009] FamCA 954

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

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

M & S (2007) FLC 93-313; [2006] FamCA 1408

Mabry & Neilson [2013] FCCA 478

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

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

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

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

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47

Sare & Rainey [2020] FamCA 207

Sayer & Radcliffe (2012) 48 Fam LR; [2012] 298 FamCAFC 209

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

Sora & Milkan & Anor [2013] FamCA 138

Taine & Tucker [2014] FCCA 891

Taylor & Barker (2007) FLC 93-345; [2007] FamCA 1246

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

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

Whisprun Pty Ltd v Dixon [2003] 234 CLR 492; [2003] HCA 48

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 276

Date of last submissions: 29 August 2022

Date of hearing: 24-26 August, 29 August 2022

Place: Sydney

The Applicant: Litigant in person

The Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Alexander

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 6861 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KEANE

Applicant

AND:
MS TANAKA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

13 OCTOBER 2022

BY CONSENT THE COURT ORDERS THAT:
1.Each parent is restrained from questioning the child on what she might want by way of time with each or both parents, and each parent shall use their best endeavours to stop others from doing so.

THE COURT ORDERS THAT:
2.All previous parenting Orders be discharged.
3.The mother and father have equal shared parental responsibility for the long term care, welfare and development of the child X (born … 2015) being:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s heath;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

4.The child live with the mother, when not otherwise living with the father pursuant to these Orders.

The first six months
5.Commencing the Friday immediately after the making of these Orders and for a period of six (6) months thereafter (and including any school holidays that fall within this six (6) month period), the child spend time with the father at all times as agreed in writing, but failing agreement:
(a)in Week One: each alternate weekend from after school Friday (or 3.30 pm on a non-school day) until before school Monday (or 9.00 am on a non-school day); and
(b)in Week Two: from after school Monday (or 3.30 pm on a non-school day) to before school, Tuesday (or 9.00 am on a non-school day).

The second six months
6.For the next six (6) month period (and including any school holidays that fall within in this six (6) month period), the child spend time with the father at all times as agreed in writing, but failing agreement:
(a)in Week One: each alternate weekend from after school Friday (or 3.30 pm on a non-school day) until before school Tuesday (or 9.00 am on a non-school day); and
(b)in Week Two: from after school Monday (or 3.30 pm on a non-school day) to before school, Tuesday (or 9.00 am on a non-school day).

The third six months
7.For the next six (6) month period, the child spend time with the father at all times as agreed in writing, but failing agreement:
(a)
in Week One during the school term: each alternate weekend from after school Friday (or 3.30 pm on a non-school day) until before school Wednesday (or

9.00 am on a non-school day);
(b)in Week Two during the school term: from after school Monday (or 3.30 pm on a non-school day) to before school, Tuesday (or 9.00 am on a non-school day); and
(c)for the first half of any school holiday period that falls within this six (6) month period if an odd numbered year, and the second half of any school holiday period that falls within this six (6) month period if an even numbered year, with changeover to take place at 5.00 pm on the middle day.

Thereafter
8.The child spend time with the father at all times as agreed in writing, but failing agreement:
(a)during term time: from after school Friday (or 3.30 pm on a non-school day) until before school the following Friday (or 9.00 am on a non-school day) and each alternate Friday to Friday after that, starting from the first Friday following the commencement of each school term; and
(b)for the first half of any school holiday period in odd numbered years, and the second half in even number years, with changeover to take place at 5.00 pm on the middle day.

Calculating half holidays
9.
The mother and father will use the following process to calculate half holidays for

Orders 7(c) and 8(b):
(a)the school holiday period is deemed to commence from 5.00 pm on the last day that the child's attendance is required at school in the preceding school term and conclude at 9.00 am the day when the child's attendance is required at school in the following term; and
(b)the parents will determine the middle day of the school holiday period by dividing the number of nights during the school holiday period in two. Where there is an odd number of nights in the school holiday period, the child will spend the extra night with the father in even numbered years and the child will spend the extra night with the mother in odd numbered years.

Special Days
10.Notwithstanding any other order, the child’s time with the mother is suspended as follows, with the child spending these times with the father, or at other such times as the parents may agree in writing:
(a)from 9.00 am Father’s Day until before school Monday (or 9.00 am on a non-school day) on the day after Father’s Day;
(b)from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in odd numbered years;
(c)from 2.00 pm Christmas Day until 2.00 pm Boxing Day in even numbered years;
(d)on the child’s birthday as follows:
(i)on a school day from after school until 5.00 pm if the child is not otherwise with the father; and
(ii)on a non-school day from 10.00 am until 2.00 pm if the child is not otherwise with the father.

11.Notwithstanding any other order, the child’s time with the father is suspended as follows, with the child spending these times with the mother, or at other such times as the parents may agree in writing:
(a)from 9.00 am on Mother’s Day until before school Monday (or 9.00 am on a non-school day) on the day after Mother’s Day;
(b)from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years;
(c)from 2.00 pm Christmas Day until 2.00 pm Boxing Day in odd numbered years;
(d)on the child’s birthday as follows:
(i)on a school day from after school until 5.00 pm if the child is not otherwise with the mother; and
(ii)on a non-school day from 10.00 am until 2.00 pm if the child is not otherwise with the mother.

Changeovers
12.For the purposes of changeover where time with the child commences at the conclusion of a school day or concludes at the commencement of a school day, changeover is to occur at the child's school, and at all other times changeover is to occur at M Shopping Centre (E Street, Suburb D, NSW), unless otherwise agreed by the parents in writing.

Communication and information
13.Each parent shall be at liberty to have video/audio communication (such as FaceTime) with the child on a nominated phone number between 5.30 pm and 6.00 pm each Tuesday and Thursday, and that the other party shall facilitate such calls by ensuring the availability of the child and the availability of a mobile phone or device for such purpose.
14.For the purpose of facilitating these Orders and unless otherwise agreed in writing between the parents, the parents are to communicate with each other by email except in case of an emergency, in which case the parents are to communicate by SMS and/or telephone.
15.Each parent will keep each other informed of their current telephone/mobile contact numbers and email address and will notify the other parent of any change to those details within 48 hours of such change occurring.
16.Each parent will keep each other informed as soon as is reasonably practicable of:
(a)any significant medical problems, illness or injury suffered by the child while in their respective care;
(b)full particulars of any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by the child while in their respective care;
(c)any medication that has been prescribed for the child while in their respective care;
(d)any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist that the child is due to attend; and
(e)any occasion that the child is due to be hospitalised while in their respective care.

17.Each parent will inform the other immediately in the event of an emergency involving the child including, but not limited to, the child suffering a serious illness or injury or the hospitalisation of the child.

Specific issues
18.Each parent shall enrol in a Parenting after Separation Course and provide to the other parent a certificate of completion within 12 months of the date of these Orders.
19.Each parent is permitted to liaise directly with any doctor, hospital or other medical practitioners treating the child to obtain information about the physical and/or mental health of the child and the progress of any treatment the child may be receiving and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each of the parents.
20.Each parent is entitled to attend all events involving the child including but not limited to:
(a)sporting fixtures and events;
(b)extra-curricular activities that allow for parental attendance or participation; and
(c)school functions and events that allow for parental attendance or participation.

21.Each parent may liaise directly with the child's school principals or teachers to obtain any information about the child's progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to parents directly from the school, and these Orders will be sufficient authority to authorise the release of such information, to each of the parents.
22.Each parent be restrained from consuming any illegal substance or consuming alcohol to excess when the child is in their care or 12 hours prior to the child coming into their care.
23.Each parent be restrained from making any negative, critical, belittling, rebuking or derogatory comments about the other parent or members of the other parents' family or household in the presence or within the hearing range of the child, or via written correspondence or on social media which may be viewed or accessed by the child, and each parent will do all things reasonably necessary to ensure that no other person does so.
24.Each parent be restrained from making any negative, critical, belittling, rebuking or derogatory comments to the other parent.

Travel
25.Each parent, being Mr Keane born in 1983 and Ms Tanaka born in 1985, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the said child, X (born … 2015) from the Commonwealth of Australia up until and including 6 April 2023 ONLY and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period or until the court orders its removal.
26.From 7 April 2023 the child’s name be removed from the Family Law Watchlist.
27.From 7 April 2023 the parents shall be permitted to travel with the child outside of the Commonwealth of Australia where they comply with the following:
(a)provide the other parent with 10 weeks' notice of such intended travel;
(b)provide the other parent with a copy of the child's proposed itinerary full itinerary of the travel at least six (6) weeks before the intended travel, including contact details for the child at each location intending to be travelled to;
(c)provide the other parent with a copy of travel tickets (including return travel tickets) purchased for the child at least six (6) weeks before the child is due to travel;
(d)provide the other parent with a contact telephone number and contact details for Skype or any other similar application that the child can be reached on if applicable; and
(e)obtain the other parent’s written consent (by way of e-mail correspondence) if such proposed overseas travel is scheduled to occur on dates and times that the child is not already in their care and that the party proposing overseas travel shall facilitate make-up time between the child and the other party immediately before and/or after such travel, with such make-up time to equate to the time missed.

28.The child's Japanese passport is to be kept by the father for safe-keeping and any other passport held by the child (if any) to be retained by the mother for safe-keeping at all times, except:
(a)when a passport is required by the other parent for the purpose of travelling overseas with the child in accordance with these Orders;
(b)the non-travelling parent is to provide the passport to the travelling parent (if required) no less than 28 days prior to the intended departure date; and
(c)the travelling party, if relevant, will return the child's passport to the other parent no later than 14 days following the child's return to the Commonwealth of Australia.

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 Keane & Tanaka has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
Introduction

The child in this matter, X (“the child”) was born in 2015. She is a Japanese citizen and Australian permanent resident. Her father is a dual United Kingdom and Irish citizen and an Australian permanent resident. Her mother is a Japanese citizen and an Australian permanent resident. The father’s parents and siblings live in Ireland. Similarly, the mother’s parents and family live in Japan.
It is common ground that the child has the benefit of two rich and rewarding cultures through her parents. At time of trial, the child attended Year 2 at a school in the Suburb D area and took Japanese lessons outside of school hours. She was described by both parents to be a bright child and active in many extra-curricular activities.
The applicant father, Mr Keane, born in 1983, (“the father”), initiated the proceedings on 18 October 2017, by filing an Initiating Application for Final Orders in the Federal Circuit Court, as it then was. The father is an educator. The respondent mother, Ms Tanaka, born in 1985 (“the mother”), joined issue with the proceedings by filing a Response to an Initiating Application on 19 December 2017. The mother is currently studying for a Diploma.
The matter was transferred from the Federal Circuit Court to the Family Court of Australia, as they then were, on 14 December 2020.
By virtue of a consent order made on 15 December 2020, the child currently lives with the mother and spends three nights a fortnight with the father (every second weekend from Friday to Sunday night and overnight Tuesday in the other week), with orders for specific school holidays and special occasion time.

By way of final orders, both parties sought sole parental responsibility in their respective favours, although the mother seemed to resile from that in cross-examination. The Independent Children’s Lawyer (“ICL”) proposed equal shared parental responsibility.
The applicant father sought an equal time arrangement if the mother and the child were to remain in Australia, and orders that the child live with him if the mother chose to move to Japan without the child. The mother was clear in her evidence that she would not do so. Thus, I will not consider the father’s alternate any further. The father also sought orders to take the child to Ireland for a month in December 2022 to attend his brother’s wedding.
The respondent mother sought to relocate to Japan with the child, and that the child spend up to four non-consecutive blocks of five nights in a row with her father. Until the relocation, she proposed orders for the child to spend three nights a fortnight with the father, three nights during the short term school holidays, and two, five night blocks during the long term school holidays. Upon relocation the mother proposed the child spend four non-consecutive five night blocks in Japan each year, and in the event the mother and child visited Australia, the child spend a five night block with the father.
The primary position of the ICL was for the child to stay in Australia, live with her mother and spend four nights a fortnight during term time with the father, and for school holidays to graduate to half holidays. The ICL provided a second option for a delayed relocation, but that was provided to be helpful rather than representing the ICL’s position; those proposals became ICL Exhibit 3.
On the last day of trial both parents and the ICL consented to an order restraining the parents from questioning the child on what she might want by way of time with each or both parents, and that they will use their best endeavours to stop others from doing so. I consider such an order to be in the child’s best interests. As will become apparent in these reasons, the child is all too aware of the adult conflict.
BACKGROUND
The mother arrived in Australia in February 2013 on a working visa. The father arrived in Australia from Ireland in September 2012. In March or April 2014 the parents met in Australia. In 2015 the parents travelled to Japan shortly before the child was born in City N, Japan. Due to visa issues, the father returned to Australia from Japan four weeks after the child’s birth.
From the child’s birth in 2015 to the end of October 2016 the father travelled to Japan to visit the child on at least three occasions. In November 2015 the parents travelled to Ireland with the child to visit the paternal family. Following the trip, the father returned to Australia and the mother to Japan with the child.
After visa issues were sorted, the mother and the child travelled to Australia in October 2016 and cohabitation commenced. On 17 October 2017 the parents separated.
On 22 November 2017 interim consent orders were made, which provided for amongst other things, the father to spend time with the child two nights a fortnight and every Wednesday from 4.00 pm until 7.00 pm. The father was required to submit to urinalysis testing upon the request of the mother. This was as a result of the mother’s allegations about the father’s regular cannabis use. In cross-examination the father agreed that he was previously a user of cannabis.
On 20 December 2017 orders were made for the parties to attend mediation and for the mother to travel with the child on an overseas trip.
A Child Inclusive Conference (“CIC”) Memorandum was produced in March 2018.
When both parents attended changeovers, they were fraught for the child. It was common ground that the child would become upset when moving from the mother’s care to the father’s care, when that occurred outside a supermarket. Changeovers moved to the father then collecting the child from day care. The parents agreed that changeovers were largely much smoother for the child after that; as the mother said in cross-examination, “…so now she is totally fine to go his house”.
On 1 August 2018, the parents had an incident about changeover in front of the child. The father wanted make up time and chose to impose that on the mother by text (Father’s affidavit filed 13 March 2022, paragraph 119). In response, the mother turned up at his apartment and waited for the father and child to return after dinner. On both parents account there was pushing and shoving by each, the father trying to retain hold of the child and the mother trying to get her. Both parents called the police.
On 30 October 2018 interim consent orders were made which provided for the father to travel with the child to O Town and time over Christmas.
In 2019 the parties attended mediation. The parties agreed to increase the father’s holiday time with the child. The father deposed that the mother refused to facilitate this and instead planned her own holiday with the child in Japan, even though the father’s brother was coming out from Ireland (Father’s affidavit filed 13 March 2022, paragraph 197). The mother agreed she did this.
On 3 December 2019 a Family Report was released. It recommended the child’s time with her father be gradually increased to three nights a fortnight. It was recommended both parents seek support from a child and family professional. It was also recommended both parents seek support on how they communicate with each other.
On 4 December 2019 an interim Apprehended Violence Order (“AVO”) was made against the mother, naming the father as the protected person. Later that night, the police attended on the father’s residence after the mother made allegations that the father had hit the child (Father’s affidavit filed 13 March 2022, paragraph 205). Two weeks later, the police again attended on the father’s residence after the child apparently told the mother that the father said he would kill the mother when they returned from Japan (Father’s affidavit filed 13 March 2022, paragraph 780).
With respect to the allegation that the father hit the child, there is a record from the child’s psychologist that “…she lied as she thought that’s what mum wanted her to say” (ICL Exhibit 2, p.24, being an extract from clinical notes from F Psychology dated 22 August 2020). The mother accepted several times in cross-examination that the child had lied about her father hitting her.
On 15 December 2020 the parties entered into interim consent orders increasing the child’s time with the father from two nights a fortnight to three nights a fortnight.
On 29 March 2022 the updated Family Report was issued. It recommended that the child remain in Australia. It also recommended graduating the child’s time with her father to an equal time arrangement. Equal shared parental responsibility was also recommended, as was the ability for both parents to take the child overseas for holidays, such as to Ireland and Japan.
On 16 May 2022 the father filed an Amended Initiating Application and sought, as an interim order that he be permitted to travel with the child to Ireland between 30 November 2022 to 29 December 2022. The father pressed for this order during submissions in the final hearing.
EVIDENCE and witnesses
The applicant father represented himself. He relied upon the following documents:
·Amended Initiating Application filed 16 March 2022;
·Affidavit of Mr Keane filed 13 March 2022;
·Affidavit of Ms G filed 16 May 2022;
·Affidavit of Ms H filed 16 May 2022; and
·Father’s Exhibit 1-2.
The respondent mother represented herself and had an interpreter with her for the duration of the trial. She also had support people present. The mother relied upon the following documents:
·Amended Response to Initiating Application filed 16 August 2021;
·Affidavit of Ms Tanaka filed 17 August 2022;
·Affidavit of Ms J filed 17 August 2022;
·Affidavit of Ms K filed 17 August 2022;
·Affidavit of Ms B filed 17 August 2022;
·Affidavit of Mr C filed 17 August 2022; and
·Mother’s Exhibit 1.
The ICL relied upon the following documents:
·Child Inclusive Conference Memorandum dated 8 March 2018 (Court’s Exhibit 1);
·Family Report dated 3 December 2019 (Court’s Exhibit 2);
·Updated Family Report dated 29 March 2022 (Court’s Exhibit 3); and
·ICL Exhibits 1-3.
Both parents were cross-examined, with the father being cross-examined via Microsoft Teams due to a Covid diagnosis; he was able to attend court in person on the fourth and final day of trial. The father’s sister, Ms G, and the father’s friend, Ms H were also cross-examined via Microsoft Teams. The maternal grandparents, and the mother’s friend, Ms J, were cross-examined via Microsoft Teams. Ms K and the Report Writer, Ms L (“the Report Writer”) were cross-examined in person.
The ICL submitted I ought not give much weight to the affidavits of the mother's friends. I agree. Ms J had read the mother's and father's affidavits when preparing her own affidavit. She was prone to exaggeration where, for example, it turned out that her “grave fears” for the mother was the instability of the mother’s situation and a situation that was fraught and emotional.
Ms K said she had not read the father's affidavits but listed out, by specific paragraph numbers, more than 20 paragraphs from it in her own affidavit. She also denied having any involvement in the preparation of the mother's affidavit and denied that to be the case in any shape or form, including denying ‘checking the English’. The mother, however, was very clear that Ms K had done precisely that. I prefer the evidence of the mother. Her English was good, but she faltered with idiom in the trial, or anything with some “sophistication” to use the mother’s own description (Mother’s affidavit filed 17 August 2022, paragraph 281). She used the services of the translator when unsure. It stands to reason she would have someone ‘check the English’ in her affidavit.
Ms K, who lives in Sydney, speaks Japanese and was keen to impress that she was a considerable support to the mother. Ms K was prone to splitting hairs saying for example, she had not read the Family Reports, yet deposed: "Below are extracts of what the Family Consultant claimed [the father] said about how he conducts himself at handovers, and a voice record that contradicts it" (Affidavit of Ms K filed 17 August 2022, paragraph 31). She also referred to a number of other parts of the Family Reports and commented upon them. It may be that she was given extracts of it, but she nevertheless had read a sufficient amount to make detailed responses and commentary. Exaggeration was also a problem. For example in Ms K’s affidavit filed 17 August 2022, paragraph 15, she said the mother had no friendships or supports in Australia, but then agreed the mother had her support and that of others. In that same paragraph, she made comment that “In Australia, it’s [the mother], living alone as a single mum in a foreign country, that speaks a foreign language, trying to manage as best she can and give [the child] a happy life on minimum funds (government support)”, but accepted she was not aware the father paid child support to the mother. Ms K also seemed proud to confirm that her affidavit was very negative towards the father. When asked whether she had anything positive to say about the father, she gave the rather extraordinary answer, “I don't hate him”. She confirmed she had not had many conversations with him.
Nevertheless, what was clear about these two witnesses is that they will support the mother (but also reinforce negative views of the father) whatever the outcome of these proceedings.
It also became apparent I must use caution when taking words in the maternal grandmother’s affidavit at face value. For example, the maternal grandmother spoke in her trial affidavit filed 17 August 2022, paragraph 24 about "[the father] harming her [the mother]". It transpired that what she meant by this was he had not listened to how she was feeling (when together), would get angry and use angry words. The maternal grandmother added there was no physical harm but her daughter did not smile as much anymore.
The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon [2003] 234 CLR 492, Gleeson CJ, McHugh and Gummow JJ said this:
…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 [62].
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard…Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
ISSUES
Both the mother and father acted for themselves. Doing the best I can, and by reference to their competing orders, the following key issues required determination:
(1)Whether parental responsibility ought be allocated equally or solely between the parents, and how it ought be exercised;
(2)What live with, spend time with and communication arrangements will be in the child’s best interests, including, but not limited to whether the mother should be permitted to relocate to Japan with the child on a permanent basis;
(3)Who should keep the child’s passports and who may apply for renewals;
(4)Whether the father may apply for Australian citizenship for the child;
(5)Ought before and after school care fees be shared; and
(6)Whether the father may travel to Ireland with the child from 30 November to 29 December 2022.
Parenting proceedings – Legal principles.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children.
Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to the provisions under ss 61DA and 65 DAB.
Section 60B of the Act sets out the objects and principles of Pt VII as follows:
(1)The objects 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.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “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”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, if the presumption does apply, then it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are to be determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78], the Full Court made clear that while the court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties present their cases.
I turn then to the best interests of the child.
The primary considerations set out in s 60CC(2) of the Act are as follows:
(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.
In balancing these considerations, s 60CC(2A) of the Act requires the court to give greater weight to s 60CC(2)(b).
Section 60CC(2)(a) A meaningful relationship
In considering a meaningful relationship per s 60CC(2)(a), the Full Court in McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476 said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests. [122]
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
Similarly, the Full Court of the Family Court of Australia in Sigley & Evor(2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 and McCall (supra);
(b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]–[119]; and
(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M & S (2007) FLC 93-313; Godfrey v Sanders (2007) 208 FLR 287; Champness & Hanson (2009) FLC 93-407.

There was no dispute here that the child would prospectively benefit from a meaningful relationship with both parents. There was clear evidence that the child has enjoyed a positive and loving relationship with each parent.
The real debate was how a meaningful relationship with the father could be maintained and enhanced if the mother was permitted to relocate with the child to Japan. There was no dispute that if the parents remained in Australia with the child, her relationship with the father could be maintained and enhanced, and that the child should spend time with her father.
The Report Writer was clear in her evidence that if the mother relocated with the child to Japan, it was probable that the child’s relationship with her father would be compromised, if not lost.
The connection between the risk of impairment to maintenance of a meaningful relationship with a non-residential parent and a great distance between households is well recognised. For example, in Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court observed at [27] that:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children...

(Citations omitted)
I am satisfied that if permitted, relocation by the mother to Japan with the child is more probable than not to seriously diminish or even end the benefit of the child’s relationship with her father. I will return to the question of relocation later in these reasons.
Section 60CC(2)(b) Protection from harm
The second primary consideration in determining the child’s best interests, as set out in
s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Here, allegations are made by each party against the other. I consider these allegations as part of my consideration of parental responsibility. However, it is also to be observed that despite the allegations made by both, neither party nor the ICL proposed the child’s time with either parent be supervised, or there be no contact. Similarly, neither parent nor the ICL said a parent, posed an unacceptable risk to the child; s 60CG.
No one submitted there were any risk factors relevant to the parenting orders the court should make. Accordingly, I find that the child does not need to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Relocations
Whilst dealing with legal principles, it is useful to now outline that relocations are not a special category of cases, but are to be determined as any other parenting case: Fitzroy & Fitzroy [2009] FamCA 954 at [16]; Morgan & Miles (2007) FLC 93-343 at [72]–[80]; Sayer & Radcliffe [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [47]–[48]. That said, cases involving relocation are always difficult, particularly where the proposed relocation is to another country, as is the case here, where the mother would be plainly happier. However, my focus concerns more than that, culminating in what is in the child’s best interests. The mother confirmed she would not return to Japan without the child.
A parent is entitled to live where they choose, and need not demonstrate “compelling reasons” to live where they propose to live: AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238 (“U v U”); Adamson & Adamson (2014) 51 Fam LR 626 at [65]–[66]. However, since the best interests of the children are paramount, whatever weight should be accorded to a right of freedom of mobility of a parent must defer to the paramount consideration: U v U at [89].
Parental responsibilities can inherently restrict choices made by a parent. In Zahawi & Rayne [2016] FamCAFC 90, at [47] the Full Court noted:
All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U [(2002) 211 CLR 238; [2002] HCA 36 [92]]:
...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.
(footnote omitted)
I have already referred to Franklyn, at [27] above. The Court then added at [28]:
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
As was recognised by the Full Court in Goode & Goode (2006) FLC 93-286 (at [72]), there is now a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children.
Thus, the court must balance the advantages and disadvantages of the relocation proposal with the advantages and disadvantages of an “equal time” or a “substantial and significant time” arrangement (see Taylor & Barker (2007) FLC 93-345 at 81,915-81,917), and it is essential to assess the options of “equal time” and “substantial and significant time” by reference to both the best interests of the children and the reasonable practicability of those alternatives (see MRR v GR (2010) 240 CLR 461).
section 60CC(3) - ADDITIONAL CONSIDERATIONS
The court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child's best interests. These are as are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In Bondelmonte v Bondelmonte (2017) 259 CLR 662 (“Bondelmonte”), the High Court stated at [34]-[35]:
...In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
...whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed....
It is well known that children’s views are malleable and liable to be influenced by adults within their immediate orbit, even if only inadvertently (Bondelmonte at [36]–[41]; RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [52]).
The child had not long turned seven years at the time of trial. Whilst the mother maintained the child understood the difference between going to Japan for a holiday and permanently relocating, I do not accept that to be so. I prefer the evidence of the Report Writer who said the child, at her age and lack of maturity, would not understand the gravity of relocation. I also accept the father’s evidence that the child “reads the time but finds it difficult to grasp lengths of time” because it accords with the child’s developmental stage as reflected in the opinion of the Report Writer.
It was also the mother’s case that the child wanted to live in Japan; see for example in April 2019, the mother texted the father, “[The child] wants to go back to Japan. You should accept [the child’s] emotions. Ask [the child] where does she want to live? [The child] told me where and why clearly” (Annexure 4 to Father’s affidavit filed 13 March 2022, p.79). The child was only four years of age at this time, but this is in the wider content, where the Report Writer’s evidence was as follows: “Did you come to a positive view that she had been, if you like, consciously influenced?‑‑‑Yes, I did come to a positive view, especially because it had happened across two assessments” (Transcript 29 August 2022, p.6 lines 25-27). I discuss the influencing further below.
It is clear to me that the child does not have a definite view about living in Japan, as the mother would have me accept. For example, in the Family Report dated 29 March 2022, paragraph 64 the child said, “…She said that she wants to grow up there …”, yet at paragraph 69 of the same report she said this:
[The child] said, again, that she would really like to go to Japan and that she just wants a really long holiday, and then to come back. She speculated that she would like to go for three months or, at least, one month.
Unfortunately, the evidence clearly leads to the conclusion that not only has the mother exerted influence on the child’s views, but that the child has found herself in the positon of doing and saying what she knows will please or not displease the mother, and is not being free to express her true feelings to her mother. That was the Report Writer’s opinion in her Family Report dated 29 March 2022, paragraph 82:
[The child] is a loyal little girl who gave the impression of wanting to support her mother’s wishes. [The child’s] reticence about her feelings and time with her father was concerning in that it seemed incongruent with her observed behaviour with him, which was noticeably exuberant and enthusiastic. This incongruence was also observed in the previous (2019) Family Report assessment and suggests that [the child] is in a predicament whereby she believes she cannot display or acknowledge certain aspects of her feelings. If this is the case, this can have serious adverse consequences for a child’s security, sense of trust and personality development, because children in these circumstances feel they need to maintain a pretence, rather than behave naturally. It is also concerning that this behaviour is, apparently, so pervasive across a significant period of time.
It was the ICL’s submission that the mother had coached the child. I accept the Report Writer’s opinions about the mother consciously influencing the child and the ICL’s submissions as it accords with the evidence before me. For example:
(a)The mother said in submissions, “it’s more hard for me so it must be hard for [the child] too because if I’m upset of course [the child] is going to be upset”, indicating she does not shield the child from her emotions;
(b)As another example of the mother struggling to shield the child from her emotions she said, “even sometimes [the child] feels something wrong to me, sometimes [the child] asks me, ‘are you ok mummy’, I don’t want [the child] worried [about] me a lot and of course I want to show I’m good and its good relationship with Daddy but sometimes it’s so hard” (As per original);
(c)The mother also told the court that “even today she knows that I’m going to court …”. The child should not know this;
(d)The mother said in submissions:
[The child] always say two nights and the weekday that is more than enough. So she wants to stick to the weekend, coming back on the Sunday. I believe that in the best interest for [the child]…She already seven years old, maybe because the cultural difference so, but I respect [the child’s] opinion.
(As per original)
This places the burden of adult decision making upon the child’s shoulders. This was not the only time the mother told the court that she asked the child about time with her father. She also asked the child, in September 2018, if the child wanted the father to join them at a Rugby World Cup game. I cannot imagine a three and half year old would understand such concepts;
(e)The mother did not hide her upset from the child when the Report Writer said to her (in preparation for the final report) that she (the mother) had been coaching the child. She should have hidden her upset from the child;
(f)In the first Family Report dated 3 December 2019, paragraphs 65-66, the child was reported as saying this:
[The child] was asked if anyone had told her to say anything and she said that Mummy told her to say that she does not like [the father]. She said that “Mummy don’t like Daddy” and that her mother had told her to say that she does not want to go to Daddy’s house
…
… She said that her mother does not want her to see her father and, when asked why, said “because she loves me”. She said that [the mother] is upset when [the child] goes with [the father] and when asked how she knows this, said, “She tells me”.
The Report Writer was not challenged about these statements. I accept she faithfully reported what the child said. Telling the child what to say is a poor reflection on the mother;
(g)In the first Family Report, the child clearly had a warm, natural, fun and affectionate time with her father when observed with him, but then said she did not like her father on the way back to the mother: “[the child’s] manner while making these comments was calm and chirpy. She did not seem aware of any inconsistency between her comments about, and her behaviour with, her father” (Family Report dated 3 December 2019, paragraph 68). This feeds into the conclusion that the child has been influenced by the mother and does not wish to say something that displeases the mother;
(h)In the second Family Report dated 29 March 2022, paragraphs 62, 67, 68 this was said:
…During this conversation, [the child] said that she used to worry about getting her mother into trouble and felt that she had to protect her mother, but that she does not feel that way now. During subsequent conversations (below), [the child] sometimes seemed hesitant to expand on her comments and was happy to take opportunities to refrain from answering when the Court Child Expert reminded her of her choices in this respect
…
…When asked if she had enjoyed playing with her father during the observation, [the child] said that she “sort of” enjoyed playing with him, but that she is not really supposed to say.
The Court Child Expert asked [the child] if she loves her father as well as her mother, and she said, carefully, “I like him”. A little later, the Court Child Expert asked if she has told her mother that she loves her father, and she said, “I told Dad I love him, and I told Mum that I love Dad”. The Court Child Expert queried whether her parents get along with each other, and how her mother felt about being told this, and [the child] stared at the Court Child Expert then said, crisply, “You know how it is”.
Plainly, the child is too aware of the adult conflict;
(i)In the same report at paragraphs 49 and 64, both the mother and child were separately reported as saying they want to go to Japan because it is “safer”. I cannot accept an almost seven year old would work that out for herself. I find that the child took on this view because the mother told her;
(j)The ICL’s Exhibit 2 includes allegations on 19 December 2019 and 4 December 2019 that the child told the mother, that the father planned to kill her. The child was four at this point. In one of the two police interviews to which the mother exposed the child, the child stated to the police on 19 December 2019 that "Daddy said he was going to kill mummy". The police record goes on:
However when asked further questions about this the child was not able to clarify. Police asked the child if anyone especially her mum asked her to say this about dad, the child said "is that like coaching" The child did not respond further to police questions.
(As per original)
(ICL’s Exhibit 2, p.30)
I have no reason to question the police records. No one suggested I ought. That the child would raise coaching is something that can only be attributable to the mother’s actions and words. There were no suggestions that the father was coaching the child to say the mother was coaching her. Conversely, the child identified to the Report Writer that the mother told her to say certain things. The child’s coaching question is entirely consistent with the mother’s conduct;
(k)The child is permitted to refer to the father as Mr Keane or Daddy in the mother’s household, which sends the wrong kind of message to the child about the importance of her father being her father and daddy;
(l)It was the mother’s view that the child “feels free to express enjoyment of her time and relationship with her father”, and gave the example that the child was happy when the father returned from a trip to Ireland (Family Report dated 29 March 2022, paragraph 53). However the Report Writer in cross-examination said:
My impression when I saw [the child] individually for these assessments was that she does not always feel free to express her feelings.
(Transcript 29 August 2022, p.9 lines 42-44).
…
…The serious – the serious concerns that I was referring to probably link mainly to whether [the child] would feel free, as referred to earlier, to express her love for her father if she’s living mainly with her mother, and whether – and in that respect, whether her mother is able to even listen to that and – and just accept that that’s part of who [the child] is.
(Transcript 29 August 2022, p.12 lines 29-33)
(m)When the child said she did not want to go the father’s, the mother would tell her “…it’s better to spend time with Daddy because it’s only a fortnight”, which sends a message to the child that the time has to be tolerated and is not valued;
(n)The child knows “Mummy has to follow orders”, which hardly sends a message to the child that the time with her father is valued, valuable and to be enjoyed; and
(o)The mother could not remember the last time the child told her that she (the child) loves her father – this is relevant to the Report Writer’s opinion that the child does not feel free to express her feelings about her father, to her mother.
The Report Writer questioned whether the mother actually understood how damaging her words and actions were for the child (Transcript 29 August 2022, p.12 lines 29-37). Given the mother was upfront about her questions and conduct as described, I conclude she does not appreciate her conduct is damaging to the child. I do not suggest she did this on purpose because when this was being discussed in court, she asked words to the effect of, should she not do that. There is much in what the father said about the mother, that the child “needs a parent, not a best friend”.
Whilst the mother said she would undertake a post-separation parenting course as reported in the CIC Memorandum of 8 March 2018, (Court’s Exhibit 1), noted in the Order of 15 December 2020 and confirmed in cross-examination, she has not. I will order that she does. Equally, I will order the father undertake one too (if not already done), because as will become apparent, these two parents need to accept that parenting can be different, but reasonably so. Both parents, especially the mother, need to learn that parents should parent and allow the child to be a child, unburdened by adult decisions and issues.

Section 65LA of the Act provides:
65LA Court may order attendance at a post‑separation parenting program
(1) In proceedings for a parenting order, the court may make an order directing a party to the proceedings to attend a post‑separation parenting program.
Note:Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the party’s needs (see section 11E).
(2)In deciding whether to make a particular order under subsection (1), a court must regard the best interests of the child as the paramount consideration.
Note:Sections 60CB to 60CG deal with how a court determines a child’s best interests.
(3) In this section:
proceedings for a parenting order includes:
(a)proceedings for the enforcement of a parenting order; and
(b) any other proceedings in which a contravention of a parenting order is alleged.
(Emphasis added)
I do not need to seek the advice of a Family Consultant, because it was the Report Writer who recommended they do so in the first place.
In the circumstances discussed above – the child’s lack of maturity and the mother’s questioning and influencing of the child - the child’s views about living in Japan or what time she ought have with her parents are of very limited utility in determining what orders I should make.
I do accept that when the child said she loves her father, that is so because it accords with the observations by the Report Writer of the father-child relationship. It is also consistent with the observations of the father’s friend, Ms H in her affidavit filed 16 May 2022 (at paragraph 7 and in cross-examination). Plainly, the child loves her mother too.
Accordingly, I give little weight to the views of the child save that she clearly wishes to sustain a relationship with both her mother and father.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
The CIC Memorandum dated 8 March 2018 on page 3 records this: “[The child] (age nearly three years) presented as having a good relationship with both her mother and her father and to use each of them, at different times, as a secure base”.
During her first interview with the Report Writer, the child said:
…that she does not like “Daddy” because he is angry with her when she cries. She said that he is always angry when she is sad. The Family Consultant commented that she thought [the child] had seemed quite happy when playing a game with [the father], and [the child] said that she is “happy if I see him”.
[The child] was asked if anyone had told her to say anything and she said that Mummy told her to say that she does not like [the father]. She said that “Mummy don’t like Daddy” and that her mother had told her to say that she does not want to go to Daddy’s house. [The child] was asked if she really does want to go to Daddy’s house, and she said, no, she does not want to go. She was asked why, and she said that [the father] is angry with her when she does not want to go to bed and that, at these times, he smacks her on the hand.
(Family Report dated 3 December 2019, paragraphs 64-65)
The mother maintained a position that the child would not miss her father if living in Japan and he was in Australia. The mother based this on the child apparently not missing her father when he was in Ireland for three months in 2021-2022 “… she was totally fine, she was totally fine. She was happy and enjoying herself in Australia”, when he was away. Yet, the child ran to give him a big hug on his return. I have already found that the mother has placed the child in the invidious positon of wanting to please her mother, not displease her and not being free to express her feelings to the mother. It is thus not surprising that the mother perceived the child as being fine, but this is when the mother has not permitted the child to outwardly express her feelings for her father. She also said in cross-examination: “…I know that [the child] wanted to play Nintendo Switch, and once he bought for her, and he give us, she said she doesn’t need to go to Daddy’s house because I have a Nintendo Switch. Even if she wanted to go to Daddy’s house it’s to see friends, not him”.
I do not accept the mother’s evidence that the child did not miss the father when away and only went to his house because of a toy and a friend, because it was either naïve or self-serving. Either way, the mother failed to engage with the reality that the child clearly has a loving and meaningful relationship with her father, and that he has much to offer the child.
(b) the nature of the relationship of the child with:
(ii) other persons (including any grandparent or other relative of the child);
The child has no other relatives in Australia. It is not clear to me whether the child has any independent memory of living with the maternal family in Japan, prior to mother and child’s departure for Australia in October 2016. As for the paternal family, the child’s relationship with them is also limited. The father’s sister, Ms G, referred to “the contact that I have had with [the child] has been limited to very brief calls, and apart from that receiving videos and pictures from [the father] as well”, Ms G was then asked to clarify what she meant by “very brief calls”, her response was “you’re talking minutes, a couple of minutes at a time because her concentration can’t hold for long”. Further Ms G accepted that “any impression [she] has had of [the child] in the last few years is a superficial one”.
The tyranny of distance and the impact of COVID on international travel has limited international travel by the parents to extended family and vice versa. The maternal grandfather did however say that they would be able to travel to Australia to see their daughter and grandchild if relocation with the child was not allowed.
I accept the maternal grandparents speak with the mother and child on a regular basis, but there is little, if any, evidence to suggest that that relationship with the maternal family would justify an order for relocation away from the father, with whom the child does have a close meaningful relationship founded on regular physical time together.
Both parents refer to the child’s friend P when discussing basketball, and whether or not the child only played basketball because P did (Annexure 9 to Father’s affidavit filed 13 March 2022, p.151-152). The mother also deposed to the child preferring to be with her friends at school, rather than either parent when home schooling was required (Mother’s affidavit filed 17 August 2022, paragraph 179). The mother also texted the father that the child would spend time with her (the mother), the mother’s friends and “a lot of her [the child’s] friends” for the child’s birthday (Annexure 6 to Father’s affidavit filed 13 March 2022, p.80). In the first Family Report dated 3 December 2019, paragraph 58, the child’s child care director said, “that [the child] is popular and sociable and has lots of friends”.
I accept both parents’ evidence that the child has formed friendships, albeit in Year 2 at school.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
This is an area of discord for the parties, with the father alleging he was left out of decision making: “…I felt like a passenger sometimes when it comes to making decisions for [the child’s] long-term future”. Conversely, the mother said that communication with the father was hard. Her submission was: “I am always wondering when the next email or angry word, or put down at sport will come. It’s an awful way to live …our relationship is better but sometimes it still hurts to communicate with him…it’s hard to communicate with him”.
It is plain that the father wants to be involved in these decisions, so much so he proposed he have sole parental responsibility. I will come to that decision later.
That said, I accept the ICL’s submissions that ICL Exhibit 1 shows the parents have improved their communicating about decisions. That was also the impression of the Report Writer.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(ii) to spend time with the child; and
There is no doubt that each parent wants to spend as much time as possible with the child.
There is no dispute that the child continues to spend time with the father according to the various court orders, culminating in the current three nights a fortnight. He also sought and was granted orders to take the child to O Town for four days. His Application in a Proceeding filed 10 May 2021 sought to take the child to Ireland for three months, but that was dismissed.
The father has pressed for more time with the child at all possible opportunities.
Both parties have taken all opportunities presented to them to spend time with the child.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(iii) to communicate with the child;
It is obvious that the child communicates with her mother on an almost daily basis.
There was no evidence to suggest that the father has failed to take opportunities to communicate with the child.
Whether the mother, the live with parent, has facilitated the child’s communications with the father is a separate issue. I consider that later.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
At trial, there were no suggestions that either parent had failed to maintain the child. I find that both parents have fulfilled their obligations to maintain the children, consistently with their financial resources and the time each parent has spent with the child.
The mother’s (admitted) attempt to blackmail the father over child support is considered as a separate issue.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Report Writer was clear that a relocation to Japan would have a seriously detrimental effect upon the child’s relationship with the father. It would inevitably cause the child to be separated from her father for most of each year. I discuss this further when considering what parenting arrangements are in the child’s best interests.
The child is an only child. The grandparents and other relatives live overseas; s 60CC(3)(d)(ii) is not relevant.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
If both parents and the child lived in Australia, then neither parent (nor the ICL) pointed to any practical difficulties for the child in spending time with the father.
If however the mother was permitted to relocate with the child to Japan, there will be practical difficulties and expense in the child spending time with her father and in exercising “the child’s right to maintain personal relations and direct contact with both parents on a regular basis”.
Although not in any affidavit, the maternal grandfather answered a question from the ICL that it “was possible” that he provide a capital amount of $100,000 which the father could use for travel. As marvellous as that might sound, it is illusory. I have no power to make any order against the maternal grandfather to do so, as he is not a party to the proceedings. It was also not an order proposed by the mother.
The possibility of being able to provide $100,000 does however give me some confidence that the maternal grandparents will have funds to travel to Australia if relocation is not permitted.
It may also be the case, as the father said, that Japan’s borders are only open to its nationals. He is not a Japanese national. He said “Japan is closed off to travellers”. The father also said Japan was not a Hague Convention country (that is, the Hague Convention on the Civil Aspects of International Child Abduction).
The publically available Smartraveller website (Japan Travel Advice & Safety (Website) said, when the trial concluded:
Latest update: Japan's visa exemption scheme is still suspended. You must have a visa to enter Japan. Individual foreign tourists can apply for a Japanese tourist visa as part of a package tour booked through an authorised Japanese tour operator. Return flights, accommodation and a set travel itinerary, must all be handled by the authorised tour operator. The Japanese tour operator organising your travel will sponsor your visa application. If you have a valid vaccination certificate (3+ doses of an approved COVID-19 vaccine), you no longer need to do a pre-departure COVID-19 test for entry to Japan. Check your airline's testing requirements, as they may have different COVID-19 requirements than Japan.
I take from this that Japan is not closed as the father said, but nevertheless it may not be as simple to enter the country as when the visa exemption scheme existed.
As for the father’s claim about Japan not being a Hague Convention country, it is. The Convention is in force between Australia and Japan (Hague Convention on the Civil Aspects of International Child Abduction (Website) >
However, just because Japan is a Hague Convention country does not resolve the issue of relocation. One of the primary considerations is the child’s meaningful relationship with both parents.
The father said to the Report Writer that “…he does not want to move to Japan as his job, activities and networks are in Sydney” (Family Report dated 29 March 2022, paragraph 37). I accept that to be so as a matter of common sense. In cross-examination his evidence was that relocating “wouldn’t be part of [his] plan”, however that he would be willing to travel to Japan if the child relocated “if I could afford to of course, I would do my best to try and maintain as much of a relationship with my daughter as possible”. I accept that the father moving to Japan is not a realistic option.
At one point the mother said the father could come for “quick visits”, but that too is unrealistic. The father works full time, which has flow on benefits to the child though child support payments. Flights from Sydney to Japan are not quick and not cheap. It was also palpably clear that the maternal family have a very poor view of the father and the likelihood of them welcoming him into their environment with open arms is unrealistic.
I therefore conclude that regular physical time between the child and the father would not be possible if the child resided in Japan.
If the court permitted relocation of the child and mother to Japan, (and putting aside the quick visits idea above) the mother’s actual order was for the child to spend time with her father on four non-consecutive blocks of five nights in a row in Japan, with no fewer than five days lapsing between each five-night period. She also proposed time in Australia if she and the child visited.
Conversely, if relocation was allowed, the father said in cross-examination that the child should travel to Australia twice a year during school holidays for no less than two weeks, unimpeded communication and that the child learn English.
On either proposal, the child will not be able exercise her right to maintain personal relations and direct contact with both parents on a regular basis.
(f) the capacity of:
(i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
I have already referred to the mother’s inappropriate questioning of the child and failure to quarantine the child from her upset and adult issues. I have also referred to, and accept, the Report Writer’s opinion that this is damaging to the child. That is, the child’s emotional and intellectual needs have been compromised by the mother. When this was discussed in court, the mother (and father and ICL) agreed to an order that they both be restrained from questioning the child on what she might want for parenting orders. I refer below to the father inappropriately videoing the child and questioning her. He was also ill-advised to keep the child on a couple of occasions overnight contrary to court orders (see Family Report dated 3 December 2019, paragraph 37). That could not have assisted in trust issues between the parents, but those actions seem to now be historical.
Apart from these blemishes on both parents’ records, neither parent nor the ICL made explicit arguments in final submissions that either parent was unable to provide for the child’s emotional and intellectual needs.
Frankly, the essential problems here are two-fold. First, the questioning of the child and failure to shield her from adult decisions and emotions. I will make an order by consent that will cover the questioning. As to the failure to shield her, or putting the child in the position that she cannot be honest about her feelings, it can only be hoped that the evidence of the Report Writer about this being damaging to the child – which I accept – will give the parents, especially the mother, cause to reflect. The Parenting after Separation course may give the parents, especially the mother, some understanding of the obligations of parenting.
Second, is their inability to appreciate parents can parent differently but reasonably. The father is rather rigid; focused on routine, such as bed times; sets boundaries, such as the child sleeping in her own bed; and imposes discipline. The mother is, to use the Report Writer’s word, “more indulgent” (Transcript 29 August 2022, p.10 line 31) and has less by way of routine also at bed times, lets the child sleep with her, and is more permissive when it comes to discipline. I have formed these views after listening to the parents give evidence and by reference to their electronic exchanges which were exhibited in their respective cases. For example, the recording titled Tender Bundle 1-B, included in Mother’s Exhibit 1 demonstrated almost 22 minutes of two parents who had different views of giving in, or not, to a crying child. What I could hear was the father appropriately dealing with their crying child by soothing her, distracting her and diverting her attention. Then, I heard the two parents having a disagreement about whether the child would go for time with her father, or not – in front of the child. I did not hear much by way of firm direction from the mother to the child to the effect of, “you’re going”. This occurred in early May 2018.
This is another reason why I will order both parents attend a Post-Separation Parenting course.
Subsection (f)(ii) is not relevant; the child is not cared for by any other person in Australia. I do not include the child being minded by the mother’s friends in this category.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
I have already referred to the rich cultures and traditions which this child has the benefits of through her Japanese mother and Irish father.
If the mother was permitted to relocate with the child, I accept that the child’s exposure to her Irish heritage will be curtailed if not completely non-existent. I do not consider the mother asking Ms G (the father’s sister) for a Clatter Ring or the mother encouraging the child to study Catholicism in school or introducing her to Irish dancing or dressing the child in green on St Patricks Day or thinking about taking the child to the Rugby World Cup in Japan would fill the void which would be created by a lack of regular time with her closest link to her Irish heritage, namely her father. The father’s witness Ms H is also Irish but lives in Sydney. She sees the father and child once or twice a month creating another link to the father’s heritage.

I pause here to consider the ICL’s alternate proposal, which was for a delayed relocation. As said, this was provided to be helpful and did not represent the ICL’s position. Neither parent embraced this option, although I can safely infer that had this been explored with the mother she may well have embraced any road which ultimately saw her and the child in Japan. However, the Report Writer said a delayed relocation was likely to be more distressing for the child as her relationship with her father would be getting stronger in the interim. I accept that to be so. The Report Writer said it would be very hard for the child to lose her relationship with both parents. I accept that too.
If not permitted to relocate with the child:
(a)The mother proposed that the current orders remain; she said in submissions that the child always said that two nights was more than enough; and
(b)The father proposed orders for an equal time arrangement, wherein the child would spends three nights with the mother in Week 1, and four nights in Week 2.
The disadvantages of the relocation proposal are:
(a)The child would lose her relationship with her father. However, I accept the Report Writer’s evidence that the mother is in a better position as an adult to get over her disappointment, than the child dealing with the loss of a parent. I accept that because it is common sense. Fortunately, this is not a case where psychiatric or psychologist evidence was called in the mother’s case in support of a relocation;
(b)Insufficient physical, experiential, demonstrable time for the child to be able to maintain a close and ongoing bond with the father would largely be lost. In turn, it will not enable the child to have a meaningful relationship with both parents. Or put differently, equal time or significant and substantial time between the child and her father would be impracticable;
(c)I have already found that the mother does not, in fact, value the father’s role in the child’s life, or the child’s relationship with her father. A consequence of this then is that I am not satisfied that the mother would actively promote the child’s relationship with her father if living with the child outside on the Commonwealth of Australia. This is also in circumstances the mother’s friends and family have a very poor view of the father;
(d)In all practical realities, the child would lose her links to her Irish heritage;
(e)The maternal grandfather gave evidence that it would be up to the child to decide if she would see her father: “it’s not my position to force [the child] to see the father, but I will support her...if she wants to see the father”;
(f)Expense and distance loom large for the child to spend time with her father either by the child travelling to Australia, or the father to Japan;
(g)The recommendations of the Report Writer to graduate to an equal time arrangement could not occur;
(h)The submissions of the ICL for significant and substantial time between the child and her father could not occur;
(i)The father has limited capacity to visit Japan and no realistic prospects of living there;
(j)I have no evidence before me that if I made orders for the child to relocate with her mother to Japan, any parenting orders I made for child and father’s time would be recognised in Japan, or enforceable in any way. I also have no evidence that the father, an Irish and United Kingdom citizen and Australian permanent resident, would have any standing to bring any kind of proceedings in Japan. I am thus faced with the very real prospect that if the child left Australia, any meaningful relationship between the father and child would be at the good graces of the mother; that is, the relationship would be determined by what the mother might allow and what she might not. To that end, I have already made findings, inter alia, that the mother does not value the child’s relationship with her father. I have also found the mother has influenced the child’s views. Hence, I accept the ICL’s submissions that father-daughter time would be a product of hope over expectation. I do however accept that Japan is a Hague Country, but, as said, my considerations of the child’s best interests are broader than just that;
(k)It is clear that the father will not receive a warm reception from the maternal family should he travel to Japan to spend time with the child. I say that because Ms J, the mother's family friend who lives in Japan, had a very poor view of the father and shared that with the mother’s family. In turn, the maternal grandfather confirmed that Ms K was also very critical of the father when she spoke to him. The maternal grandfather’s view of the father was also skewed by his daughter who had told him the father had been physically violent to her (an incident requiring police involvement), whereas the mother’s statement to the police confirmed that he (the father) had not; and
(l)There is then a flow on to the child if surrounded by people with poor views of the father, without balancing that against regular, physical time between the child and her father.
I accept the Report Writer’s opinion that the mother, as an adult, is in a better position to deal with her disappointment, than a seven year old dealing with the loss of a parent. That is common sense.
I also accept the ICL’s submission that the mother’s happiness ought be considered against the mother’s actions such that if the mother and child went to Japan “it would simply be hope over expectation that the (father-child) relationship would be encouraged from a distance”. I agree; I have already made findings that the mother does not value the father and what he has to offer the child. Ultimately, it was submitted that because of the detriment to the child in losing her relationship with the father I ought refuse the mother’s application to relocate with the child.
There is much force in what was said by the maternal grandmother in her affidavit filed 17 August 2022 at paragraph 18, “…there is no substitute for the parents who know you so well and regard you as their first priority”. Whilst the maternal grandmother said that of herself and her husband in relation to their daughter (the mother herein), I conclude that that sentiment is just as relevant to this child and her parents in this matter. Similarly, there is much wisdom in the mother’s submissions that “[the child] needs her Daddy”. For the reasons given above, I am not satisfied it would be in the best interests of the child to permit the mother to relocate to Japan with the child. Such a move would disrupt her life significantly, and cause great damage to the child’s ongoing relationship with her father.
Parenting arrangements
As I will order equal shared parental responsibility, s 65DAA of the Act requires that I first consider equal time:
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.
…
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.
If I am not satisfied of the factors set out at subsections (1)(a) to (c) above, then I am required to look at significant and substantial time. That has similar considerations as set out above. If I am not satisfied about significant and substantial time, then my consideration is essentially at-large shaped by what is in the child’s best interests.
It was the Report Writer’s evidence that what was best for this child was a graduation to equal time. When asked about the period of time, the Report Writer said:
…I probably was thinking more like a year to maybe 15 months. Certainly by an 18-month period for that build-up to have occurred.
(Transcript 29 August 2022, p.16 lines 4-6)
…
I was envisaging that it would build up perhaps by increasing the weekend to a three-night weekend, perhaps increasing the time overnight during the week to possibly another night, and then further down the track, that becoming ‑ ‑ ‑ ...
(Transcript 29 August 2022, p.16 lines 9-12)
The ICL proposed a significant and substantial time parenting arrangement whereby the child would spend four nights a fortnight with her father. When asked why I would reject the Report Writer's opinion about equal time, it was submitted:
…Yes you would and in doing that you would consider whether shared time in this case is a practicable outcome, and the ICL’s position is that it is not. This is a matter where neither the mother nor the father have behaved with the insight or the clarity that in my submission might be hoped.
…
…In the ICL’s submissions, shared care would be, at least in the short term, distressing for the child. That’s indicated by a number of comments that the child makes, and the ICL accepts that some of those comments have been a product of some influence by the mother, but nevertheless even the father’s evidence acknowledges occasions on which the child has felt the need for a return to the mother at times when she has been in his care. It would also my submission be distressing for the mother, the court can except that the mother feels a degree of isolation in Australia, my submission is that Your Honour would accept in one sense for her role as the mother to be significantly reduced would further encourage that sense of isolation.
Thirdly, shared cared arrangement required a crystal ball that the ICL does not currently have. It is difficult to know the most appropriate is given that there is a need to protect [the child] from anything that would cause the relationship with either of her parents to be undermined, and that may happen as we have seen in this matter on both directions. But, on balance the ICL is of the opinion that this is a matter where substantial and significant time for the father is a more practicable outcome than is a shared care arrangement. It was also submitted that “shared care” would be distressing for the child because of the mother’s influencing of her, and distressing for the mother because it would increase her isolation if she had less time with the child.
I do not accept those submissions. These matters were not taken up with the Report Writer and her opinion with respect to equal time was not challenged in any significant way, if at all. Similarly, the idea that the child would be distressed is not one based on the evidence and was not explored with the Report Writer; conversely, I can infer that in recommending equal time, the Report Writer took the impact on the child squarely into account. I also reject the submissions because they seemed to be about giving the mother something akin to a consolation prize (that is, more time for mother and child). It was also unexplained why the ICL’s reservations about equal time were not just as applicable to significant and substantial time.
I have already referred to the parents’ different parenting styles. I will not repeat that here suffice to say I accept the evidence of the Report Writer that their differences would not contraindicate equal time (Transcript 29 August 2022, p.11 lines 28-34).
Rather, I accept the expert opinion of the Report Writer and will order a structure of graduated time progressing to equal time. The Report Writer spoke of graduating “…over a period of a year to 18 months, perhaps, maybe two years, just depending what other things [the child] was doing and what other factors might affect her” (Transcript 29 August 2022, p.15 lines 32-34). When questioned, what that meant, the Report Writer responded:
…I’m just conscious that [the child] might be changing schools…if the change in time occurs, whether she would need to – time to cope with some of those changes while also dealing with increased time with one parent. So that timeframe I just gave is more of a range. I mean, I think that [the child] is a very apt little girl and she has just turned seven, so children vary a lot at this age, and sometimes by eight they have reached more maturity. So it could be that it would take a year, but just being cautious, one could allow more time.
(Transcript 29 August 2022, p.15 lines 37-47)
The Report Writer also spoke of adding a night to each block of time until equal time is reached.
I turn to the considerations in s 65DAA(1). I find the child spending equal time with each of the parents is in her best interests. Given where the parents reside and how they have managed regular time between the child and father, I also consider the child spending equal time with each of the parents is reasonably practicable; s 65DAA(5). As I have found equal time to be both in the child’s best interests and reasonably practical, I will then make an order to provide for same.
I will adopt an 18 month time frame for the graduation to week about on the basis of the Report Writer’s opinion that it is within the range of what is developmentally appropriate for this child. I also do so as that neatly allows for a one night increase each six months (six months of four nights a fortnight starting now; six months of five nights a fortnight; six months of six nights a fortnight, then to equal time thereafter). I will immediately increase the child’s time with her father to four nights a week as proposed by the ICL, but then add an extra night each six months (with the six months to be counted inclusive of holidays for the first two lots of six months) until equal time is reached.
I am disinclined to the father’s proposal for equal time as it involves too many changeovers and the child would not get the benefit of having a whole weekend with each parent. I am also disinclined towards the mother’s proposal to keep the parenting arrangements as per the current order because that is not supported by the Report Writer.
As for holidays, the ICL proposed graduating the child’s school holiday time with the father to culminate in half holiday blocks in 12 months. The mother proposed a three day block for short New South Wales holidays and two non-consecutive five night blocks in the long, summer school holidays. The father proposed week-about time, with the mother in Week 1, and the father in Week 2.
The Report Writer expressed the view that the mother’s holiday proposal seemed limited and incompatible with the child’s relationship with the father (Family Report dated 29 March 2022, paragraph 85).
I will adopt that half holiday block proposal of the ICL and the 12 month time frame proposed, as it too broadly fits within the amount of time recommended by the Report Writer. However, rather than have one regime of graduated time for term time, and another for holidays, I will order that the first 12 months be the same regime for holidays and term time, then bring in half holidays at the 12 month mark.
By the time of trial, the father proposed a 12 month moratorium on travel for the mother and child (but also wanting a month in Ireland with the child in December of this year). He submitted there ought be an opportunity for the time arrangements to be put in place and expressed a concern that if the mother was unhappy with the outcome, she may not come back to Australia.
In the first Family Report dated 3 December 2019, paragraph 24, the father said this:
[The father] said that he was previously concerned about the prospect of [the mother] relocating to Japan, but seeing that she has returned after several trips, he is no longer concerned about this possibility.
However, in the recent Family Report dated 29 March 2022, the father renewed his concern that the mother would take the child to Japan, with or without court orders (Family Report dated 29 March 2022, paragraph 30).
It is correct that the mother has been to Japan and come back each time. I have already observed that the Hague Convention is in force between Australia and Japan. In that same Family Report, the mother expressed similar concerns about the father taking the child to Ireland and not returning. The Hague Convention is also in force between Australia and the Republic of Ireland (Hague Convention on the Civil Aspects of International Child Abduction (Website) <>
The idea of a moratorium on travel was supported by the ICL, but for a shorter period of four months from the date of submissions. The ICL submitted the parenting orders be “bedded down” before overseas travel occur.
I agree with ICL’s position because the child, and consequently the parents, will be adjusting to periods of time where the child’s time increases with the father. She will also be starting a new school next year. I will allow these changes to take effect, before the child can go overseas with either parent and is therefore not having physical time with the other parent. I am content that the period of time proposed by the ICL provides for this to occur. However, on a strict application of the ICL’s four months would mean overseas travel could occur in the child’s Term 1 schooling. I thus extend the four month moratorium on overseas travel proposed by the ICL to the end of Term 1 2023. I do so to allow the child to have a clean, uninterrupted run at school in Term 1. I also do not wish for the parents to champ at the bit and plan travel overseas as soon as possible, even if that means taking the child out of her new schooling.
Other issues
Civility: The ICL sought the following order:
That the parents agrees to treat each other with civility and respect at all times and throughout all forms of communication and during changeover.
As laudable as is that sentiment, I will not make the order because it is unenforceable.
Mirror orders: The ICL also sought the following order:
That the parents shall use their best endeavours and do all acts and things necessary to procure the making of orders by consent which mirror the Orders herein in a relevant Court in Japan such that the effect of the Orders herein are given effect within the Japanese family law system.

I will not make this order as I have no evidence before me that mirror orders would be able to be made in Japan. I will also not make it for fear of the parties then disputing what best endeavours involves. It is also unenforceable.
The child’s passports: The father sought an order that he retain the child’s passport/s, and be authorised to apply/renew passports and travel documents. The mother sought that she have sole authority to apply for and renew the child’s passports and travelling documents. The ICL proposed the mother retain the child’s Australian passport, but I do not know if the child even has an Australian one – no one in this matter is an Australian citizen; s 7 Australian Passports Act2005 (Cth).
There are no particular legal principles that assist me to resolve this. Doing the best I can, I will order that the father keep any Japanese passport for the child, and the mother keep any other passport held in the child’s name. I have reached this conclusion because it is a measure of security for the father who remained concerned that the mother may return to Japan with the child, and not come back. If the father unreasonably withholds the passport from the mother, then the mother has relief that can be sought in this court, on that very specific issue.
As for renewals, I will order the parents have equal shared parental responsibility, but again note I have no evidence that the child could have an Australian passport, let alone have one renewed.
Australian citizenship: the father sought an order that the child shall apply for Australian citizenship with the father. I understood this to mean that he be able to apply for Australian citizenship on behalf of the child and for himself. The mother did not seek any orders in relation to this. In the Mother’s affidavit filed 17 August 2022, paragraph 15, the mother deposed to Japan having a “strict ban on dual citizenship”, and “Japan’s Nationality Law 1950, which forbids multiple citizenship, and compels Japanese citizens to relinquish Japanese citizenship upon obtaining a foreign citizenship…” (Mother’s affidavit filed 17 August 2022, paragraph 16).
I have no evidence before me to assist in understanding whether either parent has standing to make an application for Australian citizenship for the child. I have no submissions to help me understand whether I would even have jurisdiction to do so. In those circumstances, I will not make the order proposed by the father. He is at liberty to make any application he wants for himself and does not need an order to do so.
School care fees: both parents sought orders about the payment of before and after school care fees. The court’s child support jurisdiction has not been enlivened. I cannot thus make such orders, even if I had satisfactory evidence before me.
Travel to Ireland with the child for a month: I will not make this order. I will not do so as a month with the father is not something within the child’s experience post-separation. It is also inconsistent with the orders I have made graduating the child’s time to week about.
Information: The father sought an order that he update the mother with information about the child and that he allow “the Child access to a charged wifi enabled device so she can share major developments also”. I understood this to be ancillary to his order for sole parental responsibility. I will make an order for equal shared parental responsibility for the reasons already given. I will also make orders for the child to communicate with each parent, meaning this proposed order is redundant.
Similarly, the mother sought an order that she update the father “as to the child's health, education and other major long-term issues by sending an e-mail no fewer than every six (6) months addressing the same”. Quite apart from the insufficiency of the proposed frequency, I understood this order to be ancillary to the mother’s proposed sole parental responsibility order. This is redundant given I will make an order for equal shared parental responsibility.
The ICL proposed orders for each parent to keep the other parent informed of the child’s medical issues and any medical emergencies that occur while in their respective care. The father and ICL also sought an order for the parents to keep the other informed of their current contact details, and to notify of any changes within 48 hours. The mother sought similar orders, except in relation to postal addresses. I will make the orders sought by the ICL for the sake of clarity.
Communications
: With respect to communications, the mother and father proposed that the child have communications with the other parent during term time as agreed, and between

9.00 am to 11.00 am on school holidays. The ICL proposed specific times. I prefer the ICL’s order with specific times for term time as well, as this then obviates the need for the parents to engage and agree (or disagree) about the time.
The mother and father also sought various ancillary communication orders such as giving the child privacy, and that she have a charged Wi-Fi or data enabled device. I will not make these orders because the communication orders I will make are sufficient. I will not manage how the parent choose to comply with this in their own homes.
The parents and ICL seem to agree that communication between the parents will occur by email; the mother said ‘in writing’, but I will take that to mean email (see her proposed

Order 13) as already occurs, as opposed to a postal letter. It was agreed that communication occur by SMS or telephone if an emergency. I will make that order.
Overseas travel arrangements: I will made the orders proposed by the ICL for overseas travel arrangements. They are clearer than those proposed by the parties.
Mother’s Day and Father’s Day: the father and mother both proposed time on these days occur from 9.00 am to 5.00 pm. I prefer the ICL’s order which is from 9.00 am on the Sunday to the return to school the next morning, as this is one less handover between the parents.
Christmas Changeovers: The father sought an order that “Christmas Eve will be spent with the Father from 12pm until 11am on Christmas Day and Christmas Day will be spent with the Mother from 11am until 12pm on 26^th December”. That would mean the child wakes up in the father’s household each year. The mother proposed an alternating of these days, as did the ICL, however they each had different time for the start and end of these periods. I have little if any evidence on the timing issue.
I prefer the ICL’s order which alternates Christmas Eve and where the child wakes up each year because this is sharing of these special days across both households. I also prefer the ICL’s proposed timing as it shares Christmas Day a little more than the mother’s proposal.
Changeovers: the father sought an order that when changeovers did not occur at school, it occur at an agreed location. The mother proposed that changeovers occur at school but if not a school day then at her residence. I prefer the ICL’s order that specifies a neutral location if agreement cannot be reached. That reduces the prospect of conflict where agreement is not reached. Given the bad behaviour I have identified by each, I do not consider it wise to use the mother’s residence as the default changeover location.
Interim orders: the mother and father sought various interim orders, including (for the father) the travel to Ireland at the end of 2022. I am making final orders, and have considered the substance of their interim orders in these reasons in any event.
Extra-curricular activities: the mother and ICL sought orders about attending extra-curricular activities. The father was silent on this. I will make an order as proposed by the ICL because the parents should be able to enjoy these activities undertaken by the child.
School and health liaison: the ICL proposed orders about each party being able to liaise with the child’s school and health providers. I will make those orders for the sake of clarity.
CONCLUSION – PARENTING
I am not satisfied that it is in the child’s best interests to lose her relationship with her father as would happen in all practical senses if the mother’s relocation with the child were permitted. I am not satisfied that the time proposed by the mother, be it in Australia or Japan, would foster a continuing meaningful relationship between the child and her father. I am also not satisfied that the mother would actively assist in promoting the father-child relationship. Having ordered equal shared parental responsibility, I am satisfied that equal time would be in the child’s best interests and reasonably practical. I will make an order for equal time, which means the mother’s application to relocate must fail.

I certify that the preceding two hundred and seventy-six (276) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 13 October 2022

File numbers:	SYC 6861 of 2017
Judgment of:	BRASCH J
Date of judgment:	13 October 2022
Catchwords:	FAMILY LAW – CHILDREN – Relocation – Where the mother proposed to relocate with the child to Japan – Where relocation opposed by the father - Where the mother and child are Japanese citizens and Australian permanent residents – Where the father is a dual Irish and UK citizen and an Australian permanent resident – Where the court found the child’s relationship with her father would be lost if relocation permitted – Relocation found to not to be in the best interests of the child. FAMILY LAW – CHILDREN – With whom the child spends time – Best interests of the child – Where the child currently spending three nights a fortnight with the father – Expert evidence was for the child’s time with the father graduate to equal time – Orders made for time arrangements to graduate to equal time. FAMILY LAW – CHILDREN – Parental responsibility – Where both parents sought sole parental responsibility – Where the parents had a previously sought equal shared parental responsibility – Where it was accepted by both parents that communication was previously poor but had considerably improved since 2020 – Orders made for equal shared parental responsibility.
Legislation:	Australian Passports Act2005 (Cth) s 7 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CG, 61DA, 65D(1), 65DAA, 65DAB Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth) Sch 1 Family Law Regulations 1984 (Cth) Sch 1A Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:	Adamson & Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Cape & Cape (2013) FLC 93-549; [2013] FamCAFC 114 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Fitzroy & Fitzroy [2009] FamCA 954 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 M & S (2007) FLC 93-313; [2006] FamCA 1408 Mabry & Neilson [2013] FCCA 478 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 Sare & Rainey [2020] FamCA 207 Sayer & Radcliffe (2012) 48 Fam LR; [2012] 298 FamCAFC 209 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Sora & Milkan & Anor [2013] FamCA 138 Taine & Tucker [2014] FCCA 891 Taylor & Barker (2007) FLC 93-345; [2007] FamCA 1246 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 U v U (2002) 211 CLR 238; [2002] HCA 36 Whisprun Pty Ltd v Dixon [2003] 234 CLR 492; [2003] HCA 48 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	276
Date of last submissions:	29 August 2022
Date of hearing:	24-26 August, 29 August 2022
Place:	Sydney
The Applicant:	Litigant in person
The Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Alexander
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 6861 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KEANE Applicant
AND:	MS TANAKA Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BRASCH J
DATE OF ORDER:	13 OCTOBER 2022