Mulrooney & Cooper - [2023] FedCFamC1F 273

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mulrooney & Cooper [2023] FedCFamC1F 273

File number: MLC 5907 of 2021

Judgment of: CARTER J

Date of judgment: 17 April 2023

Catchwords: FAMILY LAW – RELOCATION – where the mother seeks to relocate to the United States of America with the child – allegations of family violence perpetrated by the father – consideration of meaningful relationship – child’s best interests – relocation permitted

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA

Family Law Regulations 1984 (Cth) reg 24

Cases cited:
A & A: Relocation Approach (2000) FLC 93-035

Adamson & Adamson (2014) 51 Fam LR 626

AMS v AIF (1999) 199 CLR 160

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Godfrey v Sanders (2007) 208 FLR 287

Heath v Hemming (No 2) [2011] FamCA 749

KB & TC (2005) FLC 93-224

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) FLC 93-405

Morgan & Miles (2007) 312 FLR 114

Taylor v Barker (2007) 214 FLR 433

U v U (2002) 211 CLR 238

Division: Division 1 First Instance

Number of paragraphs: 341

Date of last submissions: 16 February 2023

Date of hearing: 29 August – 1, 30 September, 26 October 2022
19 January, 16 February 2023

Place: Melbourne

Counsel for the Applicant: Sarah Mansfield

Solicitor for the Applicant: Trapski Family Law

Counsel for the Respondent: John Williams

Solicitor for the Respondent: Mazzeo Lawyers
ORDERS

MLC 5907 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MULROONEY

Applicant

AND:
MR COOPER

Respondent

order made by:

CARTER J

DATE OF ORDER:

17 April 2023

THE COURT ORDERS THAT:
Sole parental responsibility
1.The mother have sole parental responsibility for X born 2018.
2.Prior to making any decision in the exercise of parental responsibility:
(a)the mother shall advise the father via the AppClose parenting application of her proposal;
(b)the father shall have seven days to provide a response to the mother via the AppClose parenting application; and
(c)the mother shall then inform the father as to the decision she has made.

3.X live with mother.

Relocation
4.The mother be permitted to relocate with X to the United States of America not before 1 August 2023.
5.Pending relocation X spend time and communicate with the father as follows:
(a)commencing Saturday 21 April 2023, from 10:00 am to 6:00 pm each alternate Saturday and Sunday; and
(b)by video call each Tuesday and Thursday between 7.00 pm to 7.30 pm with the father to initiate the calls via the AppClose parenting application.

6.Upon the mother relocating to the United States of America with X:
(a)X shall communicate with her father by video call each Wednesday and Sunday at a time nominated by the mother that is convenient to the father, with the father to initiate the calls via the AppClose parenting application;
(b)the mother shall bring X to Australia to spend time with the father for not less than 14 days on one occasion each year to coincide with X’s summer holidays (late-June to late August) unless otherwise agreed; and
(c)the father is at liberty to travel to the United States of America for up to two weeks each year on three occasions to spend time with X.

Visits to Australia
7.For the purpose of the annual visits in Australia pursuant to Order 6(b):
(a)the mother shall provide the father with not less than 60 days’ notice of such travel,
(b)the mother shall meet the costs of her own airfares and accommodation;
(c)the parties will share the costs of X’s return flights; and
(d)time shall occur at times agreed and failing agreement:
(i)in 2024;
A.from 10:00 am to 6:00 pm on days one, two, three and four;
B.from 10:00 am on day five to 6:00 pm on day six;
C.from 10:00 am on day seven to 6:00 pm on day nine; and
D.from 10:00 am on day 10 to 6:00 pm on day 14;

(ii)in 2025;
A.from 10:00 am on day one to 6:00 pm on day six; and
B.from 10:00 am on day seven to 6:00 pm on day 14.

(iii)in 2026 and thereafter from 10:00 am on day one to 6:00 pm on day 14.

Visits to the United States of America
8.For the purpose of any visits in the United States pursuant to Order 6(c):
(a)the father shall provide the mother with not less than 60 days’ notice of such travel;
(b)the father shall meet the costs of his own airfares and accommodation; and
(c)time shall occur at times agreed and failing agreement in accordance with the arrangements in Order 7 herein for the relevant year (with the arrangements for time in 2023 to be the same as in 2024).

9.The father shall as soon as practicable provide the mother with the address of any place at which X is to stay overnight whilst in his care.

Changeovers in Australia
10.For the purposes of changeovers in Australia:
(a)before relocation:
(i)changeover be facilitated by B Family Services until such time as C Contact Service accept the family;
(ii)within seven days both parties submit an application to C Contact Service and do all such acts and things as required to facilitate supervised changeover at C Contact Service and follow all reasonable recommendations as made by C Contact Service with respect to the changeover times if not already attended to;
(iii)the father shall be responsible for the cost of the facilitated changeover at both B Family Services and C Contact Service;
(iv)in the event that changeovers are unable to occur at B Family Services or C Contact Service, they shall occur inside the foyer of Suburb D Police Station;
(v)the parties be at liberty to provide a copy of these orders to B Family Services and C Contact Service; and

(b)following the relocation to the United States of America, at a venue agreed between the parties, and failing agreement at the Suburb D Police Station.

Changeovers in the United States of America
11.For the purposes of changeovers in the United States, the venue shall be nominated by the mother forthwith upon the father providing notice of his intention to travel.

Information sharing between parents
12.The parents keep each other informed of the following:
(a)their contact telephone number, physical address and email address and notify the other of any change to same within 24 hours;
(b)any serious or significant injury or illness suffered by X whilst in his or her care, together with details of any medical or allied health professional involved in X’s health care and each parent shall be at liberty to liaise with such professionals;
(c)the names and contact details of X’s current treating medical and other allied health professionals and the names and contact details for all new treating medical and other allied health professionals; and
(d)details of all medication prescribed to and administered to X 24 hours prior to all changeovers and in the event such medication is required to be administered to X during the other parent’s time with her, the medication be exchanged at changeover together with instructions as to timing and dosage.

13.Each parents do all such acts and sign all such documents as may be required to authorise X’s medical practitioners and health professionals to communicate directly with the other parent about the child.
14.Each parent be at liberty to obtain from X’s day care/kindergarten/school any information usually disseminated to parents such as school reports, newsletters, photographic order forms and the like, at his/her own expense.
15.Each parent be at liberty to provide a copy of these orders to any day care/ kindergarten/school attended by X.

Restraint of excessive alcohol consumption
16.The father be restrained from consuming alcohol to excess for 24 hours prior to X coming into his care, and at any time she is in his care.

Communication via AppClose
17.Each parent shall facilitate X communicating with the other parent via a video call using the AppClose parenting application at all reasonable times in accordance with X’s wishes.

Request to register orders in the United States of America
18.Within seven days of these orders, the mother make a request pursuant to regulation 24 of the Family Law Regulations 1984 (Cth) for the registration of these orders in E State, United States of America and provide evidence of her having done so to the father’s solicitors and the Independent Children’s Lawyer.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Mulrooney & Cooper has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION

The parties in this case are the parents of four year old X, born 2018. She lives with her mother, and currently enjoys day time visits with her father. It is not in dispute that the mother will remain X’s primary carer. However, the mother was born in City F, E State and wishes to return to the United States of America (“the United States”), and to the support of her family there. X’s time with the father will necessarily be limited if the relocation is permitted, and any relocation is opposed by him. He says if X does move to the United States that would deprive her of the benefit of having a meaningful relationship with him.
Relocation cases are amongst the most difficult of the cases this Court must determine. The difficulty in this matter is increased by the relocation being international, which amplifies the practical difficulties and expenses in maintaining a parent/child relationship. The matter is further complicated by X’s tender age, and by the under developed nature of X’s relationship with her father. Added to that are allegations made by the mother of coercive control, all denied by the father, and the possible implications on the father’s ability to travel to the United States as a result of having been convicted of drug related offences.
For the reasons that follow, I am satisfied that X’s best interests are met by relocating to the United States with the mother prior to her commencing primary school in 2023. The purpose for this slightly delayed departure is to ensure that X’s relationship with the father can become more solid and secure. It is only since September 2022 that X commenced spending regular time with the father, and that time very recently progressed to unsupervised visits. Additionally, a delay of a further few months will enable X to mature a little more, so that she can cognitively better manage the inevitably lengthy gaps between face to face visits with her father.
BACKGROUND AND PROCEDURAL HISTORY
The father is 40 years old. He lives in G Town with his brother Mr H. He works full time as a tradesman. His work hours include week days and weekends. The father was previously in the defence force. When the matter resumed in February 2023 the father advised he was in a relationship with a woman, but declined to provide her name. He said he and his partner were not living together, and he did not know whether they would in the future.
The mother is 34 years old. She lives in Suburb J, Victoria. She is currently engaged in full time home duties, and is on leave from her part time position with the Z Company.
X is four years old. She currently attends Kindergarten for three mornings each week, and may stay for longer at the day care centre if the mother has appointments or commitments. She is otherwise in the mother’s care. If she lived in City F, X would be expected to commence primary school in September this year.
The parties met online in 2005. At that time the father was 22 and the mother 15 years old. They first spent time together in 2008 when the father travelled to City F. At that time, the father was 26 and the mother was 19. The parties continued to spend time together in Australia and the United States, travelling regularly to see each other.
The parties married in 2010. The mother was 21 years old, and the father was 28 years old.
The mother said the father drank heavily at times during the parties’ relationship causing him to become verbally and physically aggressive and violent. She also said he subjected her to family violence including sexual assaults and coercive control throughout the relationship. I note that the father denies all the mother’s allegations, save to admit in 2009 there was some “pushing and shoving” in the hallway.
The parties had some time apart in 2011. At that time, the mother returned to the United States. She said the father had been drinking heavily, and had continued to be aggressive, controlling and abusive towards her. The father attended in the United States, unannounced, and arrived at the mother’s residence uninvited. He sought to persuade the mother to resume her relationship with him.
The father then returned to Australia, and the parties communicated on and off for a while. Towards the end of 2012, the parties agreed to reconcile. In 2013, the mother returned to Australia.
The mother said initially the parties’ relationship was alright, but that the father resumed drinking heavily again. The mother said that for the balance of their relationship, there were periods the father remained sober – and at one point for about 12 months – but she said he resumed drinking again. She said the father continued to be controlling, possessive, intimidating and aggressive.
X was born in 2018. The mother suffered postpartum depression. It is plain at that time the mother was struggling physically and emotionally. She was unable to maintain the house to the father’s satisfaction. She said the father would express his dissatisfaction about the state of the house, and was abusive and very unsupportive of her at this time. As set out later in these reasons, the maternal grandmother was present in the home for three months in 2018 and corroborated the mother’s evidence.
The mother travelled with X to the United States in 2018. They remained there for three months. The mother said the father continued to be aggressive and volatile upon her return, including being angry and verbally abusive when he collected them from the airport.
The parties separated on 2 March 2019. The mother said on that day the father threatened to remove all the funds from the bank account, chased her around the house, and grabbed X from the mother to stop her from leaving. The father acknowledged he did say he was going to take X at that time. The father acknowledged the parties had “many heated exchanges” that night.
The mother was able to get X and then left the house. The mother stayed for a time in various types of accommodation. She then moved into the home the parties had built in the City K area.
Shortly after separating, the mother sought and obtained an Intervention Order against the father. The mother and X were both listed as protected persons.
Between March and November 2019, the mother facilitated time between the father and X. However, she said that was marred by the father’s ongoing volatile and abusive behaviour towards her. She also said in that period the father contacted her mother threatening “dire consequences” if the mother did not facilitate time between himself and X. He also denigrated the mother, sending the maternal grandmother a text message describing the mother as “flat out fucking evil and vindictive”.
The mother commenced attending on Ms L, clinical psychologist in early 2019.
In mid-2019, the mother was admitted into hospital for an operation. In breach of the Intervention Order, the father attended at the hospital, and personally delivered orchids to the mother’s room when she was recovering from the anaesthesia. Remarkably, the father deposed that he took the flowers “to show my love for her”, and that “[my] focus was to support [the mother]”. He did not appear to regard his behaviour as inappropriate notwithstanding the clear breach of the Intervention Order.
In mid-2019 the father lost his driving licence as a result of an accumulation of offences. In late 2019 he was caught driving whilst unlicensed, speeding and with an illicit substance detected in his saliva. The father did not depose to this in his affidavit material.
Towards the end of 2019, the mother felt unable to continue to facilitate time between X and the father as the father would not refrain from approaching her and communicating with her in an unpleasant manner. In late 2019 the mother approached C Contact Service, to seek their assistance in providing supervision for time between X and the father.
In late 2019 the father arranged for flowers to be delivered to the mother. This was again in breach of the Intervention Order. The father told the police he was “allowed to send [her] things by mail”, and that he sent the flowers “to know that I am still her husband. She’s my wife. She’s the love of my life. The mother of my child”. He also referred to the mother having “mental health issues”. Again, he did not appear to regard his behaviour as inappropriate notwithstanding that it breached the Intervention Order. In his oral evidence he said that “it was kind of a grey area in my mind” whether sending unsure if that could result in a criminal charge.
In December 2019, the parties arranged for the father to see X together with the father’s brother, Mr M, on a couple of occasions. The mother said the father was unpleasant to her on the first visit. On the second occasion the mother said she arrived at the agreed location to discover the father’s brother was not there. The father then got into her car, and berated her while she drove to another restaurant. He continued to berate her after she had parked the car, and once they were inside the restaurant. The father denied forcefully entering the mother’s car. He acknowledged he did tell her he hated her for taking X from him. He otherwise denied making a commotion at the restaurant. He did not call Mr M to give evidence.
The mother also facilitated a third visit for X with the father on about 19 December 2019 with Ms N, the marriage counsellor, present. The mother remained in her vehicle and Ms N collected X. At one point, the father approached the mother’s car, opened the passenger’s side door and put presents on the seat. He approached the mother a second time at the end of the visit and swore. The father acknowledged that upon being told he would not see X on Christmas day, he said “thanks a fucking lot”.

Over Christmas 2019 and into early 2020, the father contacted the mother’s family on a number of occasions, threatening self-harm and complaining about the mother. The texts to the maternal grandmother included “death is but the next great adventure”; and “[s]he’s ruined my life…I get nothing but pain and hurt!” The father also contacted the mother by text on a number of occasions about his car, the parties’ relationship and other matters not connected to X. The father was charged with breaching the Intervention Order as a result of these communications.
At the mother’s instigation, C Contact Service began providing supervised time in late 2019. There were approximately 23 sessions of supervised time, concluding in October 2020. That included a few sessions of supervised time arranged outside C Contact Service, when the centre was closed as a result of COVID-19 measures. According to the report from C Contact Service, the mother sought their services as she wanted X to have a safe and meaningful relationship with the father. She was reported to have been encouraging of X to have a relationship with the father, having her ready and happy to spend time with him. The father was reported to have engaged well with X, who appeared to delight in his company.
In January 2020 the mother said the father deliberately drove up to and then alongside her car on the way to a supervised visit.
On both 17 and 19 February 2020, the mother saw the father’s car in the street of X’s day care centre. The mother reported the father’s presence as a breach of the Intervention Orders. She said seeing his car near X’s day care centre frightened her. The father said both of those charges were dropped as his brother was using his vehicle, and he was elsewhere.
The mother became an Australia citizen in 2020.
In late 2020, the father was found guilty of persistently contravening a Family Violence Intervention Order and using a telecommunication service to harass. He was sentenced to a community corrections order, unpaid community work and a good behaviour bond. He was also required to attend an offender behaviour management program.
C Contact Service ceased their involvement with the family in around October 2020. The father wanted his time with X to progress to unsupervised visits. The mother did not agree. She remained concerned about X’s safety in light of the father’s behaviour, including breaches of the Intervention Order, and her concerns regarding his alcohol consumption. The parties could not reach an agreement as to how to progress X’s relationship with the father, and her time with the father ceased. The father took no further action, and did not institute proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”).
In November 2020 the mother sought and obtained an extension of the Intervention Order.
In 2021, the mother’s father passed away unexpectedly in the United States. Due to travel restrictions as a result of the COVID-19 pandemic, the mother was not able to return to the United States to attend the funeral or be with her family at that time. In those circumstances, the mother contacted the father, and sought his support. It is common ground that on several occasions over the next month, the father attended at the mother’s home, with her consent. The extent of the father’s attendance at the home is not agreed. The father said he attended on multiple occasions at the mother’s home, assisting her with shopping, cooking, cleaning and caring for X. According to the father’s Uber receipts, the father appeared to have attended the home on eight occasions in 2021.
The mother conceded that the father was helpful and supportive for a time. She said he only attended three times – twice at her invitation and once uninvited. She said he stayed overnight on one occasion, in a separate bed. She said he made sexual advances towards her the following morning and she did not allow him to stay over again.
In early 2021, it is common ground the parties had a disagreement regarding X’s eating habits. Their rapprochement ended at that time, with the mother requiring the father to leave her home. The father then did not have any face to face time with X until after the commencement of the hearing before me, some 18 months later.
In early 2021 the mother attended at the police and made a statement about the father’s attendance at her home six days earlier. She said he had attended that day uninvited. She said he appeared to be intoxicated, and this made her feel unsafe and unsure. She said she was feeding X, and then started getting her ready for bed, whilst the father was at the home. He watched X in the bath. Whilst he was present at the home, the mother said the father made some aggressive comments, complained about X’s eating and swore at her, and that he slammed the door when he left. She said he made no threats and there was no violence. The father acknowledged that the parties had a disagreement that day regarding X’s eating habits.
On 8 March 2021 the father called the mother’s mobile. He told the mother he had been at a work function, and had a few drinks. He said he wanted to see X and tried to engage the mother in a conversation. On that same day, the father called the maternal grandmother, and the maternal great grandmother, and threatened to harm himself. The father denied that he had been to a work function. He admitted calling the maternal grandmother. He said he could not recall the exact conversation. The following day, mother reported this as a breach of the Intervention Order.
Two weeks later the father attended the Suburb D Police Station and was interviewed in relation to further breach charges. The statement records that the father:
…exercised his rights and made a no comment interview. He stated that there was no point talking to police because it didn’t matter what he said, as he was charged previously by police anyway, regardless of what he had to say.
On 11 May 2021 the father commenced a Men’s Behaviour Change Program.
On 27 May 2021 the mother filed her Initiating Application seeking to relocate with X to the United States.
In late 2021, the Intervention Order for the protection of the mother and X was extended.
In December 2021 the parties participated in a Child Inclusive Conference. In the memorandum dated 15 December 2021, the Family Consultant recommended that X remain living with the mother, and that time could progress to unsupervised time, upon the completion of a Hair Follicle Test (“HFT”) by the father, and once he had completed a Men’s Behaviour Change Program.
On 16 December 2021, the matter was listed before a Senior Judicial Registrar. Interim orders were made inter alia pursuant to which the father was to complete a Men’s Behaviour Change Program, and was restrained from consuming illicit drugs or alcohol when spending time with X. Time was to resume, on a supervised basis, upon the father returning an HFT result free from alcohol or illicit drugs.
The father said he was unable to book an appointment for a HFT immediately following the making of those orders due in part to a “lack of availability and financial difficulties”.
The father then provided an HFT result dated 7 March 2022 which showed the sample tested negative for illicit substances. The sample had not been tested for alcohol use. The father said he had understood the test would be for alcohol too. Although the father’s solicitors were advised that the HFT result was deficient, the father maintained he was not told of this for around six weeks.
In early 2022 the father was again found to have persistently contravened the Intervention Order, and was placed on a good behaviour bond. He was also ordered to complete a Men’s Behaviour Change Program. In his oral evidence the father said he pleaded guilty “to one phone call”.
On that day a final Intervention Order was made, naming the mother and X as protected persons. The father consented to that order without admission. That order will lapse in late 2023.
The father completed his Men’s Behaviour Change Program on 5 April 2022.
In April 2022 the father proposed that supervised time with X recommence. That was not agreed by the mother, who required the father to provide a HFT free of alcohol before time could resume, as stipulated in the court order.
On about 24 May 2022, the father provided a second HFT result. The results were positive for alcohol, which the father described as providing a “positive low reading”.
On 25 June 2022 the mother advised the father via the parenting application that X had been referred to a medical specialist. The father reimbursed the mother for the out of pocket expenses incurred as a result of that appointment.
In July 2022, following the release of the Family Report, X commenced having video calls with the father, twice a week.
On 11 August 2022 the mother advised the father via the parenting application that X would require surgery. The parents discussed the costs of that procedure if done privately, and the delays in the public system. The parents agreed that they would each pay half of the costs for a private hospital so that the surgery could be undertaken promptly. The mother provided the father with the details of the surgeon, and copies of the information she had regarding the procedure. The father wrote “[p]rivate would be better. I’m happy to pay half of the cost of that!”
On 18 August 2022 the father provided a third HFT result. The results of that test were free of alcohol. At that time, the parties agreed for professionally supervised time with X to resume. That commenced on 24 September 2022.
On 23 August 2022 the mother advised the father of the final cost anticipated for the surgery. The father responded that he was happy to cover half of the private hospital bill “when funds are available” and he wanted to speak with the doctor. The mother told him she had provided all that information already. He did not respond.
The mother scheduled the surgery for late 2022. She said she advised the father of that, and the date on which the payment was required to be made. The father did not respond.
The matter then commenced as a final hearing before me on 29 August 2022. The matter proceeded on 30-31 August and 1 September 2022. The matter was adjourned part heard to 30 September 2022, and adjourned again, part heard after the professional evidence was given. Closing submissions were provided on 26 October 2022.
At the hearing in September 2022 the father acknowledged he had agreed to pay half of the costs of the surgery.
In late 2022 the mother reminded the father of X’s upcoming surgery and that his half share of the costs of $1,844 was due five days later. The father responded “due to not working last week I don’t receive my wage until the 14^th”.
X underwent surgery in late 2022. As the father had not paid his share of the costs, the mother paid the costs in their entirety. To do so she borrowed funds from her family and she also had to withdraw funds she had set aside for X. In circumstances where the father had not paid his half share of the costs, he apparently assumed the mother had cancelled the surgery.
Supervised time commenced at the end of September 2022. The matter was re-mentioned on 19 January 2023, regarding the progress of that supervised time.
I was told that the matter needed to be re-opened, as there had been further issues that had arisen, particularly in relation to supervised visits on 19 November and 3 December 2022.
The matter resumed on 16 February 2023. At that time I had the benefit of an affidavit of Ms O regarding the progress of X’s supervised time with the father. The contents of that affidavit were not challenged by either parent. The mother also relied on an affidavit of her mother. The maternal grandmother was not required for cross examination.
Each of the parties relied on additional affidavits and gave further evidence.
On that day, in light of the very positive relationship that appeared to be developing between X and the father, the parents agreed to interim consent orders dispensing with the requirement that time be supervised. X is now spending four hours on alternate Saturdays and three hours on alternate Fridays with her father in addition to speaking to him by way of video calls each Tuesday. The face to face time is subject to the father completing a breathalyser test showing nil alcohol.
THE EVIDENCE
The matter was conducted in person at the Melbourne Registry. There was some evidence given via Microsoft Teams. There were no technical issues that impacted on the running of the trial. I am satisfied in relation to the parts of the evidence given over Microsoft Teams, I was sufficiently able to hear and assess the evidence.
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The mother relied on the following affidavits of:
(a)the mother filed 9 May 2022;
(b)the mother filed 8 June 2022;
(c)the maternal aunt Ms P filed 11 May 2022;
(d)the maternal grandmother Ms Q filed 9 May 2022;
(e)her psychologist Ms L filed 9 May 2022; and
(f)the mother filed 9 February 2023.
The father relied on the following affidavits of:
(a)the father filed 18 May 2022;
(b)Mr R filed 19 May 2022;
(c)Ms S, Team Leader C Contact Service filed 22 August 2022;
(d)Ms O filed 17 January 2023;
(e)the father filed 2 February 2023; and
(f)the father filed 9 February 2023.
In addition I had regard to:
(a)the affidavit of Ms T who prepared the Family Report, filed 19 August 2022; and
(b)the Child Inclusive Conference Memorandum prepared by Ms U dated 15 December 2021.
The Mother
The mother sought orders that she have sole parental responsibility for X and that she live with her. At the conclusion of the hearing in September 2022, the mother proposed the father’s time, pending my determination, remain professionally supervised, and that as soon as practicable she be permitted to relocate with X to City F, E State. As indicated, following the hearing on 16 February 2023 the mother agreed to time progressing to unsupervised day time visits.
Following the relocation, the mother proposed she would live with her mother, or other family members. She acknowledged her mother’s current accommodation would be insufficient for two adults and a child, and said they would obtain alternate accommodation.
Upon moving, the mother proposed X spend time with the father and communicate with him;
(a)twice a week by video call;
(b)once a year in Australia, with the mother to bring X here, for two weeks; and
(c)for up to three occasions each year in the United States.
At the close of evidence in September 2022, the mother proposed that the first three visits, be professionally supervised at the father’s expense. Thereafter, time could progress to unsupervised visits, incrementally increasing over time to full day periods, with X to remain in her mother’s care for two out of three days over each fortnightly visit. The mother said that there are agencies in E State who provide supervision for parent visitation, although I do not know the costs or availability of any such service provider.
The mother further proposed that twelve months after relocation, the parties should attend mediation to consider progressing the visits to include overnight stays. The mother also said there are agencies in E State that provide dispute resolution to families. Again, I do not know the costs of such service providers.
The mother’s proposals substantially reflected the cautious recommendations made by the Family Report Writer.
In the event the mother was not permitted to relocate immediately, she proposed, as a fall-back position, to delay relocation until around mid-2023. She said that would enable time for X to strengthen her relationship with the father, but still be in City F in time to commence primary school there in late 2023.
In those circumstances, the mother proposed whilst remaining in Australia, after completing three months of professionally supervised time, X should spend time during the day on alternate Saturdays for four hours and Wednesdays for two hours with the father. In addition, she proposed video calls twice weekly. Upon the delayed relocation, a very similar regime to that I have already set out as being the mother’s primary position was proposed.
Lastly, in the event the mother was not permitted to relocate with X, as a further fall-back position, the mother proposed day time visits, on alternate Saturdays and Sundays after three months of supervised time. Again those visits would be for four hours on a Saturday and for two hours on a Wednesday. She further proposed time on the child’s birthday and Father’s Day. Like with her primary proposal, and her first fall-back position, there was no proposal that saw X’s time progress to overnight time. She proposed “the issues of overnight time and the progression of time between the child and the father be adjourned to June 2023”.
The mother did not provide any different proposals in February 2023 for the progression of X’s time with the father. However, she did acknowledge she had been reassured to read in the supervisor’s reports that the time had progressed well and the father had been gentle and caring towards X. She also acknowledged that X was excited to see him. In those circumstances she consented to dispensing with the need for supervision.
In the event the mother was not permitted to relocate, she also sought that she could travel with X to the United States for up to two occasions each year for three week visits.
The mother sought additional orders restraining the father from consuming alcohol/illicit substances when X is in his care. She also sought that the father provide a further clean HFT in early 2023, and complete a breathalyser test prior to, and on the conclusion of any unsupervised time.
Additionally, the mother sought an order that the father attend drug and alcohol counselling, and counselling to address family violence, and that changeovers occur at a police station. She sought orders to facilitate the parties’ communication and for the exchange of information. In her oral evidence, the mother said she remained very concerned about X’s time progressing to unsupervised visits without the father taking genuine steps to change his behaviour and attitude. Without the father engaging meaningfully in counselling, for instance, she said it was very difficult for her to embrace time progressing. She did not make any proposals for overnight time to commence.
The mother appeared to be an emotionally fragile woman. She seemed somewhat emotionally flat and withdrawn during the proceedings, including when the matter was recalled in February 2023. At times she became visibly distressed, both when giving evidence and when listening to the father’s evidence, and that of the other witnesses. For instance, she was clearly very upset by the father’s proposal that she be restrained from moving more than 50 kilometres from her current home, and that she provide him with her address at all times. She was also highly distressed regarding the father’s proposal – as it was at the commencement of the proceedings – to prevent her travelling to the United States with X for 10 years. I note quite appropriately that aspect of the father’s application was not pursued.
I do not agree with the suggestion by counsel for the father that the mother’s affect and presentation in court was a deliberate contrivance to bolster her case. I generally found the mother to be a candid witness. Her affidavit evidence and her police statements regarding multiple incidents of physical violence, verbal abuse and coercive controlling behaviour were detailed, specific and compelling. Her evidence was generally consistent. When cross examined, she answered questions directly and succinctly. I do not agree with the submission made by counsel for the father that the mother has deliberately exaggerated and contorted events to paint the father in a negative light. I am satisfied she did her best to report accurately on her experiences.

Having had the opportunity to hear evidence from both of the parties and their witnesses over an extended period, I accept the mother’s evidence that she was subjected to coercive controlling behaviour by the father, and this has had a profound and lasting effect on the mother’s mental health and emotional wellbeing. Prior to separation, the mother often felt frightened, confused, embarrassed and worthless as a result of the father’s treatment of her. That included him being highly critical of her housekeeping, her food preparation, and her care of X. At times he was verbally abusive, and aggressive. On occasion she said he subjected her to physical violence, choking her, slapping her, throwing objects at her, breaking her possessions and damaging other property.
The mother articulated a cycle of behaviours – with the father at times being domineering, critical and demanding, and at other times being kind and loving. She also described events including the father’s lack of sympathy towards the mother’s physical and emotional difficulties following X’s birth, his anger that she did not maintain the house sufficiently cleanly, his demands regarding sexual acts, and his anger if she did not acquiesce to those demands. The mother became quite obviously distressed when being cross examined regarding these events. The father admitted in his evidence that he did get upset or annoyed when the mother rejected his sexual advances.
The mother described feeling unsafe and hyper-vigilant post separation. She often struggles to sleep. She continues to suffer from significant depression, and experiences panic attacks and anxiety.
I note the suggestion by the father that as the mother had bank cards and a bank account in her name into which the father deposited funds from his pay, that she cannot maintain she was subjected to financial abuse or control. I do not accept that suggestion. Whilst there were bank accounts in her name, as well as the home and the father’s vehicle, so was the mortgage and the vehicle loan. She said the father would threaten not to put funds into her account, meaning without the benefit of his income she would be left unable to pay all the bills. She also said at times he would take her bank card without asking and also threatened to withdraw all the funds from her account. I note that in the mother’s application for an Intervention Order a complaint is made that the father threatened to pay no bills and leave the mother with all the parties’ debts.
The mother has expressed concern about her ability to manage and appropriately parent X if she cannot relocate. She said her fears for her safety have impacted on her to the extent she struggles to leave the home. I also accept that she remains worried and fearful about the father, and about her future in Australia. Her heightened fearful and emotional response to the father was demonstrated in her descriptions of some of the events at recent changeovers.
The mother feels very isolated and alone in Australia. Her mother, her sister and her brother have all travelled to Australia at times to assist the mother, but those visits have generally only been for a few weeks at a time. The mother has also travelled to the United States on occasion. Once X commences school, the duration of that travel would necessarily be primarily limited to school holiday periods.
The mother has no support network here. She is without family or close friends. In City F she said she could live with her brother, her mother, or her grandmother or sister, until she obtains her own accommodation. She said her family will also be able to provide her with practical, emotional and financial support.
It appears the father’s family are also not readily available to assist the mother. Some of the father’s family live in Queensland, which impacts their ability to readily provide practical or physical support to the mother and X. The father said one of his brothers lives in City V, one lives in Victoria but in a different part, and one lives in W Town. In his oral evidence the father said he was not involved with those brothers. I understand the paternal grandfather lives in Suburb AA. However, none of the father’s family members provided evidence at Court as to their ability to assist the father or the mother and X. I note that at the final day of hearing in February 2023 a number of members of the father’s family attended at Court, which the mother clearly found quite intimidating.
In the absence of any support network it is understandable that when her father passed away unexpectedly, the mother turned to the father. I do not accept that in doing so, the mother undermined the allegations she has made regarding the father’s violence towards her. The mother was in a very vulnerable situation, and extremely distressed. She had no one else to assist her in managing herself and caring for X at that very difficult time.
As noted, the father then attended at the mother’s home on a number of occasions in early 2021. The mother deposed that the father attended her home at her invitation on only two or three occasions in early 2021. However, I accept he attended the home on more than three occasions at that time, which the mother conceded in her oral evidence. Save for that aspect of the mother’s evidence, as indicated, I found her to be a compelling witness.
In her oral evidence the mother acknowledged the father attended at the home in early 2021 and that a few days later he provided her with some funds. Over the course of the next few weeks she acknowledged he engaged a gardener to do some work at the home, undertook some household tasks including cooking a meal and bathing X. He also purchased a treadmill and purchased food for her and X on several occasions. The mother acknowledged her memory of precisely what occurred on what day during the weeks immediately following her father’s death was not particularly clear. She said to the best of her recollection he attended the home four times and stayed overnight on one of those occasions. I accept that he may have attended more often than that. She said initially the father was kind and supportive, but this deteriorated rapidly. I note in her oral evidence the mother said she did not request the father purchase her a treadmill. She said the father had previously joked that he would get her a treadmill if she ever got fat.
The mother said during the times the father did attend the home in early 2021, he sought to engage sexually with the mother, which she rejected. That included him waking her at approximately 5.00 am and then getting into the mother’s bed. I do not accept the father’s evidence that he did so to comfort the mother. She was asleep and did not initiate his attendance in her bedroom that morning.
I also accept the mother’s evidence that early 2021 the father attended at her home, intoxicated, and that he was aggressive and frightened the mother, swearing at her and berating her for X’s eating habits. In her oral evidence she said she knew he was intoxicated as he was “bouncing” off the walls as he walked down the hallway, his speech was slurred and one of his eyes was slightly turned out.
In relation to the events that occurred at supervised time commencing on 24 September 2022, it is not in dispute that X has been happy to attend and that her time with the father has been warm, positive and appropriate. However, there were two changeovers that warrant consideration. There were also issues regarding the payment for X’s surgery.
On 19 November 2022 – being the sixth period of supervised time – the mother asserted the father arrived early and parked too close the entrance of Y Centre. She said this caused her to feel quite panicked and frightened and unable to walk into the centre with X. Instead, she called the worker, who came outside to collect X from the mother around the side of the building. The father asserted he parked as far from the front door as he could and remained in his car until the supervisor requested him to enter the premises.
Shortly after that the parties had some communications regarding the payment for X’s surgery in which the mother sought he pay her half of the costs as he had previously agreed to do. The father demanded the mother reimburse him funds for the costs of the preparation of the Family Report prior to him providing funds to her. He did not provide the mother with funds to contribute towards the costs of that surgery. The mother described the father’s failure to pay half of the costs in circumstances where he had agreed he would pay, together with the demand for reimbursement for another matter as amounting to economic abuse. I accept this would have been extremely stressful for her given she has limited funds.
The mother reported the incident at Y Centre and the father’s communications with her regarding reimbursement to the police.
On 3 December 2022 the father coincidentally drove past the mother’s car just before changeover. The mother was driving out of a carpark to make her way to the changeover point, and the father was driving in to that carpark.
In her affidavit the mother said the father waved at her, which she ignored. Her window was wound down as it was hot in the car. She said as he drove past her he waved his hand in front of her face, about six inches from it. She said she was terrified, and thought he was going to grab her or hit her. In her statement to the police the mother described the father as slowing down to a crawl, and putting his arm through her window. To the supervisor, the mother is recorded as having said she was “rattled” as she and the father “drove past each other” and he was close to her window, waving. She also deposed to having been very rattled by this interaction. She felt the father reacted the way he did to seeing her car as an effort to frighten and unsettle her.
The father denied having put his arm inside the mother’s car, or having put his hand close to her face. He deposed that he “waved to [X]”.
The mother also reported this interaction to the police.
I accept that the father did not mean to cause any issues when he arrived early and parked where he did outside Y Centre. I also accept the mother felt distressed and unsafe when she saw his car. In relation to the second incident, I accept that the speed at which the father drove past the mother’s car probably meant the father could not have inserted his arm inside the mother’s vehicle. However, I did not form the impression that the mother had lied about or deliberately exaggerated or fabricated these events. Rather, I accept that she experienced these events as frightening and threatening. In her oral evidence she described that fear washed over her. She also said at that moment she was fearful of being trapped by him.
Having listened carefully to the mother’s evidence, I did not form the impression that she wished to expunge the father from X’s life. Rather, she supports X having a relationship with the father, provided that is safe and consistent. X remained curious about her father at interview with the Family Consultant, despite a lengthy absence from him. She was not fearful to see him, and engaged happily with him. Similarly, when face to face time recommenced in September 2022, X was excited to see her father, and delighted in his company. That must, to a substantial extent, reflect that the mother has not endeavoured to undermine or poison X’s relationship with the father. It is to the mother’s credit that she has been able to separate her attitude towards the father, from X’s right to have a relationship with him.
I note further that the mother prepares X well for the visits, ensuring she has what she needs for the activity she is doing with the father, and is careful to ensure that quality time is maximised. For instance, when the father and X spent time together at the swimming pool, the mother suggested that the father need not take up time at the end of the visit showering and dressing X, and that the mother would attend to that.
I note further that the mother is the parent who apparently took the steps to initiate contact after the parties’ separation. She also arranged for supervised visits. Additionally, I accept the mother’s evidence regarding the video calls that commenced in around mid-2022, namely that those calls generally proceed positively and that X was excited to see the father. Again, these matters strongly suggest the mother has continued to be encouraging and supportive of X having a relationship with her father.
The mother’s witnesses
Ms P
Ms P is X’s maternal aunt. She gave her evidence via Microsoft Teams from her home in City F, E State.
Ms P confirmed that in the earlier years of the parties’ relationship, she observed the father to drink to excess on a number of occasions when he travelled to the United States, to the point where he slurred his speech and struggled to stand. On one occasion during a camping trip, he was so inebriated that the family had to carry him to bed. She said she was aware that the father’s alcohol consumption was an issue for the mother, and that she was also aware on one of the parties’ visits to the United States that the father hid his alcohol consumption from the mother, as they had agreed he would stop drinking.
In her oral evidence, Ms P said she regarded her relationship with the father as good until the parties separated. However, she said that there were periods of time he called Ms P repeatedly, both before and after separation. For instance, during the parties’ relationship, the mother visited the United States, in around 2011. Ms P said during that visit the father called Ms P if the mother did not answer his call on her own phone. Ms P said the father’s multiple and frequent calls were intrusive, with him seeking detailed information as to what the mother was doing, and who else was there.
Ms P deposed that post-separation the father also called her repeatedly, often multiple times in one day, in which he complained about the mother. Ms P said the father also suggested he would harm or kill himself. Ms P said the father would not stop contacting her, and she ultimately reported his harassment of her to Victoria Police. In her oral evidence she said the father did not express in those conversations a desire to see X or wanting to have a relationship with her.
Ms P said she would assist the mother and X if they moved to the United States. She said she has previously provided financial support and she could also provide the mother with accommodation, as well as connecting her with other families in the area, to help the mother develop a supportive network of friends.
Ms P gave her evidence in a straightforward and clear manner. I accept her evidence. I also accept that she will do all she can to support the mother and X if they are living in the United States.
Ms Q
Ms Q is X’s maternal grandmother. She attended in person during the hearing. She confirmed that if the mother relocated to City F with X, she would provide support including by moving into a larger apartment, to house them all.
Ms Q said that she saw the father alcohol affected, early in the parties’ relationship. She said she saw him passed out, and that when roused he became confrontational, verbally abusive and threatened to assault Ms Q’s friend. He then fell over and had to be carried into the home. On another occasion she said the father and mother had gone out, and he fell asleep in the car. Ms Q was unable to awaken him, and instead covered him in blankets and left him to sleep in the car.
Ms Q deposed that when she visited the mother in Australia during her pregnancy in 2018, she heard the father denigrate the mother and her housekeeping. That was despite the mother experiencing severe pelvic instability and needing crutches at that time. Ms Q said he called the mother “trailer trash” on a few occasions.
A few days after X and the mother were discharged from the hospital, the mother returned to hospital with suspected deep vein thrombosis. Ms Q said the father complained about having to remain with the mother in the waiting area. When the mother was assessed as not having deep vein thrombosis he said the day was “big waste of time”. She said the father was quite unsupportive of the mother, and called her a mental case, a hypochondriac and said he was sick of her drama.
Ms Q remained in the parties’ home for three months. She said over that time, the father’s verbal and emotional abuse of the mother escalated. He was angry if X woke him up at night. He told her to be a better mother and keep X quiet, and would shout, and call the mother stupid, lazy and a bad mother. She said when the mother asked for assistance with tasks for X, he would berate the mother, telling her she did nothing all day, but just “lay around eating”. His comments and behaviour often caused the mother to break down in tears.
Ms Q said the father became infuriated if he returned from work and the house was not cleaned to his satisfaction. Ms Q said he complained even when the mother and Ms Q spent considerable time cleaning and tidying. She said the father would yell and rant, complaining there was “dust under the table” or dinner was not ready on time, or there was laundry to be put away. Ms Q said the father repeatedly called the mother lazy, said she did nothing when he was working, that she was a “shit cook”, that he would not eat the food she prepared and she was not a good housekeeper. Ms Q said the mother would be distressed and sobbing at the father’s ongoing denigration of her.
Ms Q said she confronted the father about his poor attitude and abusive behaviours. She said the father maintained that the mother was lazy, and that as she cried all the time she must have “mental problems”. Ms Q said that night she heard the father tell the mother he would clear out their bank account, take X and leave the mother.
After the parties separated, Ms Q said the father frequently called her to complain about the mother. He repeatedly called the mother “mental”, and took no responsibility for the end of the relationship. The father admitted he referred to the mother as being “evil and pure greed” to Ms Q and that the mother was “flat out fucking evil and vindictive”. He also insinuated in text messages that he would hurt or even kill himself, and that he hated being alive. The father acknowledged he did tell Ms Q on a couple of occasions that he felt like “ending myself”.
In her affidavit filed on 2 February 2023, Ms Q deposed that the father had called her on 6 January 2023 (being 7 January 2023 in Melbourne). She said the father was “snarky and sarcastic”, and was yelling, complaining that the mother had told the police he had breached the Intervention Order. He said “what the fuck is wrong with her all I did was try to see my kid”. She deposed:
…he became louder, screaming at me words to the effect of “your daughter is fucking crazy, what the hell is wrong with her? She needs mental help”. [The father] continued saying that he knew I knew all about what was going on and “do you realise how much money she’s cost me dragging me through Court, lawyer fees, counsel fees, tests, classes…and all she does is make shit up! She has mental problems [Ms Q], mental problems. Something needs to be done with her”. [The father’s] voice was so loud that the speaker started crackling and he sounded distorted. [The father] screamed into the phone “you’re probably recording this and I don’t fucking care, I’m over this shit, I’m done with it! I know you’ll run straight to your daughter and tell her everything and I don’t care anymore, I just don’t. I’m over it!”
Ms Q said the father said all he did was see X and “now I can’t even look at [Ms Mulrooney], all I did was acknowledge I saw her. She’s bat shit crazy”.
Ms Q said the father then started complaining about the mother wanting him to pay for X’s surgery, asserting he was not even told what the surgery was. Ms Q said the father said that the mother
“…wants to control everything. You know she has cost me in excess of $160,000.00, for what? She enjoys this little game. All I wanted was for her to pay her share of the fees before I’ll pay her back anything”.

Ms Q said that during the call the father kept speaking over her “ranting and cursing and screamed that [the mother] and I were both crazy”.
Although the father denied the contents and tone of the conversation in his own affidavit he did not seek to cross examine Ms Q in relation to this phone call.
Whilst the father denied the bulk of Ms Q’s allegations, I accept her evidence. When she was cross examined she was an impressive and compelling witness. Her evidence was detailed, specific and consistent. I also accept she will provide the mother with practical, financial and emotional support if the mother lives in the United States.
Ms L – Clinical psychologist
The mother commenced treatment with Ms L on 18 April 2019, very shortly after the parties separated. At the time Ms L wrote her report dated 6 May 2022, the mother had attended 60 sessions with Ms L.
Ms L reported that the mother was referred by her general practitioner with a mental health care plan, in November 2018.
Ms L recorded that the mother reported suffering from postnatal depression following X’s birth. The mother’s personal history included a past history of depressive, adverse events in her adolescence, substance abuse by family members and mental health difficulties. Ms L described the mother as experiencing considerable anxiety and post-traumatic stress disorder (“PTSD”) symptoms, and feelings of isolation away from her family in City F. She said the mother continued to attend upon her with a focus on support and relapse prevention of her major depression and containment of the PTSD symptoms.
Ms L explained:
Perpetuating [Ms Mulrooney's] mental health difficulties are socio-environmental factors including financial stressors, isolation and living away from all her close supports, feeling disconnected from her country of origin and culture and experiencing ongoing patterns of family violence.
Ms L described that the family violence perpetrated by the father on the mother has had a significant impact on her. Ms L opined:
When [Ms Mulrooney] has been exposed to family violence between sessions this has often precipitated an increase in symptoms of depression, anxiety and stress. She experiences a complex range of feelings that are consistent with the consequences of family violence, including symptoms of post-traumatic stress disorder (PTSD) and feelings of grief, sadness, anger, disgust about what has happened in this relationship. Contact with the [father] including documenting her experiences with the other party in preparation of legal material has increased [Ms Mulrooney's] PTSD symptoms of hypervigilance, anxiety, reexperiencing nightmares and negative mood and cognitions.
Ms L also said that the mother’s isolation from her family has contributed to ongoing mental health concerns for the mother and her major depression. Ms L wrote:
Social connection and support is a fundamental factor that assists in the treatment and management of depression and for mothers who have experienced postnatal depression. She has experienced an ongoing deep sadness at being unable to be near her family and share her and her daughter’s life with people she has a loving and secure connection with. [The mother’s] depression has worsened at times of cultural significance (eg Thanksgiving), missing family celebrations and milestones and being unable to be with her family as she grieved the death of her father. Her isolation from her family has also increased her vulnerability with regard to family violence given she has no safe haven or other family members to go stay with or rely on for support in her home environment.
Ms L expressed concern regarding the impact on the mother if she is unable to return to live in the United States with X. She said in those circumstances the mother was at increased risk of psychological distress and ongoing mental health difficulties. Ms L said the mother has a paucity of safe social supports in Australia. She said the mother’s experiences of grief, loss and trauma would likely be exacerbated in the event she is unable to relocate.
Ms L was required to give evidence and she attended Court in person. I found Ms L to be an impressive witness. She gave clear and concise evidence, which I accept.
Ms L confirmed she has not formed the view at any time during her treatment of the mother that the mother’s functioning has been so compromised that her capacity to meet X’s core needs has been impaired. However, she anticipated that if the mother was living in the United States, her mental health issues would reduce. She said the mother would have the benefit of close and secure familial attachments and would feel far less burdened. Ms L also anticipated that interactions with the father, including managing contact arrangements for X, would trigger the mother’s anxiety such that the mother would need professional assistance to manage those responses. Notwithstanding these concerns, Ms L had formed a view over her protracted involvement with the mother that the mother supported X having a relationship with the father, provided that was safe. Ms L opined that it was difficult for the mother to accept unsupervised time as being safe for X in light of her own experiences and repeated breaches of the Intervention Orders. However, she did not regard that as a rigid or unchangeable thought pattern. She did expect that a lack of physical proximity to the father was likely to alleviate the mother’s PTSD symptoms.
In her oral evidence Ms L advised that the focus of her work with the mother over their 60 sessions has been on stabilising her mental health, managing her depression and ensuring she feels safe. Ms L said until that stabilisation has been achieved, it was difficult to move on to deeper therapeutic exploration.
Ms L reiterated that the mother has expressed feeling trapped, experiencing low moods, hypervigilance, sleep disturbance, being on guard, feeling frightened and experiencing anxiety. At times she struggles to leave the home, and has difficulties socialising. Ms L acknowledged that towards the end of 2021 there was a degree of optimism regarding the mother’s mental health, as it appeared to be more stable. However, Ms L could not confirm that the mother had yet sufficiently recovered to return to work. Whilst the ending of these proceedings would bring some relief, Ms L said there were a variety of other factors that contributed to the mother’s mental health issues. In particular, the mother’s sense of isolation and the lack of family support would not be resolved by the conclusion of proceedings if she was required to remain in Australia. Ms L said the impact of being unable to share day to day life with people with whom a person has secure connections cannot be underestimated in relation to a person experiencing depression and trauma. That the mother’s family could visit from time to time, she said, is not the same.
Ms L said if the mother is not permitted to relocate with X, she expected that would further delay her recovery. She expected the mother would feel grief and loss, which would “apply quite a bit of pressure” to the mother’s depression. She said it would be extremely difficult for the mother to accept having to remain in Australia, which she experiences as frightening and insecure. Ms L said the mother would also experience feelings of hopelessness, lack of agency, of having no power or control, and instead continuing to be controlled by the father. Ms L emphasised the large gap in the mother’s life – that she does not have support and security here, that she does not feel safe, that she does not have family here, or others with whom she shares deep connections and roots.
The father
The father proposed the parties have equal shared parental responsibility for X. He agreed that she live primarily with the mother. He also sought an order restraining the mother from moving more than 50 kilometres from her current home in Suburb J. He said he felt an order to that effect would be ‘fair’. Ideally he would live close to the mother and X, so that he could co‑parent.
In summary, the father’s proposals for time with X was that it progress to unsupervised time, during the day, before then introducing overnight time in about 10 months’ time. Time, he said should progressively increase ultimately to a three night weekend, and one night midweek, together with half of all holidays commencing in 2024, together with time on special occasions. I note the father’s proposals for a regime of gradually increasing time were provided effectively at the outset of the hearing. Prior to that – and notwithstanding the lack of time – the father had sought an immediate implementation of four nights per fortnight and an equal sharing of school holidays.
If the mother was determined to move to the United States, the father sought orders that the parties continue to share parental responsibility and X live with the father. I note the mother said she would not relocate to the United States if she was not permitted to do so with X.
As a fall-back position, the father said if any relocation was ordered, it should be delayed for 18 months and would need to be subject to the mother’s compliance with orders for X to spend time and communicate with her father. Pending such delayed relocation, the father’s proposals for time mirrored those set out as being sought by him in the event of no relocation.
As part of that fall-back position, upon relocation, in summary he proposed the mother bring X to Australia annually, that he travel there up to four times each year, and that in the future X could travel for a further holidays during school holiday periods. Additionally he sought twice weekly FaceTime communication.
The father further sought an order that $25,000 of the funds the mother will receive from the sale of the parties’ property pursuant to the final property orders be placed on trust, and drawn down to meet the mother’s share of X’s travel costs.
The father believes the mother has been obstructive in relation to his relationship with X. He described the mother as having severely restricted his access with X, and as seeking to marginalise him in X’s life. He views the mother’s very cautious proposals for time as demonstrating an unwillingness on her behalf to support a relationship between him and X.
Regrettably, it appears the father has a limited capacity to reflect upon his failures in this regard. It was the mother – and not him – who initiated and arranged time spent arrangements between the father and X post separation. When the mother felt unsafe facilitating the time personally, she – and not he – approached C Contact Service and made the arrangements to engage them.
It is also notable that the father is the respondent in these proceedings. He had no time with X from around October 2020 – when C Contact Service ceased supervising visits – until early 2021. There is no evidence that he requested time with X after supervised visits ended and the mother rejected his proposal for unsupervised time. Additionally, there is no evidence that he requested time with X after time ceased again in February 2021.
I remain unclear as to why the father did not take proactive steps between October 2020 and February 2021, or after February 2021 to maintain his relationship with X. Further, the mother in my view cannot be criticised for not agreeing to recommence time in late 2021/early 2022 in circumstances where the father had failed to comply with the court ordered pre-condition for the resumption of time. In my view, the mother cannot be held accountable for the father’s delays in the provision of a clean HFT in accordance with court orders.
The father regards the mother’s allegations regarding violence and alcohol misuse on his part as exaggerated at best, if not fabricated. In his trial affidavit, he denied all allegations of family violence, save for some pushing and shoving during an incident in 2009. When interviewed by Ms U he acknowledged there had been an incident of “physical violence” in 2009, which then led to him giving up alcohol. In his affidavit, he otherwise described the parties’ marriage as “great”.
The father did not concede that the mother would be better supported in City F. He asserted the mother’s family have limited financial resources to assist her. He said the mother had told him that her brother had repeatedly sexually abused her as a child (which the mother denied). He also said that the brother suffered from a medical condition which may be “harmful” to X. The father further asserted that the parties had a lot of mutual friends and a good community in G Town. He acknowledged his family do not want to communicate with the mother.
Notably, the father expressed considerable concern about the mother’s mental health in his affidavit material. He described her as experiencing severe depressive episodes during the parties’ relationship. He also referred to the mother apparently experiencing a breakdown in early 2020, and to what he said were “severe mood changes” on the mother’s part post-separation.
He also expressed concern that the mother needs help to maintain an appropriate home environment for X, deposing that she is not capable of maintaining a clean home without assistance.
The father did not impress as a responsive, caring partner. Rather, he took the opportunity in his affidavit material to criticise the mother’s housekeeping and emotional state post X’s birth. As indicated, the mother was diagnosed with post-natal depression. The father, somewhat insightlessly deposed:
She was not an involved mother during our relationship and while [X] was an infant. During the relationship, I would often return home to [the mother] laying in a dark room with [X] and the house in disarray.
The father also deposed that he had concerns about the mother’s parental capacity, and questioned whether she was providing stable and proper care for X. There does not appear to be any basis for those concerns. I note that the Family Consultant said X was progressing well and appeared to be a happy and well-adjusted child. Department of Families, Fairness and Housing (“the Department”) in their report noted that X’s child care advised they had no concerns for X in her mother’s care, and that she was presented appropriately. They also expressed no concerns about the mother.
The father also complained to Ms T that the mother failed to keep him informed about X. However, the mother produced a number of text messages demonstrating she did regularly contact him regarding X’s health and wellbeing. For instance she informed him in January 2022 that she had an eye check; in February that she had tested positive for COVID-19 and kept him updated with her symptoms; in March that X had been vomiting in the night and updated him the following day that she had improved; in April that she had fallen over at crèche and scraped her face, but suffered no concussion or tooth damage; in May that she had croup and informed him as to the doctor’s advice and kept him appraised of her progress over the next few days. Additionally, the mother informed the father in June 2022 about X’s medical issue, and in August 2022 discussed the options for surgery regarding that issue with the father.
Since the conclusion of the hearing in October 2022 and the matter returning to Court in February 2023 the mother had also communicated with the father when X was unwell in November 2022 and in early 2023.
The father agreed the mother had provided information to him regarding X’s health, but said she was doing that “for the courts”.
The father denied that he abused or berated the mother regarding her housekeeping, although he said he did get frustrated at the state of the home. He said he attended to the cooking and cleaning, and was “just asking for help”. He also said that it was very difficult for him when X was newborn, as she woke during the night, and this was making him very tired. He said he expressed this to the mother, and did not get much sympathy. He did not appear to consider the mother’s significant difficulties at that time, but focussed rather on his own needs.
Whilst the final Intervention Order was made in early 2022, the father said he only agreed to that as he was not financially able to defend the application.
The father’s attendance at the Men’s Behaviour Change Program
The father attended all 27 sessions of a Men’s Behaviour Change Program between May 2021 and April 2022. He produced a letter from the BB Service to confirm his attendance and completion of the program.
Clearly, the father physically attended. However, the mother subpoenaed the report and session notes regarding the father’s participation in that program. In the report, the father’s participation was assessed as “adequate” (with the options being unsatisfactory; adequate; good; very good; and excellent). His program performance in terms of contributions, self-disclosures, understanding on content, insight and overall performance was marked as “unsatisfactory”.
The completion report dated early 2022 stated as follows:
Although [the father] has completed the MBCP his level of understanding and accountability is deemed unsatisfactory due to his level of engagement and inappropriate comments whilst in group. [The father] still uses a blaming narrative of the AFM and the legal system. [The father] will contribute to group when prompted by the facilitators and his responses have been inappropriate on several occasions.
In the notes accompanying the various sessions, the father is recorded as regarding the mother as having set him up to breach the Intervention Orders, deliberately withholding X from him, and not knowing that his behaviours would be regarded as breaches. He described her as a “narcissistic liar”, making “bullshit” allegations. On one occasion he said he would not use the mother’s name as “she’s not worthy after what she is doing to me”. At times he was angry, annoyed, agitated, or challenged and was hostile towards the facilitator. At times he did not participate in the discussion, and at other times, he was argumentative and spoke negatively about the mother. In response to the icebreaker question “if you could have a super power what would it be and why?” the father said he wanted to be able to “burn people alive” just with a click of his fingers. In another session in response to the icebreaker question “if you won the lottery tomorrow, what would be the first thing you do or buy?” he said he would “buy the best lawyer money could buy so I don’t get fucked in court”.
At one session in late 2021, the father said he had decided to keep supporting his child by “not crashing his [motor vehicle] at high speed”.
According to the Men’s Behaviour Change Program report, the father obtained a mask exemption, although the reasons for that remain unclear. The father also expressed a view that he would not obtain a COVID-19 vaccination. During a phone call with a worker in September 2021 the father spoke about his support of the workers’ protests in Melbourne against the lockdowns and vaccination mandates. He said he intended to attend the protests, despite knowing he was not allowed to travel to Melbourne. He said he was not worried about being caught, as he would go on his motor vehicle and that they “won’t catch me […]”.
The facilitators were critical of the father’s engagement in the process. He was described variously as not investing in changing, failing to recognise his controlling behaviours, displaying either an inadequate level, or no level of understanding, insight, empathy or responsibility taking. He was described as using a victim blaming narrative. The facilitators also said they regarded the father as still posing a risk, or assessed the risk level as “at risk”, although what that actually meant was not articulated in the report.
In his oral evidence, the father said the criticisms in the report regarding him and his engagement came as a surprise to him. He was of the view he did engage appropriately and either denied having said many of the comments attributed to him, or said he could not recall. He also said that during the program it felt like “we” [being the men participating in the program] were “getting attacked a lot”. He said his super power comment was made in jest, “to try to get a bit of a laugh” from the other men. He said his comment about not crashing his motor vehicle was another joke, as was his comment about speeding at the protests.
The father’s alcohol use and driving offences

The mother has obtained an exemption regarding seeking child support from the father. In her oral evidence she explained that he has only provided very occasional funds to her. She said if she obtained a child support assessment, then her eligibility for Family Tax Benefit through Centrelink would decrease. She said given the father’s sporadic payments for X, she was very concerned she would be left with an inconsistent and unreliable income stream to meet X’s needs. She also said at times her financial circumstances had been so strained that she attended foodbanks for food, and arranged for X to spend time in day care as they provide X with food at mealtimes.
The mother requested the father’s contribution towards half of the costs of surgery in mid-2022 for X. The mother said that would cost $3,600 in the private system, but she did not have the funds to meet those costs. She requested the father meet those costs. In text messages, he agreed to pay half of the costs, when he had funds available to do so. He said he did not at that time have sufficient funds.
I understand X underwent that surgery in late 2022. On about 18 November 2022, the mother sent the father a message in the parenting app asking the father to pay his half of the costs of the surgery. The father did not respond until 23 November 2022 at which time he requested details of the surgery, when it had occurred and how much it cost. The mother said she was surprised as she had previously provided that information to the father.
The mother sent the father another message asking him to pay his half share of the surgery being $1,567.50 by 9 December 2022. The father said he would pay the costs once the mother had paid $4,400 for the family report and $450 “for the evaluation” which he wanted by 8 December 2022. As I understand it, the father demanded those monies as there was an agreement the mother would reimburse him for those expenses “at settlement”. The final property orders made by consent on 9 March 2022 provide, inter alia, for the property settlement to take effect upon the determination of the relocation application. Accordingly, there was no basis for the father to demand reimbursement in December 2022.
The mother sent another message to the father on 29 November 2022 reminding him that she had previously discussed the surgery with him, that she did not have to reimburse him those funds at this time and that she required him to pay his half of the costs of surgery as he had previously agreed.
The father sent another response requesting to see the receipts of payment, which the mother forwarded to him on 18 December 2022. Despite that the mother provided him with receipts the father maintained that he did not know the surgery had gone ahead until January 2023.
The father deposed:
I have repeatedly explained to [the mother] that due to ongoing legal expenses related to the family law matters I have been unable to transfer her the money, in December 2022 I [injured myself] and I was unable to work for a period of about 6 weeks.
The father continues to say he will pay. He had not done so when the matter concluded before me on 16 February 2023. He said he was working now, but had a long period off over the holidays. He has not filed a tax return for the last financial year and was unable to estimate how much he earned. He said he was not prepared to borrow money from his family to contribute to the costs of X’s surgery. Accordingly, the mother remains solely responsible for the vast bulk of the financial costs of raising X.
The likely effect of a change in the child’s circumstances, including the likely effect of a separation from a parent or other significant persons in her life.
If X relocates to the United States with the mother, the likely effect of that includes she will be physically separated from the father for protracted periods. That may be confusing and upsetting for X. However, I am confident that the mother will do all she can to support and assist X to manage any distress or confusion she experiences.
It is also, in my view, likely that the mother’s psychological functioning will be improved in the event of a relocation. The mother will feel more supported and assisted, enabling her to be more fully emotionally available to parent and respond to X. The mother would, in my view, then be better placed to continue to provide a high standard of care to X in those circumstances.
The practical difficulty and expense associated with the child spending time and communicating with a parent, and whether that difficulty substantially affects the child’s right to maintaining personal relations and direct contact with both parents on a regular basis
If X and the mother remain in Australia, there are no real practical difficulties or expenses associated with X’s time with the father.
If the mother is permitted to relocate with X, it is obvious there will be significant practical difficulties and expenses associated with X spending time with the father. Airfares and accommodation costs – for the father to travel to the United States and for the mother to travel to Australia – will be significant. The travel time from Melbourne to City F is significant. Face to face visits would only be able to occur on an infrequent basis.
In addition the mother proposes X’s time with the father be supervised for a period in City F, should she relocate immediately. In her oral evidence, the mother suggested the parties could utilise a Dispute Resolution Centre in E State, and that there are supervised visitation services available in E State. The mother said she understood it was possible for a service to provide on and off site visitation at a cost of around $50 per hour. There was no other evidence provided regarding the intake processes, costs or availability of such a service.
Given that time has now progressed to unsupervised visits, with facilitated changeovers, it does not seem to me to be necessary to consider the costs and other limitations of supervised time.
The capacity of the child’s parents and any other significant person to provide for her needs, including her emotional and intellectual needs
The mother is concerned the father may not be able to meet X’s needs. That is in part regarding her concerns around his behaviour, and his alcohol use. The reality also is that the father has very limited experience in providing care for X, and what time he has had with her until very recently has always been supervised. Accordingly, his ability to provide for her needs outside a supervised setting is substantially untested.
In her report Ms T opined:
The breaches to the IVO, [Mr Cooper’s] forensic history and his lack of sensitivity toward [the mother] at a psychologically vulnerable time (post-partum) may suggest empathy deficits, poor judgement, a low threshold for stress in response to increased responsibility placed upon him (parenthood) and maladaptive coping strategies (substance abuse).
Ms T noted that the father “appeared to lack ability to understand and respond to [X’s] inner world”.
I note that the supervisors of X’s recent visits with the father did not form the same impression. He was described as being a calm, loving, attuned parent, who responded well to X, followed her lead, and anticipated her needs.
The father asserted the mother does not appreciate the importance of the father in X’s life. He said if a relocation is permitted, the mother is unlikely to facilitate a relationship between him and X. He said the mother has unnecessarily limited and frustrated X’s time with him, and her inability to formulate proposals to include overnight and substantial time reflected the mother’s failure to permit a meaningful relationship between himself and X.
As already observed, I do not share those concerns. Certainly, it will be more difficult to maintain a parent/child relationship in the event of a relocation, but I remain confident that the mother will facilitate and support the father/daughter relationship if she and X live in the United States. Whilst the mother has not supported overnight time to date, in all the circumstances I do not regard that as unreasonable. Moreover, X has remained interested in her father, and happy to engage with him even after periods of prolonged absence. That strongly suggests the mother has not taken steps to undermine the father/daughter relationship.
The father also expressed concern regarding the mother’s mental health and her ability to maintain a suitable environment for X. I note, however, that X appears to be thriving, and presents as happy and stable. That would suggest the mother has so far been able to shield X from her stress, anxiety and unhappiness. She was described by Ms T as a “confident, knowledgeable parent whose narrative about [X] was rich in detail and appropriately concerned for [X’s] short and longer term wellbeing”.
Whilst no doubt it is difficult for the mother to do so without significant supports, I am satisfied the mother is currently able to meet X’s needs. I am less confident about the mother’s ongoing capacity to do so in the longer term if she is not able to relocate with X to the United States. As already noted, the mother appeared exhausted and vulnerable, with limited emotional and practical resources upon which she can draw. If the relocation is not permitted, the mother will need to find a way to continue to parent X as well as reconcile herself to having to remain here.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
The mother remains concerned regarding the father’s history of drug and alcohol use, and his attitude towards the mother. I have already outlined my concerns regarding these issues.
The mother was born in the United States. Her family, including her mother, her sister and her brother remain living there.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
At times it is apparent that the father has not prioritised maintaining his relationship with X, and has to an extent taken a somewhat passive role in pursuing his time with his daughter. That has meant there have been gaps and breaks in X’s time with her father.
It is clear now, however, that the father strongly wishes to be involved in X’s life.
The mother has demonstrated an appropriate attitude to X, and met her responsibilities to care and provide for her to the best of her abilities.
Any family violence involving the child or a member of her family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
There is a final Intervention Order against the father listing the mother and X as protected persons. That remains in place until late 2023.
As already observed, I am satisfied that the father has subjected the mother to family violence both during the parties’ relationship and post separation. I am also satisfied this behaviour has had a significant impact on the mother, as outlined by Ms L.
In relation to the allegations of financial abuse, the father appeared to believe that as the mother had bank accounts in her name, and he paid funds into that account, there could not have been any financial control being exerted by him. In my view, that is an overly simplistic formulation for the reasons already outlined.
I do not accept that the mother having reached out to the father in a time of crisis in early 2021 undermined or diminished her allegations of abuse and coercive control. As noted, the mother had no one else in Australia to assist her. Further, it is clear that at times, the father can be loving and supportive to the mother. It is not unsurprising that she sought his assistance at that very difficult time, in circumstances where she had no other person upon whom she could call. It did not appear to me to be an attempt by the mother to rekindle the parties’ relationship. Ms T also explained that in the context of coercive controlling relationships, there may well be behaviour by a victim that appears inconsistent. There may be overtures by an abuser, which then leads to invitations by the victim, and then at a point the relationship breaks down again. She said this cycle is very common.
The father has been convicted of persistently contravening the Intervention Order and of using a telecommunications service to harass. The father, however, continued to deny all allegations of family violence that have been made against him. As set out, he remained of the view that he has not behaved inappropriately. He minimised the breaches, suggesting that these were somehow ‘minor’ breaches, or that they were not serious as they did not involve physical violence, but comprised phone calls, a hospital visit and delivering flowers. This attitude is most concerning.
I have already set out my views in relation to the comments made and attitude evidenced by the father during his involvement in the Men’s Behaviour Change Program.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
Given that X is young and her relationship with the father is developing, it is more difficult to make orders that are final, and can properly take into account X’s changing needs as she grows and matures.
The interim arrangements for time have been highly successful, and the parties were able to reach an agreement to progress time to unsupervised visits.
However, it does seem to me that X’s best interests are met by making a final order, at this stage, rather than making interim orders. The parties – and by implication, X – have been engaged in litigation in this Court and in the state courts for a protracted period.
Any other fact or circumstance that the Court thinks is relevant
The mother strongly desires to relocate to City F, where she will have the practical and emotional support of her family. The father wants to remain in Australia. He does not propose relocating to City F, and I do not know whether that would be possible even if he wanted to do so.
Although X’s best interests are the paramount consideration, they are not the only consideration. Parents have a right of freedom of movement. That freedom of movement, however, is not unfettered. As observed by Gummow and Callinan JJ the High Court of U v U at [89], a parent’s right to move:
…must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by a movement of a parent.
I note also the observations of Kent J in Heath v Hemming (No 2) [2011] FamCA 749 at [101]:
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
Similarly, the Full Court in Adamson & Adamson (2014) 51 Fam LR 626 at [66] said:
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
Their Honours further observed at [68]:
It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.
This is a matter in which the father says he cannot relocate himself. He also said he may be unable to travel to the United States to visit X if she is residing there. I understand that whilst the father has travelled to the United States in the past, he was required to disclose his offending history when the parties considered relocating to the United States. At that time the father made an application to emigrate. The father said he now cannot obtain a travel visa to even visit the United States and said there is a ‘red flag’ attached to his passport. Whilst he gave that evidence, I do not have any formal statement from any agency that confirms that evidence. Even if the United States generally will not issue tourist visas to persons with a criminal record, it may be that a waiver or exemption could be sought. Again, no evidence was adduced in relation to that. Accordingly, I remain unclear as to whether the father may, or may not, be permitted to visit the United States. Presumably he could have adduced evidence to support his assertion that he is unable to travel there in any context. I also note the father’s own proposals include that he be permitted to travel to the United States on four occasions annually in the event X is living there.
The reality for the mother is that if she is not permitted to move with X, she will then be providing primary care for X in an environment that she desperately wishes to leave, and in which she has few emotional or practical supports. She has no family here. There was little evidence that she has formed any strong friendships here. The co-parenting relationship is extremely poor. The mother has significantly struggled with mental health issues at various times. That includes a time in late 2019 when the mother described she could not get out of bed for days, and could not maintain her home.
The case law makes it clear that the mother’s right to choose where she resides should only be interfered with if X’s best interests are so adversely affected so as to justify that interference.
THE ADVANTAGES AND DISADVANTAGES TO X
The mother presented as a vulnerable, and exhausted woman, who yearns deeply to return home and to the embrace of her family. She has been diagnosed with PTSD, major depression and anxiety. The mother described feeling hyper-vigilant and afraid in Australia, at times struggling to leave the house. It is apparent she feels isolated and unsupported here, and cannot imagine a future in Australia for herself.
The father in his own material conceded the mother has suffered severe depressive episodes. He also deposed that without assistance she was unable to maintain an appropriate home environment for X. That is, on the father’s own evidence the mother is a vulnerable woman, very much in need of emotional and practical supports.
The mother would have the significant benefit of being supported by her family in City F. The maternal grandmother, the mother’s siblings, aunts, grandmother and cousins live close to each other in City F. The mother has a close relationship to those family members in particular. Embraced by the strong support network of her family and friends in City F, the mother anticipates being able to better manager her mental health issues.
If the mother is required to remain in Australia, there is a real risk the mother’s mental health may deteriorate. Ms T’s evidence was that without relational support in Australia, she had concerns that the mother’s mental health could be impacted which in turn could be transmitted to X. She said if the mother was required to facilitate X’s relationship with the father, whilst living here, it was likely the mother would require “considerable resource and safety guards” to provide her with the necessary support.
In her oral evidence Ms T again referred to the difficulties for the mother if she remained here with X, in circumstances where her lived experience of being disempowered, coerced and controlled was denied by the father. She remained concerned about the mother’s ability to manage a co-parenting relationship with the father without the assistance of a supportive network. Ms T said the mother would be made vulnerable by a determination that did not permit relocation, which would likely result in the mother’s stress and distress elevating. Whilst she expected the mother would comply with orders for time, that would come at “a cost” to the mother, and it would be difficult for her to manage on a regular, or fortnightly basis.

Ms L also expressed concerns regarding the negative impact on the mother’s mental health if she was not permitted to return to the United States. Ms L identified the mother would then be at an increased risk of psychological distress, mental health issues and experience feelings of grief, loss, trauma and a sense of powerlessness. Ms L was of the view that the mother’s functioning would likely improve if she was able to relocate and take advantage of the supports available to her in City F.
Given X’s young age, she is wholly dependent on her caregivers to meet her physical and emotional needs. In the event a relocation is permitted, X will have the benefit of living with a primary carer who feels emotionally and practically supported. I note Ms T’s observations that at her young age, “[X’s] psychological and emotional wellbeing remains inextricably linked to that of her mother”. That will change of course as she ages. But for the next few years, X’s wellbeing is very much connected with that of her mother. As noted by Ms T, improvements in the mother’s mental health and psychological functioning will likely flow to X.
There are obvious disadvantages to X in the event of a relocation. X would endure the substantial change of moving to another country, leaving behind a community with which she is familiar.
Most importantly, a relocation would impact the relationship X is able to have with the father. If the father cannot travel to the United States to visit, then face to face time post relocation would be reduced to annual visits at best, together with some video conferencing.
At the time Ms T wrote her report, X was not seeing her father. In those circumstances, Ms T opined that X was likely to feel no loss of that relationship in the event of a relocation. Time has now been occurring. As a result, and on the basis that a bond is forming between X and her father, it may well be that the suspension of that relationship again if the move is permitted, will be upsetting and confusing for X.
If X remains in Australia, that will provide more opportunities for the father/daughter relationship to develop. Time will be able to occur more regularly, and the father will be able to engage with X’s school life, social life and general development far more easily if she remains here. These are of course important advantages for X should she remain in Australia.
ORDERS TO BE MADE
Whilst I must consider the parties’ proposals, I am not bound to choose between them. Rather, I must come to a determination as to what is in X’s best interests, having regard to the factors set out in the legislation.
I have already determined that the mother shall have sole parental responsibility for X for the reasons outlined.
I am satisfied that X’s best interests will be met by living with her mother and spending gradually increasing time with her father. Further, I am satisfied that X should remain in Australia until mid-2023. After that time, the mother and X can relocate to the United States. That delayed departure will enable X to have the benefit of experiencing some more physical time with her father, enabling her to form a deeper bond with and connection to her father. It would also mean X would be a little older, and have developed better cognitive skills so that she can remember and recall that relationship despite absences.
I accept that a relocation to the United States will significantly impact upon X’s relationship with her father. Their time spent together, face to face, will necessarily be significantly less than if she remains in Australia. However, I am satisfied that if carefully nurtured, the relationship can continue to be meaningful to X. Annual visits to Australia together with regular video conferencing will ensure that X remembers her father, and has the ability to reconnect with him regularly. If the father is able to travel to the United States to spend time with X, that will further assist to maintain and develop their connection.
These orders will not give the father 'optimal' arrangements or outcomes. However, I am not required to make orders that will create the most desirable solution whilst simultaneously ignoring each of the parties' fundamental rights to choose where they wish to live consistent with X's best interests. Balancing all the competing considerations, and being mindful in particular of the adverse impact on X's relationship with her father, I am not satisfied that the mother's desire to live in the United States so adversely affects X's best interests that the mother should be required to provide primary parenting to X here. Rather I am satisfied that her X’s interests will be met living with the mother in the United States, and spending regular video time and at least annual face to face time with her father.
I have already referred to the mother’s mental health issues, and the benefits to her to be able to provide the primary parenting for X in an environment in which she is well supported and best able to manage and function. Those benefits to the mother will flow also to X.
In so far as submissions were made that the mother’s proposals in the United States was inchoate, I am of the view that her proposals were sufficiently developed for me to assess them. It does not matter in my mind with which specific family member the mother and X would reside. I accept the mother has various options. It also does not matter that not all members of her family were on affidavit. Her mother and sister were, and having heard from them I was well satisfied that the mother has emotional, practical and financial supports available to her in the United States.
In terms of X’s ability to manage spending increased time with the father, I note Ms T’s observations as to X’s positive style of engagement and her ability to be at ease in novel situations. She is a confident and self-assured child, who separated easily from her mother. X and the father have now had several months of supervised time together which I have already set out has progressed extremely well. She transitioned well into his care and was happy and obviously at ease in his company.
Accordingly, I am satisfied that X’s relationship with her father will be sufficiently established so that the relocation can occur no earlier than mid-2023. Further, I am satisfied that her time with the father does not need to be introduced as cautiously as suggested by Ms T, or as sought by the mother.
In terms of the orders for time between now and the relocation, day time visits of four hours commenced in February. I am of the view those visits can be further extended to full day visits, from 10:00 am to 6:00 pm each alternate Saturday and Sunday. Changeover arrangements shall continue to be facilitated by B Family Services or C Contact Service as provided in the interim orders made on 16 February 2023 pending the relocation.
In relation to the orders for time upon the relocation, I am of the view that X’s best interests will be met by making orders that provide some certainty. That does involve a degree of predicting the future. Given the very positive relationship that is developing between X and the father it seems to me that time can progress more rapidly than recommended by Ms T. I accept that X may for the next few visits need a little time to settle into the father’s care. However, it does not seem necessary for orders to be overly cautious. Overnight time, can, in my view, be implemented reasonably promptly, starting with one night, then two nights and then four nights on each visit in 2024 and then in blocks of five nights and a week in 2025 and then in blocks of 14 nights from 2026.
I am not going to restrain the father from consuming any alcohol at all for 24 hours prior to X being in his care. Rather, an order restraining him from consuming alcohol to excess is adequate. I will also not include a requirement that the father provide a breathalyser result prior to the commencement of each visit following the making of these orders. He produced a clean HFT in mid-2022. He has not been observed at any of the supervised visits to be alcohol affected. Neither party has raised an issue with the breathalyser test results that the father has been providing since early 2023.
Following the relocation, changeovers for X’s time with the father in Australia shall occur at the Suburb D Police Station unless otherwise agreed. Although it is far from ideal to have exchanges made at police stations, I am mindful that the mother is fearful of the father, and having changeovers at a police station may give her some comfort. If the parties agree to another arrangement in due course, they can do so.
Changeovers in the United States will occur at a venue as agreed, and failing agreement, as nominated by the mother. She will be at liberty to facilitate the changeovers herself, or she can arrange for a family member or friend to accompany her, or to undertake the actual changeover on her behalf.
I will also require the parties to keep each other advised as to where they are living, and ensure that each parent has current contact details for the other. Additionally, I will require the father to provide the mother with the details of any address at which he will have X overnight once that commences.
I am not prepared to make an order requiring the mother to quarantine funds from her property settlement to meet the costs of travel. That proposed order was introduced in the father’s proposals at the conclusion of the hearing. It was not put to the mother. There was no exploration of this order or the impact it would have on the mother during her evidence. Nor was I addressed as to what power I would be exercising if I was to make such an order.
The mother will require funds to establish herself and X in a home in the United States. She expects she will soon return to the workforce. I am satisfied the mother can appropriately manage her financial affairs such that she can meet the costs of travelling to Australia herself annually. The parties will share the costs of X’s return ticket. I am also not of the view that the mother presents as a flight risk – and I am satisfied she will meet her obligations under my orders to facilitate time. At any rate, the Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and the United States.
It may be that there is a process available to secure the registration and enforcement of the orders I make in the E State. However, I do not know as there were no submissions made to me in that regard. I am making an order that the mother make a request to the Registrar of this Court for these orders to be sent for registration in E State, so that if there is a process for registration that can be undertaken. I understand the requesting party must provide the details of the appropriate court in the overseas jurisdiction.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding three hundred and forty-one (341) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 17 April 2023

File number:	MLC 5907 of 2021
Judgment of:	CARTER J
Date of judgment:	17 April 2023
Catchwords:	FAMILY LAW – RELOCATION – where the mother seeks to relocate to the United States of America with the child – allegations of family violence perpetrated by the father – consideration of meaningful relationship – child’s best interests – relocation permitted
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA Family Law Regulations 1984 (Cth) reg 24
Cases cited:	A & A: Relocation Approach (2000) FLC 93-035 Adamson & Adamson (2014) 51 Fam LR 626 AMS v AIF (1999) 199 CLR 160 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Godfrey v Sanders (2007) 208 FLR 287 Heath v Hemming (No 2) [2011] FamCA 749 KB & TC (2005) FLC 93-224 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) FLC 93-405 Morgan & Miles (2007) 312 FLR 114 Taylor v Barker (2007) 214 FLR 433 U v U (2002) 211 CLR 238
Division:	Division 1 First Instance
Number of paragraphs:	341
Date of last submissions:	16 February 2023
Date of hearing:	29 August – 1, 30 September, 26 October 2022 19 January, 16 February 2023
Place:	Melbourne
Counsel for the Applicant:	Sarah Mansfield
Solicitor for the Applicant:	Trapski Family Law
Counsel for the Respondent:	John Williams
Solicitor for the Respondent:	Mazzeo Lawyers

MLC 5907 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MULROONEY Applicant
AND:	MR COOPER Respondent

order made by:	CARTER J
DATE OF ORDER:	17 April 2023