Nicholson & Andrews - [2022] FedCFamC2F 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nicholson & Andrews [2022] FedCFamC2F 76

File number(s): SYC 4656 of 2019

Judgment of: JUDGE BECKHOUSE

Date of judgment: 2 February 2022

Catchwords: FAMILY LAW – PARENTING – Relocation from NSW to Tasmania – where the father and Independent Children’s Lawyer oppose relocation – admissibility of expert report due to bias and forensic prejudice – role of family report writer – when intimidating, monitoring and controlling behaviour induces fear – when need to protect from harm is prioritised over promotion of parental relationship – the state of the mother’s mental health and the impact on her parenting capacity – where articulating safety concerns is not evidence of a parents’ inability to promote a meaningful relationship – long term impact of exposure to parental conflict on the child – relocation permitted.

Legislation: Evidence Act 1995 (Cth), s.135
Family Law Act 1975 (Cth), ss.117, 60CC, 61DA, 65DAA, 69ZT(1)
Federal Circuit Court Rules 2001 (Cth), rr.15.06A, 15.07
Federal Court Rules 2011 (Cth), Pt.23

,

Cases cited:
AMS & AIF (1999) 163 ALR 501
Bass & Bass [2008] FamCAFC 67
Collu & Rinaldo [2010] FamCAFC 53
G & C [2006] FamCA 994
Godfrey & Sanders (2007) 208 FLR 287

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

Morgan & Miles (2007) FLC 93-343

MRR & GR (2010) 263 ALR 368
Hildebrand & Mathisen [2012] FMCAFam 1127

Division: Division 2 Family Law

Number of paragraphs: 226

Date of hearing: 7 – 10 June 2021

Place: Sydney

Counsel for the Applicant: Mr Wong

Solicitor for the Applicant: Finn Roache Lawyers

Counsel for the Respondent: Mr Tockar

Solicitor for the Respondent: MGA Law

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
ORDERS

SYC 4656 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NICHOLSON

Applicant

AND:
MS ANDREWS

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

8 FEBRUARY 2022

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous orders are discharged except for Order 6 to 9 of the Orders made on 10 June 2021 which will remain in place until the mother departs for Tasmania with X.

Parental Responsibility
2.The parties shall have equal shared parental responsibility for the child, X born in 2015 (hereinafter “the child”).
3.The mother shall have responsibility for making decisions for the day to day care of the child when the child is in her care.
4.The father shall have responsibility for making decisions for the day to day care of the child when the child is in his care.

Live with
5.The child shall live with the mother and the mother be and is permitted to relocate the child to live in Tasmania.

Spend time with
6.Unless otherwise agreed in writing by the parties, the child shall spend time with the father following the mother’s move to Tasmania as follows:
(a)During school term time, on the first weekend of each month in Sydney from Friday evening until 5.00 pm on Sunday or 5.00 pm Monday if the Monday selected is a public holiday or a pupil free day. With changeovers to take place at an agreed location and failing agreement at Sydney Domestic Airport.
(b)On one further occasion each month in Tasmania, provided it is not a month during which the Tasmanian school holidays fall, from after school on Friday until 5.00 pm on Sunday and such time shall not occur on a consecutive weekend to the time provided for in Order 6(a).
(c)The father be permitted to extend the time in Order 6(b) on one occasion each school term so that it commences after school Thursday until before school Tuesday provided he provides the mother with 21 days’ notice in writing.
(d)During term 1, 2 and 3 Tasmanian school holiday periods, for one block period of seven (7) nights by agreement but failing agreement from the first Saturday after school concludes until 5.00 pm the following Saturday.
(e)During the January Tasmanian school holiday period, for two separate non-consecutive periods:
(i)In 2022 and each alternate year thereafter, from 1.00 pm on the 29th of December for 12 nights and another 12 night period by agreement. Failing agreement from 1.00 pm on 15 January until 3.00 pm on 27 January.
(ii)In 2023 and each alternate year thereafter, from 1.00 pm on the 23rd of December for 12 nights and another 12 night period by agreement. Failing agreement from 1.00 pm 13 January until 3.00 pm on 25 January.

(f)For the periods of time spent with the father during school holiday periods, the mother shall deliver the child to the father at the agreed location, and failing agreement at Sydney Domestic Airport, at 1.00 pm on the specified day and the father shall return the child to the agreed location, and failing agreement at Sydney Domestic Airport at 3.00 pm on the specified day and dependent upon the reasonably available flights.
(g)If changeover does not occur at school in Tasmania, then changeover is to occur at the front of the airport terminal in Tasmania or such other location as agreed between the parties in writing.
(h)Between 1 October and 1 December each year, the parties will agree upon the schedule of visits for the child in the following year commencing 1 January. The agreed schedule will include the dates of travel, preferred flight and person booking flights. The schedule will not be varied unless with the consent of both parties.
(i)At other times as agreed between the parties.

7.If the parties are residing within the same city, on the child’s birthday and the party’s birthdays as follows:
(a)If the child is in the care of the father, the mother is to spend time with the child for two (2) hours on that day at a time agreed between the parties and failing agreement from 5.00 pm until 7.00 pm.
(b)If the child is in the care of the mother, the father is to spend time with the child for two (2) hours on that day at a time agreed between the parties and failing agreement from 5.00 pm until 7.00 pm.
(c)The child shall spend time with the mother on the mother’s birthday, for a period of at least two (2) hours, if the child is not spending time with the mother.
(d)The child shall spend time with the father on the Father’s birthday, for a period of at least two (2) hours, if the child is not spending time with the father.

8.The mother will use her best endeavours to facilitate the child spending time with paternal family members in the event that they visit Tasmania, including facilitating their attendance at any extracurricular and school activities in which the child is engaged.
9.Where the time arrangements with the father require flights to occur:
(a)The father shall provide two (2) months’ notice of the second weekend of time with the child pursuant to Order 6(b).
(b)The parties shall allow for a one to two hour difference in the commencement or conclusion of time, to allow for flight schedules and possible flight delays and the parties shall keep one another informed as to same.
(c)Within seven (7) days of such time occurring, the parties shall provide the relevant flight itinerary to the other party.

10.The mother be at liberty to have a delegate or nominee attend changeover and/or travel interstate with the child and that the child shall be able to travel as an unaccompanied minor when he reaches high school, or such earlier time as agreed between the parties in writing.

Travel costs
11.For the purposes of travel costs:
(a)The mother shall contribute $1,000 per annum towards the costs of the child’s airfares and after that amount has been spent, the parties shall share the costs of the child’s travel equally.
(b)The mother shall make all flight bookings for the child’s flights between Tasmania and Sydney balancing the need for the cheapest flights possible with the convenience of travel times for child and the father.
(c)The mother will advise the father of the cost of the airfares and the amount to be reimbursed by him pursuant to Order 11(a). Reimbursement of the costs is to be made within 14 days of the request being made by the mother to the father.
(d)The costs of the father’s travel shall be borne solely by the father.
(e)The costs of the mother’s travel shall be borne solely by the mother.
(f)The costs of the mother’s nominee or delegate shall be borne solely by the mother.
(g)The mother shall use her best endeavours to ensure that the father is given access to a registered motor vehicle at all times that he is in Tasmania.

Electronic communication
12.The child shall communicate with the parent he is not with (“non-resident parent”) via telephone/video call:
(a)At least two times a week on days and times to be agreed by the parties.
(b)On his and the parties’ birthdays at 5.00 pm with the non-resident parent to initiate the call and the other parent to facilitate the call.
(c)On Christmas Day at 10.00 am with the non-resident parent to initiate the call and the other parent to facilitate the call.
(d)On Easter Sunday at 10.00 am with the non-resident parent to initiate the call and the other parent to facilitate the call.
(e)On Father’s Day, if the child is not already spending time with the father (and the father shall be entitled to change a weekend time to ensure that the child is with him on that weekend), at 10.00 am with the mother to initiate the call.

Non-denigration
13.Neither parent shall threaten, harass, abuse, assault or denigrate the other parent or members of their family, nor allow the child to remain in the presence or hearing of a third party who is threatening, harassing, abusing, assaulting or denigrating the other parent or members of their family.

Medical
14.If the child is involved in any medical emergency the parent who has care of the child shall notify the other parent as soon as reasonably practicable.
15.Each party shall ensure the other party is kept informed as soon as is reasonably practicable of:
(a)any medical problems or illness suffered by the child whilst in their care;
(b)any medication that has been prescribed or otherwise given for the child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)any social, school or religious functions which the child is to attend;
(e)the telephone contact number, residential address and email address of either party; and
(f)any other matter relevant to the welfare of the child.

16.Each of the parents shall authorise and direct any medical practitioner, psychologist, counsellor or therapist who has consulted with or treated the child to provide both parents with any and all information.

Ancillary orders
17.Each of the parents is restrained from requesting or directing the child to convey any information or request to the other parent, and shall unless in the case of an emergency communicate with the other parent by way of WhatsApp messaging service.
18.Each party is at liberty to attend at the child’s school, sporting and extracurricular events for the purposes of any function or activity normally attended by parents.
19.The mother shall pay the full costs of the Independent Children’s Lawyer.
20.The Independent Children’s Lawyer be discharged.
21.The matter be removed from the list of cases awaiting finalisation.

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

These are parenting proceedings with respect to the child X (“X”) born in 2015, who is aged 6.
The mother is seeking to relocate X to Tasmania.
The father is not agreeable to the relocation.
These reasons for judgment explain why I have determined that it is in X’s best interests to permit him to relocate to Tasmania with his mother.
AGREED ORDERS
During the course of the hearing the parties consented to the following final parenting orders:
(a)That they have equal shared parental responsibility for X.
(b)That on an interim basis X live with the mother (until such time as he may transition to spending equal time with the father).
(c)Some general information orders and restraints.
These agreed matters are contained in the interim consent orders dated 10 June 2021. They are incorporated into the final orders where appropriate.
ISSUES
The significant issues requiring determination are:
(a)whether X be permitted to relocate to Tasmania; and
(b)what time the father is to spend with X.
BACKGROUND
The father was born in 1979 and is aged 42 years.
The mother was born in 1979 and is aged 42 years.
The mother lived in Tasmania from 1981 and attended school there. In 1998 she moved to Sydney to commence tertiary studies. The mother’s parents and some of her immediate family remain in Tasmania.
The parties met in 1998 and commenced a relationship later that year.
The parties commenced cohabitation in Canberra in 1999. They moved to Sydney in 2002, and married in USA in 2012.
X was born in 2015.
On 12 September 2018 the parties separated under the one roof when the father moved into the granny flat at the former matrimonial home. On 25 January 2019 the father vacated the former matrimonial home.
Between January and September 2019 the father arranged and spent time with X on approximately 9 to 11 occasions. Each visit lasted approximately 4 to 9 hours and one occasion included overnight time while the paternal grandparents were visiting.
Interim consent orders were made on 23 September 2019 by Judge M Neville providing for X to live with the mother and spend time with the father on each alternate Saturday from 10:00am until Sunday at 5:00 pm, and on each Tuesday from after childcare until 7:00 pm.
On 10 June 2021 the parties agreed to incrementally extend the father’s time with X. Pursuant to those Orders X spends alternate weekends with the father from after school on Friday until the commencement of school on Monday and each Tuesday from after school until 7:00 pm. X has also been spending block periods with the father during school holidays.
As at the date of the final hearing:
(a)The mother lives in Suburb B, NSW.
(b)The mother works for Employer C as a professional.
(c)The mother has been in a relationship with Mr D (“Mr D”) since January 2019. Mr D resides in City E, Tasmania, with his three children from a previous relationship who are aged 18, 12, and 7.
(d)The father lives in Suburb F, NSW.
(e)The father is employed as a professional in the armed services based in Sydney.
(f)The father has been in a relationship with Ms G (“Ms G”) (born in 1986) since around February 2018.
THE POSITION OF THE PARTIES AND THE EVIDENCE
Both parties were legally represented and an Independent Children’s Lawyer (“ICL”) was appointed to represent X’s best interests.
The father’s proposal is set out in his Case Outline. For ease of reference the orders he seeks are extracted in Annexure A but can be summarised as follows:
(a)That the parties shall have equal shared parental responsibility.
(b)That X shall live with the mother in Sydney.
(c)That in the first three months from the making of these orders, the father spend overnight time with X two nights each alternate weekend, and one night each intervening week.
(d)That thereafter X’s overnight time with the father progress to one extra night each alternate weekend and by one night during the week each intervening week.
(e)That once X commences year two, he spend time with each parent on a week about basis.
The father relied upon:
(a)Initiating Application filed 17 July 2019;
(b)Notice of Risk filed 17 July 2019;
(c)Affidavit of Mr Nicholson filed 6 May 2021;
(d)Affidavit of Ms G filed 6 May 2021;
(e)Affidavit of Ms H filed 21 May 2021; and
(f)Affidavit of Ms J filed 6 May 2021.
The father called the following witnesses who were cross-examined by the mother and the ICL:
(a)Ms J; and
(b)Ms H.
The mother’s proposal is set out in her Case Outline filed 26 May 2021. For ease of reference the orders she seeks are extracted in Annexure B but can be summarised as follows:
(a)That the parents shall have equal shared parental responsibility.
(b)That X shall live with the mother and the mother be permitted to relocate with X to live in Tasmania.
(c)That during the school term the father shall spend time with X for two weekends each month, and during school holidays.
The mother relied upon:
(a)Response to Initiating Application filed 16 September 2019;
(b)Notice of Risk filed 16 September 2019;
(c)Affidavit of Ms Andrews filed 10 May 2021;
(d)Affidavit of Mr K filed 10 May 2021;
(e)Affidavit of Mr L filed 10 May 2021;
(f)Affidavit of Mr D filed 10 May 2021; and
(g)Affidavit of Ms M filed 11 May 2021.
The mother called the following witnesses who were cross-examined by the father and the ICL:
(a)Ms M;
(b)Mr K;
(c)Mr D; and
(d)Mr L.
The ICL’s proposal was prepared on the final day of the hearing. For ease of reference the orders sought by the ICL are extracted in Annexure C but can be summarised as follows:
(a)That the parties have equal shared parental responsibility for X.
(b)That X live with the mother in the Sydney Metropolitan area.
(c)That X spend time with the father each alternate weekend during school terms with such time to increase on a graduated basis to each alternate weekend from after school Friday until before school Monday, and after school Tuesday until before school Wednesday in the intervening week.
CREDIT
Generally the Court is reluctant to make adverse findings in respect of a party’s credit in parenting proceedings.[1] However, it has been necessary to do so in this matter. This is because I cannot discharge my obligation to make orders that are in the best interests of X unless I make an assessment regarding the differing accounts given by the parties in respect to their conduct.
[1] see Adamson & Adamson (2014) FLC 93-622 at 79,703.
The mother was observed to be visibly anxious by the presence of the father in court. Her cross-examination was paused on an occasion due to her distress.
She demonstrated an ability to consider the perspectives of those around her and remained child focussed. She gave direct and honest answers to questions, even when the answers she was giving did not support her case.

For example, in cross-examination the mother conceded that she made snide remarks to the father about X spending time with his partner, Ms G. Furthermore, she admitted to feeling humiliated by the father, and remarked to counsel for the ICL that she did not have photos of the father in her home for X to look at as she “find[s] those very difficult to see on a day to day basis.”[2]
[2] Transcript dated 10 June 2021, p.304, line 23.
For these reasons I found the mother to be a credible witness.
The father was observed to find the process of cross-examination very stressful and tiring. I found that he gave evidence with as much detail as was permissible. On several occasions, he talked over counsel and endeavoured to provide information that he was not asked to provide. He had a tendency to be argumentative. During cross-examination he blamed others, especially the mother, for any personal shortcomings or matters he might be criticised for. I formed the view that he lacked insight into his behaviour and the impact that it might have on those around him.
For example, the father was asked by counsel for the ICL about his “anger issues” and an email he wrote to the mother where he stated “I have anger issues”. The following line of cross-examination took place:[3]
[3] Transcript dated 8 June 2021, p.119, lines 16-30.
[COUNSEL FOR THE ICL]: You were telling her more than that, that you were actually saying in a broad sense you had anger issues?
[THE FATHER]: That is my assessment, no – so I made that after being badgered and bullied.
[COUNSEL FOR THE ICL]: And you – so do you blame her that you had anger issues?
[THE FATHER]: No, I blame her for the email that I wrote.
[COUNSEL FOR THE ICL]: What do you mean by that, sir?
[THE FATHER]: When I was being constantly bullied and harassed whilst I was at work by Ms Andrews.
[COUNSEL FOR THE ICL]: Do you regret saying – writing that you had anger issues?
[THE FATHER]: Very much.
[COUNSEL FOR THE ICL]: So you don’t believe you had anger issues?
[THE FATHER]: I don’t believe I have anger issues.
[COUNSEL FOR THE ICL]: So why did you write it?
[THE FATHER]: Out of exasperation and frustration.
The father was cross-examined about an altercation he had at the swimming pool when X was present. He again used the opportunity to apportion some blame on the mother for the exchange:[4]
[4] Transcript dated 7 June 2021, pp. 53-54, lines 40 – 16.
[COUNSEL FOR THE MOTHER]:…do you remember having an issue with another parent at X’s swimming pool in December 2018 and you writing a text message to the mother where you use the following words. You say you had words to the stupid Indian woman and that her kid is a shit and disrupts the lessons continuously and saying probably because the filthy Indian went and complained. Do you remember that message which is annexure F to the mother’s affidavit?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: Now, when you wrote that were you angry?
[THE FATHER]: No.
[COUNSEL FOR THE MOTHER]: Were you cool, calm and rational?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: So in a cool, calm and rational way you do things like tell your child that you’re going to put a bunny rabbit in the oven, that you will refer to filthy Indian people whose kids are a shit, that stupid Indian woman. These are the kinds of things you say in a cool, calm and rational way?
[THE FATHER]: To an adult, yes, that’s what I said.
[COUNSEL FOR THE MOTHER]: I see, see?
[THE FATHER]: Not to a child.
[COUNSEL FOR THE MOTHER]: So it wasn’t anger?
[THE FATHER]: It was not.
[COUNSEL FOR THE MOTHER]: These comments about this Indian woman, that wasn’t done in anger. I think that’s what you’ve said; right?
[THE FATHER]: It was done in the heat of the moment where I was being accused by my former partner of something.
Where there is conflict between versions of events I prefer the accuracy of the mother’s evidence.
THE SINGLE EXPERT REPORT
Rule 15.06A of the Federal Circuit Court Rules 2001 (Cth) applied at the time of hearing this matter and defines expert as follows:
"expert", in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person's training, study or experience.
The ICL relied upon the Single Expert Report prepared by Ms N (“Ms N”). The mother also relied upon an affidavit of her treating psychologist Ms M affirmed 11 May 2021.
There was a controversy raised about the admissibility of the Single Expert Report and the father argued against its admission. He contended that the report offended the principle in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) which requires the identification of considerations upon which an expert’s opinion is based to demonstrate that the opinion is based on the expert’s expertise.
The father also contended that the report demonstrates an apprehension of bias against him.
These matters would be cured, he argues, by not admitting the report into evidence. In the alternative, he proposed the court consider the admission of the report following cross-examination of the expert by way of a voir dire on the first day, by provisionally admitting the report with consideration as to its rejection or weight at the conclusion of its evidence or admitting the report in its totality and considering weight.
At the commencement of the trial I was asked to determine the issue. Having heard oral submissions from the legal representatives and read all relevant written material, I determined that the Single Expert Report would be admitted in its totality and I gave reasons for my decision.
The admission of the report, does not however mean that the father’s objections to it are disregarded.
Observing the approach set out by the Full Court in Bass & Bass [2008] FamCAFC 67 Ms N was cross-examined and the court now must decide whether to accept, reject or give only limited weight to all, or part of her report.
Rule 15.07 of the Federal Circuit Court Rules2001 (Cth) requires that the expert witness be guided by the Federal Court practice direction guidelines for expert witnesses. These guidelines are found within the Federal Court’s Expert Evidence Practice Note. In addition to the matters identified at Rule 15.07 of the Federal Circuit Court Rules 2001 (Cth), the practice direction provides that:
(a)The practice direction is to be read with Part 23 of the Federal Court Rules 2011 (Cth).
(b)Notwithstanding that expert evidence is relevant, the court may refuse to admit it pursuant to s 135 of the Evidence Act 1995 (Cth) if its probative value is outweighed by other considerations.
(c)Whilst parties should be cautious not to have inappropriate communications when retaining or instructing an independent expert, there is no principle of law or practice that obliges a party to engage a “consulting expert” to avoid “contamination” of the expert who will give evidence.
(d)The court expects that the parties will, at the earliest opportunity, provide to the expert all relevant information (whether helpful or harmful to a party’s case) so as to enable the expert to prepare a report of a truly independent nature.
(e)Experts should willingly be prepared to change their opinion or make concessions where necessary or appropriate, even if doing so would be contrary to the expert’s previously held or expressed view.
As this is a parenting matter, s 69ZT(1) of the Family Law Act 1975 (Cth) (“the Act”) applies.
Section 135 of the Evidence Act 1995 (Cth) provides a general discretion to refuse to admit evidence where its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
After hearing the issue of its admission on day one of the hearing, I ruled that the probative value of the report was not outweighed by the matters contained in section 135. Whilst I allowed Ms N’s report to be admitted into evidence it is necessary to address the objections raised by the father and determine whether to accept, reject or decide the weight to attach to the report.
THE FATHER’S POSITION
The father’s first objection to the Single Expert Report was on the grounds of bias. His second objection (and the one that was pressed as the basis for striking out the report), was that in arriving at her conclusions, Ms N relied upon two reports prepared on behalf of the mother. One being the report annexed to an affidavit of the mother’s treating psychiatrist Dr O (“Dr O”)[5] and the other a report annexed to an affidavit of the mother’s treating psychologist, Ms Ms M (“Ms M”). Ms M filed an updated affidavit on 11 May 2021 and gave evidence at the hearing. The mother on the other hand did not rely upon Dr O’s affidavit and Dr O did not give evidence.
[5] At page 4 of the Single Expert Report dated 15 June 2020 she identified it as one of the documents read by her.
Counsel for the father submitted that the affidavit and reports of Dr O and Ms M contain a series of assumptions that go beyond the scope of prognosis but rather advocate for the mother’s move to Tasmania. That assumption primarily is that the mother’s mental health will improve in the event that she relocates from Sydney to Tasmania.
The objection made was that the material does not form part of the mother’s case nor was Dr O called to give evidence. This meant that Dr O’s underlying assumptions (which Ms N relied upon) were not tested. Indeed when Ms N prepared her report, based on many things including the clinical observations of Dr O and Ms M, she wrote that “the advantages [of the relocation] to Ms Andrews have been unambiguously established.”[6] The report therefore caused a “forensic prejudice” in the eyes of the father, because the assumption “weave[d] its way through [Ms N’s] report.”[7]
[6] Single Expert Report dated 15 June 2020, paragraph 114 (“Single Expert Report”).
[7] Transcript dated 7 June 2021, p.5, line 39.
The father contended that the assessment of him by Ms N was disproportionately negative, which is supported by her acceptance of the mother’s contentions as fact. This was in circumstances where the evidence was yet to be tested. In doing so, he argues that Ms N became a fact finder. He cites another example where Ms N dismissed the father’s concerns about the cost of travel, noting that the father could obtain flights and accommodation more cheaply than he was suggesting. This, the husband contended, was indicative of her using her judgement rather than her expertise as a single expert.
There are several examples the father relies upon to establish the contention of bias.
There was a “mix-up” on the day of the individual interviews between Ms N and the father, which caused the interviews to start almost an hour after the scheduled time. At page 9 of the Single Expert Report Ms N outlines those circumstances. She then commented:
Mr Nicholson’s frustration and irritation were palpable and his hostility, which bordered on aggression, was disproportionate to the circumstances, even allowing for the fact that family report interviews are perceived as ‘high-stakes’events and it is acknowledged that parties find them quite stressful because of this.[8]
[8] Single Expert Report, paragraph 23.
Later she observed that:
He [the father] appeared impatient and frustrated with the process on numerous occasions, with a low level of irritation running beneath the surface. He resisted being reflective or responding to prompts for more information and he seemed inexplicably hostile towards questions that were even vaguely challenging. His answers at times had sarcastic overtones and his contempt towards Ms Andrews was obvious. Mr Nicholson may not have intended to be intimidating in his manner, but this was how the report writer perceived him.[9]
[9] Single Expert Report, paragraph 25.
The father contended Ms N was irate and upset in her tone towards him. Ms J, a receptionist in the employ of his legal representative gave evidence to support this. This incident, the father argued, coloured Ms N’s perception and assessment of him, her reading of documents pertaining to the parties and even the observations of the interactions of him and the child.
The father sets out at paragraph 190 of his affidavit what he maintains are the errors identified by him in the Single Expert Report:
(a)The report notes that “[a]ll but one member of the mother’s extended family live in Tasmania” when the mother’s two aunts and uncles live in Sydney.
(b)He deposes that he did not punch the wall as reported but rather hit a door and fell onto the wall.
(c)He denies telling Ms N that the mother “bashed” him with a metal rake but rather that the mother “smashed [him] across the shins with a metal handled broom.”
(d)He disputes Ms N’s recollection of the delay in the commencement of his interview and that he inferred that she was “inept/incompetent/careless.”
(e)He contends that Ms N made “unfair and inaccurate assumptions” regarding the costs of travel to and from Tasmania.
(f)He highlights errors made in the reporting of his relationship with the mother including specific events such as holidays and access to finances.
THE MOTHER’S POSITION
The mother’s legal representative argued that Ms N’s report should be accepted in its entirety. It was argued that:
(a)The principles of Division 12A of the Act require the court and the parties to be child focussed in the conduct of the proceedings. Therefore a strict application of the rules of evidence, including the Makita principles is not appropriate in child related proceedings of this nature.
(b)The evidence of Ms M is important evidence because she has spent time with the mother on at least 30 occasions in therapy sessions dating back to 2015 for a major depressive disorder. On that basis, her evidence and her understanding of the mother must be given weight.
(c)Ms N and Ms M were witnesses who relied on clinical observations which is what they both did in forming their opinions.
(d)There was no clear and compelling evidence of actual bias and it is a serious allegation to level at a highly qualified expert witness.
(e)Rather than it being a basis for criticism of bias, the strong language used by Ms N is demonstrative of the clear and unequivocal conclusion she reached and given the issues in dispute, her evidence should not be disregarded.
(f)The factual errors identified by the father in Ms N’s report are limited in number and substance, and are argumentative in nature.
CONCLUSION
The evidence of Ms M and Dr O
Dr O is the psychiatrist who has treated the mother since 2015. She prepared a psychiatric report at the request of the mother in March 2020 and it was filed in affidavit form. She indicated that the information in her report was gathered across multiple interviews with the mother. The father objected to her report being provided to Ms N but provided no basis for his objection.
In preparing her report, Dr O confirmed that she had read the Expert Witness Code of Conduct and agreed to be bound by the code. She was not called to give evidence. Therefore, her report is untested.
The mother’s mental health is central to her application. The report was unsurprisingly of interest to Ms N who referred to its contents. It was also referred to by Ms M.
Ms M is a psychologist with almost 20 years of registration. She has been treating the mother since her referral in May 2015 for “major depressive disorder.” At the time of writing her report she had provided counselling to the mother on 30 occasions, sometimes in the company of the father.
She describes the focus of recent sessions being on “Ms Andrews anxiety in the context of having interface with Mr Nicholson and natural anxiety with legal proceedings and the uncertainty this brings.”[10]
[10] Affidavit of Ms M filed 11 May 2021, Annexure D (“Affidavit of Ms M”).
In her report she refers to having read the report of the mother’s treating psychiatrist, Dr O. Ms M conceded that she had no communication with Dr O or further updates on the mother’s prognosis and condition before she concluded her report.
The legal representative for the father and the ICL argued that little reliance should be placed on Ms M’s report, because she had not obtained an update from Dr O, and Dr O’s prognosis was untested. Ms M did not agree that this was necessary. She said she relied on her clinical judgment and her observations of the mother saying “I could have asked for that for consistency, but I trusted my professional opinion in the presentation that Ms Andrews had in front of me.”[11]
[11] Transcript dated 10 June 2021, p.328, lines 48-50.
I do not find that Ms M assumed the role of advocate rather than therapist for the mother. She has an extensive history of providing therapeutic treatment to the mother, she has had dealings with the father and she was entitled to form the view that the mother’s general mental health would improve by both her relocation to Tasmania and fewer unpleasant interactions with him. Disregarding, or placing little weight on her recommendation, her report was very useful in understanding the mother’s mental health both in terms of history, treatment and prognosis.
I do not place any weight on the recommendations or conclusions drawn by Dr O. The content however is relevant to provide a background to the mother’s mental health condition and a context to her application. While it is untested, the father was unable to satisfy me that there was anything contained in her report that would have unfairly prejudiced the father to the extent that reference to it would have “polluted” the reports of Ms N or Ms M.
The evidence of Ms N
The father expressed concern that Ms N went beyond her role by making conclusions drawn from the facts.
It is part of the report writer’s role to gather information from the parties, external sources and make observations in order to make recommendations about the impact of certain outcomes on the child. She is required to record what she has been told and matters she has considered in the course of writing her report. Counsel have appropriately challenged some of her assumptions. For example, on the issue of concluding that “the advantages [of the relocation] to Ms Andrews have been unambiguously established”, I accept that these are findings for the Court to make, and not Ms N. I will disregard the conclusion she drew on this issue. I do not however accept that her conclusions drawn have weaved their way through her report to such an extent that it causes the father prejudice.
I found that Ms N gave useful and honest evidence. She agreed with much of the evidence of Ms J. She conceded that when they spoke, she was annoyed and frustrated that the interviews had not commenced at the scheduled time. However, she also observed, “I…was taken aback by – by Mr Nicholson’s aggression towards me.”[12] She was frank about the impact that the father’s behaviour had on her as well as her frustration about the impact of it on the timing of the interviews.
[12] Transcript dated 9 June 2021, p.273 lines 31-32.
I accept that she did not form a positive view of the father. But this does not lead to a finding that she approached the interviews from a position of bias.
She was a credible witness and therefore I place weight on her oral and written evidence. Her evidence is useful on many levels, not least because she observed the father’s response to a situation that did not go to plan. Her observations of his response are consistent with the mother’s evidence.
Ms N made the following recommendations in her report:
(a)That the parties equally share parental responsibility for X.
(b)That X live with the mother.
(c)That the mother be able to relocate to Tasmania with X.
(d)That X spend time with the father as follows:
(i)on two weekends each month, once in Sydney and once in Hobart;
(ii)for one block period of five nights during the Tasmanian short school holidays;
(iii)for two separate and non-consecutive periods of five nights during the January school holidays with time increasing to seven nights from the end of the school holidays in 2021/2022; and
(iv)FaceTime calls each Wednesday and Saturday at times to be agreed by the parties.
X

It is important to consider X the child who is the subject of these proceedings.
X (aged 6) at the time of the trial was in Kindergarten at P School.
X plays sports, attends swim class and is learning to play an instrument.
The parties describe X as an outgoing, intelligent, playful, and affectionate child, with a good sense of humour.
Ms N’s report noted X “was confident, articulate and friendly”, and “bounced with energy.”[13]
[13] Single Expert Report, paragraph 100.
She observed that “X’s interactions with his mother indicated that he has a warm and loving relationship with her.”[14] During observations with his mother X “sought physical proximity (for cuddles and nuzzles) and he would then launch out to find another new toy before coming back to her.”[15]
[14] Single Expert Report, paragraph 101.
[15] Single Expert Report, paragraph 101.
Ms N observed X to have a loving relationship with his father. She noted that “X loves his father, enjoys his company and looks forward to spending time with him.”[16] However, during observations the father was “largely passive…and – at least up until the final few minutes – he seemed watchful and keener to critique X from a distance than to unreservedly play with him.”[17]
[16] Single Expert Report, paragraph 122.
[17] Single Expert Report, paragraph 122.
When it came time for X to be observed with his father, X reportedly said to his mother “Oh you can’t stay here Mummy, when Daddy comes.” When Ms N asked X why not he responded with “[b]ecause Daddy doesn’t like Mummy.”[18]
[18] Single Expert Report, paragraph 102.
At the conclusion of the observation, Ms N reported that she spent time negotiating an agreement between the parties as to which one should take X home. She states that “both [parents] were clearly tense, and X appeared quite discomforted at this point.”[19] After an agreement was reached X left with his father. Ms N observed X at this point as “anxious to get some separation between his two parents.”[20]
[19] Single Expert Report, paragraph 109.
[20] Single Expert Report, paragraph 109.
Ms N commented that it was “troubling that X felt he needed to control his parents not coming into contact with each other…and that he was so clear that his father does not like his mother.”[21]
[21] Single Expert Report, paragraph 117.
Ms N formed the view that the parties co-parenting relationship will be limited regardless of where each live and “X is likely to continue to be aware of the antipathy between them.”[22]
[22] Single Expert Report, paragraph 121.
THE LAW
The principles to be applied when determining competing parenting applications are set out in Part VII of the Act.
When making a parenting order, the Court must consider what is in the best interests of the child pursuant to section 60CA. This requires “the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.”[23]
[23] Murphy J in Harris & Caker [2010] FamCA 1046 at [48].
In deciding whether to make a particular parenting order I must consider the matters set out in s 60CC(2), being the primary considerations, and s 60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are 13 additional considerations which are set out in s 60CC(3). I will address those which are relevant.
In deciding what is in the best interests of the individual child the court is guided by s 61DA and s 65DAA, and, if the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
The High Court in MRR & GR (2010) 263 ALR 368 provides a pathway to be applied to parenting matters where an equal shared parental responsibility order has been made.
The Act does not treat relocation cases as a special category of parenting orders. In Morgan & Miles (2007) FLC 93-343, Boland J set out the core principles to be applied in relocation cases at [80]. Those core principles are:
(a)that the child’s best interests remain the paramount but not the sole consideration;
(b)that a parent wishing to move does not need to demonstrate compelling reasons;
(c)that a judicial officer must consider all proposals and may, himself or herself, be required to formulate proposals in the child’s best interests; and
(d)that the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.
The need to weigh and balance the child’s best interests with the right of the proposed relocating parent’s freedom of movement was summarised well by his Honour Kirby J in AMS & AIF (1999) 163 ALR 501 at 144 when he said:
…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
Relocation cases are inherently difficult because ultimately one party will feel aggrieved by the decision and feel that some of their fundamental rights are compromised. This is certainly the situation here for X’s parents.
The reasoning that will be applied in this case follows the authority of the Full Court in Collu & Rinaldo [2010] FamCAFC 53 and the pathways set out in MRR & GR (2010) 263 ALR 368. Accordingly, regard will now be had to the relevant considerations under s 60CC.
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents
In Mazorski & Albright (2007) 37 FamLR 518 at [26], Brown J concluded:
What these definitions convey is that “meaningful”, when used in the context of a “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”…A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective and not a strictly quantitative one.
Justice Kay in Godfrey & Sanders (2007) 208 FLR 287 at [36], spoke of the legislation promoting a “meaningful relationship, not an optimal relationship.”
In McCall & Clark (2009) FLC 93-405 at [117] the Full Court adopted the approach of Bennett J in G & C [2006] FamCA 994 saying the enquiry as to whether a relationship is meaningful is “a prospective one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage [to] a child.”
X enjoys a strong and loving bond with both parents. There is also no dispute that X has a meaningful relationship with the father, although he regards the mother as his primary attachment.
X’s time with the father was sporadic and irregular post separation. However, he has gradually built up the regularity and frequency of his time. The proposals by either party will not lead to a reduction of time between the father and X, but rather will maintain and promote their relationship.
The father is seeking that X remain in Sydney and that his time with X build up to an equal time arrangement. He therefore argues that should X move to Tasmania, his ability to maintain a meaningful relationship will be affected.
The mother argues that the orders she seeks will not detract from the relationship between X and his father being significant, important and of consequence.
I find that it is in the best interests of X for these meaningful relationships to be maintained and nurtured. I find that this is achievable whether X lives in NSW or Tasmania.
Need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
Any orders made must ensure that they protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The parties make competing allegations against each other that are relevant to this consideration.
Allegations made by the father
The father alleges that the mother was physically violent towards him on two occasions in 2001 or 2002.
(a)In one instance the father alleges the mother threw a knife at him that landed between his feet.
(b)In another instance the father alleges the mother grabbed a metal handled broom and hit him across the shin. The mother submitted that she hit the father with a broom in an attempt to stop him from spraying her with water from the garden hose.
(c)The mother admitted to the incidents, which both occurred approximately 20 years ago. She said “[i]n hindsight, I regret my actions. I have never acted in this manner again since this occurred. It is unlike me to act in this manner.”[24]
[24] Affidavit of Ms Andrews filed 10 May 2021, paragraph 85 (“Mother’s Affidavit”).
The father also alleges that the mother engaged in controlling behaviour towards him, particularly of a financial nature.
(a)In or around 20 December 2011 the father recalls the mother telling him to cancel his Bank Q account as it would be smarter to have all their money in their offset account. The father stated that he complied with this request as he was not in control of the finances.[25]
(b)When the father wished to purchase a new bicycle he alleges the mother stated “No, You don’t need it.” After continuing to ask, the mother allowed the father to purchase the bike and transferred the money to the bike shop directly as the father says that he was unable to transfer money.[26]
(c)The father states that he attempted to assist with household chores such as washing and cleaning. However, he would often find the mother repacking the dishwasher, refolding the clothes or telling him that he was not doing it right.[27]
(d)The father submits that in 2017 he stated to the mother “I hate my life.” The father recalls making the statement in relation to his inability to spend money without the mother’s permission.[28]
(e)After leaving the former matrimonial home in 2018, the father received a text message from the Commonwealth Bank of Australia advising him that his credit cards had been frozen. He alleges that the mother froze the cards.[29]
(f)In late 2018 the father’s card was declined when he attempted to purchase a coffee. He discovered that a $3.50 monthly limit had been placed on the card.[30]
(g)The father maintains that he had difficulty obtaining the necessary bank statements during the transfer of the parties’ properties. When he asked the mother for copies of the statements he alleges that she told him he would need to obtain them himself.[31]
[25] Affidavit of Mr Nicholson filed 6 May 2021, paragraph 33 (“Father’s Affidavit”).
[26] Father’s Affidavit, paragraphs 36 and 37.
[27] Father’s Affidavit, paragraph 50.
[28] Father’s Affidavit, paragraphs 55 and 56.
[29] Father’s Affidavit, paragraph 68.
[30] Father’s Affidavit, paragraph 72.
[31] Father’s Affidavit, paragraph 164.
The mother states that she was primarily responsible for managing the parties’ finances due to her qualifications in finance and accounting, and as the father spent significant periods away with the his employment. She argues that the father showed little interest in understanding or maintaining the finances. In October 2011, the father granted the mother a General Power of Attorney so she could purchase the former matrimonial home while he was away for work. The mother notes that during the course of the relationship the father purchased around six motor vehicles and six motorcycles.[32]
[32] Mother’s Affidavit, paragraph 84.
Allegations made by the mother
The mother alleges that the father engaged in acts of aggression and family violence during the relationship and in the presence of X.
(a)On 29 July 2018 the mother alleges that, while she was holding X on her waist, the father pushed his motorbike into her. X then grabbed the windshield of the motorbike and the father allegedly screamed to the mother “[i]f X breaks that, I’ll fucking break your nose.”[33] Under cross-examination the father stated that he did not recall saying this.
(b)On 12 September 2018 the mother was sitting on the father on the lounge when the father admitted he was still having an affair. The mother alleges that X began climbing on the parties and the father yelled at the mother “[i]f he hurts himself I’ll fucking hurt you.”[34] The father concedes that on this occasion he did threatened to break the mother’s nose.
(c)Later that evening the mother alleges that X witnessed the father barge pass her and knock her to the ground. She states that she ran to her neighbours after this incident as she was afraid of what the father would do.[35] Under cross-examination the father denied “barging” into the mother and causing her to drop to the ground as he attempted to leave the former matrimonial home.
(d)On 8 December 2018 the mother alleges that the father screamed and yelled at her after she questioned why X was not in an appropriate child restraint in his car. The father then allegedly took X out of his car and threw him into the mother’s car.[36]
(e)The mother alleges that the father made threats against X’s rabbit as a means of discipline. The mother submits that on 22 November 2018 the father told X “[i]f you don’t eat your dinner I’ll put the rabbit in the bin or break her neck.” On 12 December 2018 the father allegedly said to X “[i]’ll put the rabbit in the oven if you don’t sit down and eat your dinner.”[37] The father accepts that he made comments about X’s rabbit. He states that those comments were made out of frustration and were not intended to be malicious.
[33] Mother’s Affidavit, paragraph 68.
[34] Mother’s Affidavit, paragraph 69.
[35] Mother’s Affidavit, paragraph 70.
[36] Mother’s Affidavit, paragraph 72.
[37] Mother’s Affidavit, paragraph 73.
Notably the father says that since undertaking a parenting course he has become aware that such comments “may not be considered child friendly” and he has since changed the way he speaks to X.[38]
[38] Father’s Affidavit, paragraphs 251 and 252.
Ten months after the birth of X the mother expressed concerns about the father’s anger to her psychiatrist, Dr O.[39] She later spoke to Dr O about the incidents deposed of in her affidavit on the date of separation in September 2018. A report was also made to the police which corroborates the mother’s evidence of the event.
[39] Affidavit of Ms M, Annexure B.
The mother also alleges that the father’s behaviour, including his constant criticism of her is psychologically abusive. While the father does not accept this assertion, his affidavit contains at least 17 paragraphs containing criticisms of the mother. These include:
(a)The father conceded that the mother assisted him with his university studies but complains “she would raise the issue often…and belittle my achievements”[40] and that she gave him “ultimatums”[41] to spend less time at university.
[40] Father’s Affidavit, paragraph 8.
[41] Father’s Affidavit, paragraph 10.
(b)The father asserts that in 2002, when he was posted to a course for approximately four months and commuting back home every fortnight, the mother used this against him as she was completing her Honours year. The father stated that the parties were not intimate during this time and he felt he was being punished.[42]
[42] Father’s Affidavit, paragraphs 12, 13 and 14.
(c)The father states that in 2005 the mother threatened to leave him if he did not fly home when the ship he was on arrived in Adelaide. The father flew home from Adelaide and asserts that this decision impacted his career progression.[43]
(d)In early 2013, the father ceased his Saturday morning bike ride and coffee routine at a local café in an attempt to spend more intimate time with the mother. When he raised the idea of seeking professional help to address their lack of intimacy, the mother declined and commented that “[y]our sweat and semen disgusts me. This is why we are not intimate.”[44]
(e)When the mother commenced playing sports on weekends the father states he would be left at home with a motorcycle for transport.[45]
(f)The father alleges that the mother constantly criticised him while driving to the point where he refused to drive when they were both travelling in the car.[46]
(g)The father stated that the mother’s “continuous control, berating and no acknowledgement of the contribution” he made to the matrimonial home caused him to lose interest in his DIY pursuits.[47]
(h)The father states that the mother refused to provide details of X’s sporting activities to him when requested.[48]
(i)The father alleges that the mother does not encourage his FaceTime/telephone time with X. He states that he has requested the mother to switch off technology and minimise distractions during this time with X but she has not done so.[49]
(j)The father submitted that he attempted to enrol in a face to face anger management course but it coincided with his time with X on Tuesday nights. He complains that as the mother would not agree to change his time with X and due to the limited availability of face to face courses he instead completed an online course.[50]
(k)The father alleges that it was not uncommon for the mother to make unilateral decisions about X without informing him.[51]
(l)The father contends that the mother is often not alert to protecting X from physical harm. He recalls an occasion where the parties were having lunch and the mother left X’s side to attend to the parties’ dogs. X stood up and fell out of his high chair, hitting his head on the ground. The father states that he was too far away to prevent the incident from occurring. On another occasion, the father says he “admonished” X not to play on the bench seat at the museum. The mother was standing near X when he fell backwards from the bench onto the floor.[52]
[43] Father’s Affidavit, paragraphs 24 and 25.
[44] Father’s Affidavit, paragraphs 39 to 43.
[45] Father’s Affidavit, paragraphs 46 and 47.
[46] Father’s Affidavit, paragraph 52.
[47] Father’s Affidavit, paragraph 58.
[48] Father’s Affidavit, paragraph 96.
[49] Father’s Affidavit, paragraph 135.
[50] Father’s Affidavit, paragraph 202.
[51] Father’s Affidavit, paragraph 227.
[52] Father’s Affidavit, paragraphs 230 and 231.
The father’s propensity to make critical comments about the mother or blame her for events was observed by Ms N and by the Court.[53]
[53] Single Expert Report, paragraph 25.
The mother alleges that she suffers from anxiety and her levels of anxiety are heightened by her dealings with the father.
The mother’s level of anxiety in close proximity to the father was clearly observed during the hearing. Ms N observed something similar under cross-examination saying “Ms Andrews …When I saw her that day in my office, she was almost frozen with anxiety about the fact that the father was there and so close, and it wasn’t just going to be a fleeting thing.”[54]
[54] Transcript dated 9 June 2021, p.286 lines 36 -38.
The mother alleges that her anxiety has been further heightened because the father has “stalked her” and has engaged in controlling behaviour as recently as some months prior to the hearing.
(a)She alleges that on 12 March 2020 and again on 11 February 2021 the father followed her on his motorbike. She states that she recognised his number plate.[55]
(b)She alleges that on 13 August 2020 the father entered her home without her permission and subsequently noticed tools missing from the garage that the father had asked for. The mother’s neighbours told the mother that they “saw Mr Nicholson parked in a driveway in [the] street whilst you weren’t home.”[56]
(c)She states that on 5 May 2021 she received a text message from the father saying “[a]nd how was sports this morning? Was is raining on the water?” She contends that she had not told the father she had begun sports again.[57] His evidence on this issue under cross-examination was puzzling. He justified his text message to the mother on the basis that he was concerned that she might get wet during sports. He then gave evidence that X had mentioned that his neighbour babysat him on Wednesday morning and then he happened to see the mother’s car parked in a sports club when he was riding past on his bike. He admitted that it was unusual for him to exchange messages of that nature with the mother.
(d)It is noted at this point that the mother has well documented anxiety issues that are triggered by coming into physical contact with the father. These difficulties are set out in her affidavit where she reports being “panicky” and “shaking” and “physically ill” at the prospect of coming into direct contact with the father.[58] Under cross-examination the father accepted that his physical presence has an impact on the mother.
[55] Mother’s Affidavit, paragraph 91.
[56] Mother’s Affidavit, paragraph 92.
[57] Mother’s Affidavit, paragraph 97.
[58] Mother’s affidavit at paragraphs 94 to 97

The mother alleges that the father has exposed X to their conflict.
(a)The mother states that X has made comments to her such as “Daddy hates you”[59], “Daddy was hitting Mummy”[60] and “Dad said I can’t move to Tasmania and I need to stay in Sydney…”[61]
(b)Ms N also observed that X was acutely aware of the antipathy between the parents, as outlined earlier. She labelled the conflict with video calls between X and the father as “troubling”.[62] She concluded “it begs the question as to what extent Mr Nicholson is cognisant of the need to protect X, from adult conflict.”[63]
(c)The father did not address these allegations in his affidavit material but under cross-examination denied that he had communicated his dislike for the mother to X.
(d)When asked what steps he would take to improve this aspect of their parenting, he said he was “going to” work on improving it but ultimately laid responsibility for the difficulties on the mother due to “the significant control exerted over me”[64] and because “access to my son that is limited severely. Depends on me having to, you know, suck it up and deal with it”.[65] He was given another opportunity to tell the Court how he might promote the relationship between X and the mother at the end of giving his evidence:
[HER HONOUR]: Are there things you think you could do with X to improve his perception of your relationship with his mother?
[THE FATHER]: Perception of the relationship. I’m guessing so. Our only interaction is during the handover exchange, so working forwards and working through that, you know, would be, you know, one vital thing to say that I don’t – you know, I’m not angry at her, I’m not showing hatred. I can’t say that I love her anymore, but I certainly – you know, those sort of interactions would be the only case where – like, he doesn’t see text messages, he doesn’t, so – not text messages, WhatsApp messages. You know, I’ve never expressed those things anyway, so I don’t – that’s about the only way I can think of, other than saying that, you know – and I don’t want to brainwash him, like I – just in general. And it’s – that has got to only be those handover times.[66]
(e)The response perhaps indicates the father’s inability to provide any meaningful solutions to a problem that poses significant potential to harm X.
[59] Mother’s Affidavit, paragraph 66.
[60] Mother’s Affidavit, paragraph 76.
[61] Mother’s Affidavit, paragraph 82.
[62] Single Expert Report, paragraph 123.
[63] Single Expert Report, paragraph 123.
[64] Transcript dated 7 June 2021, p.66 lines 37-38.
[65] Transcript dated 7 June 2021, p.66 lines 38-39.
[66] Transcript dated 8 June 2021, p.145 lines 36-46.
The mother is concerned that the father exhibits what she describes as “angry behaviour”, often publicly and in X’s presence.
(a)The mother alleges that X has commented to her that “daddy was ‘so angry’ and that he ‘couldn’t love daddy as daddy was so angry’”.[67]
(b)On 18 December 2018 the mother received a call about an incident at X’s swimming school. The father sent a text message to the mother about the incident stating “I had words to the stupid Indian woman. Her kid is a shit and disrupts the lesson continuously, I don’t know. Probably because the filthy Indian went and complained.”[68] X was present during the incident.
(c)Ms N who observed the father’s response to the late start of the individual interviews for her report corroborated the mother’s concerns. [69]
[67] Mother’s Affidavit, paragraph 77.
[68] Mother’s Affidavit, paragraph 79.
[69] Single Expert Report, paragraph 23.
A further concern for the mother is that the father has failed to engage with any mental health professionals or other services to address or improve “anger management” issues, despite the Court making such an Order on 23 September 2019.
(a)The mother notes that the Interim Consent Orders made on 23 September 2019 require the father to attend both an anger management and Circle of Security course in person with a certificate of completion to be provided. The mother submits that she has not received a certificate of completion for an anger management course and is unsure whether the father has completed such course.
(b)The father emailed the mother shortly before separation in 2018 and admitted that he had anger issues that cause him to raise his voice. He ended the email with the words “I am constantly bubbling away… I have stress, I have PTSD, I have depression.”[70] He explained that it was a stressful time for him and that he has since taken courses and met with a registered psychologist, Ms R (“Ms R”). Under cross-examination about this email he said that he was “constantly bullied and harassed whilst I was at work” by the mother and that he “blame[d] her for the email [he] wrote.”[71]
[70] Exhibit STMI p.196.
[71] Transcript dated 8 June 2021, p.119 lines 20-24.
(c)On 14 November and 21 November 2019 the father consulted with Ms R. She recorded that his stated reasons for consultation were:
He claimed his former wife believes he has a problem with anger management. He disputes this claim. He hastened to add that since his marital separation in January 2019 he has not experienced problematic anger expression. He acknowledged some frustration associated with his former wife. However during his second consultation he informed me he would like to work towards frustration management to reduce the likelihood of bringing pre-existing frustration into future relationships.[72]
[72] Exhibit STMI p.196.
(d)Ms R recommended 10 treatment interventions including:
Cognitive behaviour therapy to assist with understanding unhelpful behaviour, Cognitive Restructuring to address and deconstruct pre-existing unhelpful thinking, Solution-Focused Therapeutic approaches which will assist in increasing empowerment…Controlled breathing…to address continuing anxiety and stress management, and Mindfulness techniques to assist with troublesome emotions management.[73]
(e)The father reported to Ms N that he saw Ms R to “see if I had an anger management problem or an ex-wife problem. And it was the latter.”[74] Under cross-examination the father stated that he “went and saw Ms R because [he] was directed to by this Court to go and attend an anger management course which [he] was unable to attend, and in lieu of attending that, [he] saw a psychologist.”[75]
(f)The father states that he and his lawyers attempted to enrol him in an anger management course but could not do so as they were either full or not continuing.
(g)On 30 April 2021 at 7.32 am the father completed an on-line psychoeducational course on “Impulsive, Destructive and Explosive Management” and “Psychology of self-control” offered by impulsivity.com.au
(h)The father blames the mother for his failure to complete an anger management course. He says his chosen course, which was to commence on 11 February 2020, coincided with his Tuesday time with X. The suggestion was that as the mother would not change his time with X to another evening, she was preventing him from complying with the court orders.
(i)Under cross-examination the mother agreed that she did not facilitate the father attending the program he had proposed by changing the night he spent with X.
(j)Under cross-examination the father confirmed that he does not believe that he has anger issues.
[73] Exhibit STMI p.173.
[74] Single Expert Report, paragraph 38.
[75] Transcript dated 7 June 2021, p.33 lines 11-14.
Conclusion on allegations of risk
Neither party argued that there was an unacceptable risk of harm for X in the care of either parent. The mother though maintains her concerns that X will continue to be exposed by the father to their conflict. She also maintains her concern that the father has unaddressed anger management issues which have the potential to impact X if this occurs in his presence.
I do not find that the mother engaged in family violence during the relationship. Nor do I find that her behaviour towards the father was controlling in nature. It is entirely normal in relationships for each party to take responsibility for an aspect of their life be that managing the finances, the domestic responsibilities, the garden or otherwise. Simply because the mother (who has professional qualifications as a finance professional) had primary responsibility for the financial affairs of the household does not demonstrate controlling behaviour.
The father has alleged a fear of the mother. He articulated this concern throughout his cross-examination. For example he said “I have no trust that whatever happens would be construed in a way that is truthful.”[76] I find that his fear of the mother did not arise from or because of controlling behaviour on her part, but rather his (understandable) anxiety about the court proceedings and the risk that his behaviour, or exposure to direct contact with the mother, might jeopardise his success in these proceedings.
[76] Transcript dated 7 June 2021, p.69 lines 37-38.
I find that there were occasional acts of physical and verbal violence by the father during the relationship and there was an act of physical violence at the time of separation but it was not a feature of the relationship and does not present an ongoing risk of harm to X.
I am concerned by the father’s conduct towards the mother and X following separation. Particularly the mother’s allegations that the father followed and/or stalked her on several occasions two to three years after separation, which caused her to feel anxious. The recent allegation made by the mother about the father gaining knowledge about her sports activities concerned me because:
(a)This incident took place less that one month before the final hearing and three years after the parties separated. The mother’s account of the incident is consistent with other unexplained and coincidental encounters she alleges she has had with the father post separation on 12 March 2020 and 11 February 2021.
(b)In his affidavit he indicated that on 28 April 2021 he went to the mother’s home at 5.20 am to “drop off a lunchbox” X had left at his house the day before. He did not message the mother in advance about this or give her notice that he would be doing so. He says that at 5.30 am, presumably on his bicycle, he was able to observe that the mother’s car was not there.
(c)Sydney is a large city with many sports centres located between the parent’s residences. The S Sports Club is around 13 kilometres away. The sports centre was “off course” for the father but he said co-incidentally on this day he took a different route due to “road works.”
(d)Even if the father had co-incidentally seen the mother’s car in the carpark as he cycled by at speed, he gave no plausible explanation for why he saw it necessary to send her a text message about it. They were not in the habit of exchanging messages of a personal nature. His suggestion that it was sent “out of concern” because she might be getting wet in the water was ridiculous.
(e)He acknowledged that he was upset that the mother had taken up an activity that required another adult to supervise X when he was available to do so. However, in his own account of the incident this was not cited as a reason for sending the message.
(f)The father was aware of the anxiety that the mother says she experiences from contact with him. The father was aware of the mother’s previous complaints that he “stalked her.” He must have foreseen that she would not respond well to his message. Yet he was unable to regulate his response, in circumstances where he would have had an awareness of the impact of the message on her anxiety.
It is well accepted that domestic and family violence behaviours that involve a person following, harassing or monitoring the victim are forms of stalking designed to deprive the victim of privacy, autonomy and a sense of safety.[77] The father’s use of the information gained from his “accidental encounter” with the mother’s car at a sports centre, is a form of intimidation and control, whether he intended it to be or not. Importantly, it needs to be viewed in the context of the mother’s mental health condition and her likely response.
[77] See National Domestic and Family Violence Benchbook.
Whether the father’s conduct is labelled coercive and controlling conduct or not, a key component of the father’s behaviour is the pattern of unexplained appearances, at the mother’s home or when she was out, which induced in her a fear. The father admitted that he was aware that this would be a consequence of his behaviour, yet he chose to persist. Ms N was taken to paragraphs 92 through to 97 of the mother’s affidavit where the mother set out a range of unplanned interactions and sightings of the father. She observed:
I think those paragraphs indicate that the mother – where the contact with the father is planned and anticipated and is as part of orders or part of a structure, she’s fine. But those paragraphs, to me, indicate that she is still at that sort of – that hyperalert phase of her anxiety. Again, not necessarily that the father is doing anything, you know, with intent…to cause her anxiety or to cause her harm, but she’s responding to it as if – as if he is …if that is happening on a regular basis, then certainly being, you know, two hours – a two-hour 30 flight away removes that anxiety altogether and – and I think – given what I understand of the mother’s mental health, I think that would be of benefit to her.[78]
[78] Transcript dated 9 June 2021, p.287 lines 21-31.
Nothing the father did or said at the hearing left me satisfied that he will not continue to monitor the movements of the mother or X in the future and be critical of their decisions and conduct. Any orders made will need to consider how this risk can best be mitigated.
I find that the father has exposed X to the conflict between the parties. I also find that in all likelihood this behaviour will continue as the father was unable to accept any responsibility for the conduct or the impact it might have on X. Nor was the father able to offer any coherent strategies for how he might improve his relationship with the mother.
I find that the father has difficulties regulating his emotions and anger and that he did not display good insight into the impact of this on his family. A good example of this was his evidence about the threats he made to harm X’s pet rabbit by putting it in the oven and breaking its neck. In cross-examination the father said he was “merely frustrated.”[79] He demonstrated a lack of insight into the impact of his threat on X when it was put to him by counsel for the mother:[80]
[COUNSEL FOR THE MOTHER]: …does the simple fact not occur to you that your threat to kill your three year old child’s pet would have frightened the daylight out of him?
[THE FATHER]: No.
[79] Transcript dated 7 June 2021, p.52 line 42.
[80] Transcript dated 7 June 2021, p.50 lines 37-38.
I accept that the father had no intention of harming X when he spoke the words he did about his pet rabbit. I accept too that he is a man brought up in the country, and it did not occur to him that such a comment might be viewed critically.
The swimming pool incident and Ms N’s observations of the father’s response to the family report interviews provide other examples of his failure to regulate his behaviour appropriately.
Ultimately when viewed together these examples highlight the benefit that might come from counselling or therapy to address his interpersonal skills and responses as Ms R had suggested. I do not accept the father’s evidence that Ms R confirmed that he did not need assistance. Her report clearly makes recommendations for a range of treatment interventions. He did not take responsibility for the impact of his behaviour on those around him or the need for any self-improvement on his part. He ignored the recommendations of a registered psychologist and instead chose to blame the mother for his failure to complete a program. He also failed to take responsibility by labelling the issue an “ex-wife issue.” And as already outlined, in all of the incidents that were raised, he always attributed blame to another person. As a result, there is a risk that X will continue to be exposed to acts of anger and volatile outbursts whilst in his care and any orders made will need to consider how this risk can best be mitigated.
ADDITIONAL CONSIDERATIONS
Nature of the relationship of the child with each of the child’s parents and other persons
Ms N observed that X enjoys a close and loving relationship with his mother, which is unsurprising as she is his primary attachment figure.
The father’s relationship with X is also a close and loving one. Since September 2019 the father has been an active participant in X’s life and he and X look forward to their time together.
The father’s hostility towards the mother and inability to regulate his emotions, in X’s presence, is of concern. The father’s tendency to focus on his grievances with the mother and his “entitlements” as a father (evidenced by his application for an equal time arrangement) are not child focussed. Some of the potential direct impacts on X are that he may not be an appropriate role model and X may grow to fear him or worse, that X is turned against the mother. I am relieved that none of the evidence to date has suggested that these possibilities have been realised.
X is fortunate to have an extended family who love him and would like to continue to have him in their lives.
The maternal grandparents live in Hobart. The maternal grandfather gave evidence that they have had an active involvement in X’s life and will support the mother and X in the event of their relocation. The mother’s brother Mr L lives in City T with his family. He gave evidence and he impressed as a person who would also provide great support to the mother and X.
The mother also has family in Sydney including her sister who supported her at the hearing.
Under cross-examination the maternal grandfather and uncle were tested on their views about the father and the mother’s express views about the father, and could not be criticised. The Court is confident that the maternal family will not act to undermine the father’s relationship with X.
The paternal grandparents live in Town U in the Region V area of New South Wales. It is about six hours from Sydney. The paternal grandmother gave evidence about her involvement with X until the date of separation and her regular trips to Sydney to support the parties. She shared a close relationship with the mother until the relationship became more distant arising from events post separation. The paternal grandmother wishes to continue to enjoy a close relationship with X and is concerned that she may not be able to do so if he lives in Tasmania.
The father also has siblings in Sydney and Canberra who X is reported to enjoy a close relationship with.
The mother after separation donated eggs to the wife of the father’s brother. Ultimately, this enabled the sister-in-law to give birth to a baby daughter. Of this, Ms N observed:
…this was an extraordinarily generous gesture on Ms Andrews part. She reported maintaining a positive and active involvement with the paternal extended family (other than the paternal grandmother) and this augurs well for X’s continuing connectedness to the paternal side of his family.[81]
[81] Single Expert Report, paragraph 119.
The mother acknowledged the positive relationships that X has with his paternal family. The Court is confident that she will continue to be proactive in encouraging and maintaining relationships with his paternal family regardless of which state she lives in.
Extent to which each of the child’s parents has taken or failed to take the opportunities to participate in making decisions to spend time with and to communicate with the child

c.During term 1, 2 and 3 school holiday time, for one block period of seven (7) nights by agreement but failing agreement from the first Saturday after school concludes until 5pm the following Saturday.
d.During the January school holiday time, for two separate non-consecutive periods:
i.In 2021, from 1.00pm on the 23rd of December for seven (7) nights and another seven (7) night period by agreement. Failing agreement from 1pm 10 January until 3pm on 17 January.
ii.in 2022 and each alternate year thereafter, from 1.00pm on the 29th of December for 12 nights and another 12 night period by agreement. Failing agreement from 1pm on 15 January until 3pm on 27 January.
iii.In 2023 and each alternate year thereafter, from 1.00pm on the 23rd of December for 12 nights and another 12 night period by agreement. Failing agreement from 1pm 13 January until 3pm on 25 January.

e.For these particular periods of time spent with the father, the mother shall deliver the child to the father at the agreed location, failing agreement at Sydney Domestic Airport, at 1.00pm on the specified day and the father shall return the child to the agreed location, failing agreement at Sydney Domestic Airport at 3.00pm on the specified day, and dependent upon the reasonably available flights.
f.That if changeover does not occur at school in Tasmania, then changeover is to occur at the front of the Hobart domestic airport or such other location as agreed between the parties in writing.

8.That for the purposes of travel costs:
a.The cost of the child’s airfares be shared equally between the parties with the mother to make travel arrangements and advise the father of cost of the airfares and the amount to be reimbursed to the mother. Reimbursement of the costs is to be made within 14 days of the request being made by the mother to the father.
b.The costs of the father’s travel shall be borne solely by the father.
c.The costs of the mother’s travel shall be borne solely by the mother.
d.The costs of the mother’s nominee or delegate be borne solely by the mother.

9.At other times as agreed between the parties.
10.That on the Mother’s Day weekend the father’s time with the child shall be suspended.
11.If the father decides to live in Tasmania, then instead of the spend time arrangements set out above the child shall spend time with the father as follows:-
a.During school term time, pursuant to a fortnightly cycle as follows:
i.In week 1, from Tuesday from after school until before school Wednesday. The father is to collect the child from after school on this Tuesday and deliver the child before school commences on this Wednesday.
ii.In week 2, from after school on Friday until the commencement of school on Monday or Tuesday if the Monday selected is a public holiday or a pupil free day. The father is to collect the child from school on Fridays and deliver the child to school on Mondays or Tuesdays in the case of the Monday being a public holiday or pupil free day.

b.During term 1, 2 and 3 school holiday time, for one block period of seven (7) nights by agreement but failing agreement from 9am the first Saturday after school concludes until 5pm the following Saturday:
c.During the January school holiday time, for two separate non-consecutive periods:
i.In 2021, from 1.00pm on the 23rd of December for seven (7) nights and another seven (7) night period by agreement. Failing agreement from 1pm 10 January until 3pm on 17 January.
ii.in 2022 and each alternate year thereafter, from 1pm on the 29th of December for 10 nights and another 10 night period by agreement. Failing agreement from 1pm on 15 January until 1pm on 25 January.
iii.In 2023 and each alternate year thereafter, from 1pm on the 23rd of December for 10 nights and another 10 night period by agreement. Failing agreement from 1pm 13 January until 1pm on 23 January.

d.That changeover shall be as follows:
i.If the time coincides with time that child is at school, then at the school;
ii.Otherwise;

a. The mother shall deliver the child to the father’s home at the commencement of his time with the child; and
b. The father shall return the child to the mother’s home at the conclusion of his time with the child.

12.If the mother is not permitted to relocate to Tasmania, the child shall spend time with the father as follows:-
a.During school term time, pursuant to a fortnightly cycle as follows:
i.In week 1, from Tuesday from after school until before school Wednesday. The father is to collect the child from after school on this Tuesday and deliver the child before school commences on this Wednesday.
ii.In week 2, from after school on Friday until the commencement of school on Monday or Tuesday if the Monday selected is a public holiday or a pupil free day. The father is to collect the child from school on Fridays and deliver the child to school on Mondays or Tuesdays in the case of the Monday being a public holiday or pupil free day.

b.During term 1, 2 and 3 school holiday time, for one block period of seven (7) nights by agreement but failing agreement from 9am the first Saturday after school concludes until 5pm the following Saturday.
c.During the January school holiday time, for two separate non-consecutive periods:
i.In 2021, from 1.00pm on the 23rd of December for seven (7) nights and another seven (7) night period by agreement. Failing agreement from 1pm on 10 January until 1pm on 17 January.
ii.in 2022 and each alternate year thereafter, from 1.00pm on the 29th of December for 10 nights and another 10 night period by agreement. Failing agreement from 1pm on 15 January until 1pm on 25 January.
iii.In 2023 and each alternate year thereafter, from 1.00pm on the 23rd of December for 10 nights and another 10 night period by agreement. Failing agreement from 1pm 13 January until 1pm on 23 January.

d.That changeover shall be as follows:
i.If the time coincides with time that child is at school, then at the school;
ii.Otherwise;

a. The mother shall deliver the child to the father’s home at the commencement of his time with the child; and
b. The father shall return the child to the mother’s home at the conclusion of his time with the child.

13.That where the time arrangements with the father require flights to occur,
a.The father shall provide notice two months notice of the second weekend of time with the child pursuant to Order 7b.
b.The parties shall allow for one to two hour difference in the commencement or conclusion of time, to allow for flight schedule and possible flight delays and the parties shall keep one another informed as to same.
c.That within seven (7) days of such time occurring, the parties shall provide the relevant flight itinerary to the other party.

14.That the mother be at liberty to have a delegate or nominee attend changeover and/or travel interstate with the child and that the child shall be able to travel as an unaccompanied minor when he reaches high school, or such earlier time as agreed between the parties in writing.
15.That if the parties are residing within the same city, on the child’s birthday and the party’s birthdays as follows:
a.if the child is in the care of the Father, the Mother is to spend time with the child for two hours on that day at a time agreed between the parties and failing agreement from 5.00pm until 7.00pm;
b.if the child is in the care of the Mother, the Father is to spend time with the child for two hours on that day at a time agreed between the parties and failing agreement from 5.00pm until 7.00pm;
c.The child shall spend time with the Mother on the Mother’s birthday, for a period of at least 2 (two) hours, if the child is not spending time with the Mother.
d.The child shall spend time with the Father on the Father’s birthday, for a period of at least 2 (two) hours, if the child is not spending time with the Father.

16.The child communicate with the non-resident parent via telephone/video call:-
a.at least two times a week on days and times to be agreed by the parties;
b.on their birthdays at 5.00pm with the non-resident parent to initiate the call and the other parent to facilitate the call;
c.on Christmas Day at 10.00am with the non-resident parent to initiate the call and the other parent to facilitate the call;
d.on Easter Sunday at 10.00am with the non-resident parent to initiate the call and the other parent to facilitate the call;
e.on Father’s Day, if the child is not already spending time with the father (and the father shall be entitled to change a weekend time to ensure that the child is with him on that weekend), at 10.00am with the mother to initiate the call;
f.on the father’s birthday at 5.00pm with the mother to initiate the call; and
g.on the mother’s birthday at 5.00pm with the father to initiate the call.

17.That neither parent shall threaten, harass, abuse, assault or denigrate the other parent or members of their family, nor allow the child to remain in the presence or hearing or a third party who is threatening, harassing, abusing, assaulting or denigrating the other parent or members of their family.
18.If the child is involved in any medical emergency the parent who has care of the child shall notify the other parent as soon as reasonably practicable.
19.That each party shall ensure the other party is kept informed as soon as is reasonably practicable of:
a.Any medical problems or illness suffered by the child whilst in their care;
b.Any medication that has been prescribed or otherwise given for the child;
c.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
d.Any social, school or religious functions which the child is to attend;
e.The telephone contact number, residential address and email address of either party; and
f.Any other matter relevant to the welfare of the child.

20.That each party is at liberty to attend at the child’s school and sporting and extra curricular events for the purposes of any function or activity normally attended by parents.
21.That each of the parents shall authorise and direct any medical practitioner, psychologist, counsellor or therapist who has consulted with or treated the child to provide both parents with any and all information.
22.That each of the parents is restrained from requesting or directing the child to convey any information or request to the other parent and shall unless in the case of an emergency communicate with the other parent by way of What’s App messaging service

(As per the original)

ANNEXURE C
Minute of Orders Sought by the Independent Children’s Lawyer
Parenting Responsibility
1.That the parent/parties shall have Equal Shared Parental Responsibility for the Child, X born in 2015 (the Child).

Live with
2.That the Child shall live with the Respondent Mother (“Mother”), whereupon the Child’s residence shall be within the Sydney Metropolitan area

School Term – Spend Time
3.That the Child shall spend time with the Applicant Father (“Father”) during school term as follows:
a.For the first three months from the date of these Orders:
Each alternate weekend from Friday after school or 3:00pm until Sunday at 5:00pm.
b.Thereafter for the next three months
Each alternate weekend from Friday after school or 3:00pm until Monday before school or 9:00am.
c.Thereafter from six months from the date of these Orders:
i.Each alternative weekend from after school Friday or 3:00pm until before school Monday at 9:00am.
ii.In the intervening week after school Tuesday or 3:00pm until before school Wednesday at 9:00am

d.On the Father’s Day weekend, each year from after day care and/or school Friday until Monday before school (or 9am);

4.That Order 3 be suspended on the following special occasions when the Child is spending time with the Mother:- on the Mother’s Day weekend each year from Friday after school (or 5pm) until Monday before school (or 9am).

School Holidays Spend Time
5.That the Child shall spend time with the Father during school holiday periods as follows:
a.During the shorter April, July, and September/October school holidays for eight (8) nights from the last Friday of the proceedings School Term immediately prior to the commencement of the school holidays, and concluding on the second Saturday of such school holidays at 5pm
b.During the summer December/January school holidays
i.For the 2021/22 school holidays,

1.from 1pm on 23 December 2021 until 3pm on 31 December 2021 for eight successive nights, and;
2.from 1pm on 10 January 2022 until 3pm on 18 January 2022 for eight successive nights.
ii.For the 2022/23 school holidays, and each alternate summer school holidays thereafter: from 1pm on 27 December 2022 until 3pm on 17 January 2023 for twenty-one successive nights.
iii.For the 2023/24 school holidays, and each alternate summer school holidays thereafter: from 1pm on 23 December 2022 until 3pm on 13 January 2023 for twenty-one successive nights.

Changeover
6.If the changeover occurs at school, the parent who is to spend time with the Child is to collect and drop off the Child to and from school.
7.If the changeover does not occur at school the parent who is to spend time with the Child shall collect the Child from the other parent’s residence at the commencement of their time, with the parent dropping off the Child to remain outside of the residence.

Telephone and FaceTime Orders
8.That each parent shall be permitted to contact the Child by telephone or FaceTime at all reasonable times, and the other parent shall use their best endeavours to facilitate the telephone or FaceTime call including keeping their phone charged.
9.For the purposes of Order 8, the parent who the Child is living with or spending time with shall use their best endeavours to remove any multimedia or other distractions during the telephone or FaceTime call.

Information Orders
10.That each party shall promptly inform the other of any serious illness or injury suffered by the Child whilst in the care of the party, or any attendance upon a medical professional for serious illness/injury, including providing particulars of any treatment given or medication prescribed to the Child.
11.That each party shall provide to the other with their current email address, telephone number and address within seven days from the date of these Orders, and keep each other informed within 48 hours of any change to their current email address, telephone number and address.
12.That each party shall authorise the Child’s school to provide to the other party copies of all notices, newsletter and letters as mainly forwarded by the school from time to time.

Attendance of Child’s School events
13.That each of the parties shall be permitted to attend at the Child’s school at all times at which parents are permitted to attend, including events such as school sports days, parent-teacher interviews and alike or at any extracurricular activity which the Child participates in.

Miscellaneous
14.Each party shall be and hereby are restrained from doing or saying anything derogatory in the hearing or presence of the Child regarding the other party or detrimental to the relationship each party each has with the Child.

Costs
15.Each party pay the costs of the Independent Children’s Lawyer.

(As per the original)

ANNEXURE D
FINAL ORDERS
1.All previous orders are discharged except for Order 6 to 9 of the Orders made on 10 June 2021 which will remain in place until the mother departs for Tasmania with X.

Parental Responsibility
2.The parties shall have equal shared parental responsibility for the child, X born in 2015 (hereinafter “the child”).
3.The mother shall have responsibility for making decisions for the day to day care of the child when the child is in her care.
4.The father shall have responsibility for making decisions for the day to day care of the child when the child is in his care.

Live with
5.The child shall live with the mother and the mother be and is permitted to relocate the child to live in Tasmania.

Spend time with
6.Unless otherwise agreed in writing by the parties, the child shall spend time with the father following the mother’s move to Tasmania as follows:
(a)During school term time, on the first weekend of each month in Sydney from Friday evening until 5.00 pm on Sunday or 5.00 pm Monday if the Monday selected is a public holiday or a pupil free day. With changeovers to take place at an agreed location and failing agreement at Sydney Domestic Airport.
(b)On one further occasion each month in Tasmania, provided it is not a month during which the Tasmanian school holidays fall, from after school on Friday until 5.00 pm on Sunday and such time shall not occur on a consecutive weekend to the time provided for in Order 6(a).
(c)The father be permitted to extend the time in Order 6(b) on one occasion each school term so that it commences after school Thursday until before school Tuesday provided he provides the mother with 21 days’ notice in writing.
(d)During term 1, 2 and 3 Tasmanian school holiday periods, for one block period of seven (7) nights by agreement but failing agreement from the first Saturday after school concludes until 5.00 pm the following Saturday.
(e)During the January Tasmanian school holiday period, for two separate non-consecutive periods:
(i)In 2022 and each alternate year thereafter, from 1.00 pm on the 29th of December for 12 nights and another 12 night period by agreement. Failing agreement from 1.00 pm on 15 January until 3.00 pm on 27 January.
(ii)In 2023 and each alternate year thereafter, from 1.00 pm on the 23rd of December for 12 nights and another 12 night period by agreement. Failing agreement from 1.00 pm 13 January until 3.00 pm on 25 January.

(f)For the periods of time spent with the father during school holiday periods, the mother shall deliver the child to the father at the agreed location, and failing agreement at Sydney Domestic Airport, at 1.00 pm on the specified day and the father shall return the child to the agreed location, and failing agreement at Sydney Domestic Airport at 3.00 pm on the specified day and dependent upon the reasonably available flights.
(g)If changeover does not occur at school in Tasmania, then changeover is to occur at the front of the airport terminal in Tasmania or such other location as agreed between the parties in writing.
(h)Between 1 October and 1 December each year, the parties will agree upon the schedule of visits for the child in the following year commencing 1 January. The agreed schedule will include the dates of travel, preferred flight and person booking flights. The schedule will not be varied unless with the consent of both parties.
(i)At other times as agreed between the parties.

7.If the parties are residing within the same city, on the child’s birthday and the party’s birthdays as follows:
(a)If the child is in the care of the father, the mother is to spend time with the child for two (2) hours on that day at a time agreed between the parties and failing agreement from 5.00 pm until 7.00 pm.

(b)If the child is in the care of the mother, the father is to spend time with the child for two (2) hours on that day at a time agreed between the parties and failing agreement from 5.00 pm until 7.00 pm.
(c)The child shall spend time with the mother on the mother’s birthday, for a period of at least two (2) hours, if the child is not spending time with the mother.
(d)The child shall spend time with the father on the Father’s birthday, for a period of at least two (2) hours, if the child is not spending time with the father.

8.The mother will use her best endeavours to facilitate the child spending time with paternal family members in the event that they visit Tasmania, including facilitating their attendance at any extracurricular and school activities in which the child is engaged.
9.Where the time arrangements with the father require flights to occur:
(a)The father shall provide two (2) months’ notice of the second weekend of time with the child pursuant to Order 6(b).
(b)The parties shall allow for a one to two hour difference in the commencement or conclusion of time, to allow for flight schedules and possible flight delays and the parties shall keep one another informed as to same.
(c)Within seven (7) days of such time occurring, the parties shall provide the relevant flight itinerary to the other party.

10.The mother be at liberty to have a delegate or nominee attend changeover and/or travel interstate with the child and that the child shall be able to travel as an unaccompanied minor when he reaches high school, or such earlier time as agreed between the parties in writing.

Travel costs
11.For the purposes of travel costs:
(a)The mother shall contribute $1,000 per annum towards the costs of the child’s airfares and after that amount has been spent, the parties shall share the costs of the child’s travel equally.
(b)The mother shall make all flight bookings for the child’s flights between Tasmania and Sydney balancing the need for the cheapest flights possible with the convenience of travel times for child and the father.
(c)The mother will advise the father of the cost of the airfares and the amount to be reimbursed by him pursuant to Order 11(a). Reimbursement of the costs is to be made within 14 days of the request being made by the mother to the father.
(d)The costs of the father’s travel shall be borne solely by the father.
(e)The costs of the mother’s travel shall be borne solely by the mother.
(f)The costs of the mother’s nominee or delegate shall be borne solely by the mother.
(g)The mother shall use her best endeavours to ensure that the father is given access to a registered motor vehicle at all times that he is in Tasmania.

Electronic communication
12.The child shall communicate with the parent he is not with (“non-resident parent”) via telephone/video call:
(a)At least two times a week on days and times to be agreed by the parties.
(b)On his and the parties’ birthdays at 5.00 pm with the non-resident parent to initiate the call and the other parent to facilitate the call.
(c)On Christmas Day at 10.00 am with the non-resident parent to initiate the call and the other parent to facilitate the call.
(d)On Easter Sunday at 10.00 am with the non-resident parent to initiate the call and the other parent to facilitate the call.
(e)On Father’s Day, if the child is not already spending time with the father (and the father shall be entitled to change a weekend time to ensure that the child is with him on that weekend), at 10.00 am with the mother to initiate the call.

Non-denigration
13.Neither parent shall threaten, harass, abuse, assault or denigrate the other parent or members of their family, nor allow the child to remain in the presence or hearing of a third party who is threatening, harassing, abusing, assaulting or denigrating the other parent or members of their family.

Medical
14.If the child is involved in any medical emergency the parent who has care of the child shall notify the other parent as soon as reasonably practicable.
15.Each party shall ensure the other party is kept informed as soon as is reasonably practicable of:
(a)any medical problems or illness suffered by the child whilst in their care;
(b)any medication that has been prescribed or otherwise given for the child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)any social, school or religious functions which the child is to attend;
(e)the telephone contact number, residential address and email address of either party; and
(f)any other matter relevant to the welfare of the child.

16.Each of the parents shall authorise and direct any medical practitioner, psychologist, counsellor or therapist who has consulted with or treated the child to provide both parents with any and all information.

Ancillary orders
17.Each of the parents is restrained from requesting or directing the child to convey any information or request to the other parent, and shall unless in the case of an emergency communicate with the other parent by way of WhatsApp messaging service.
18.Each party is at liberty to attend at the child’s school, sporting and extracurricular events for the purposes of any function or activity normally attended by parents.
19.The mother shall pay the full costs of the Independent Children’s Lawyer.
20.The Independent Children’s Lawyer be discharged.
21.The matter be removed from the list of cases awaiting finalisation.

File number(s):	SYC 4656 of 2019
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	2 February 2022
Catchwords:	FAMILY LAW – PARENTING – Relocation from NSW to Tasmania – where the father and Independent Children’s Lawyer oppose relocation – admissibility of expert report due to bias and forensic prejudice – role of family report writer – when intimidating, monitoring and controlling behaviour induces fear – when need to protect from harm is prioritised over promotion of parental relationship – the state of the mother’s mental health and the impact on her parenting capacity – where articulating safety concerns is not evidence of a parents’ inability to promote a meaningful relationship – long term impact of exposure to parental conflict on the child – relocation permitted.
Legislation:	Evidence Act 1995 (Cth), s.135 Family Law Act 1975 (Cth), ss.117, 60CC, 61DA, 65DAA, 69ZT(1) Federal Circuit Court Rules 2001 (Cth), rr.15.06A, 15.07 Federal Court Rules 2011 (Cth), Pt.23
,
Cases cited:	AMS & AIF (1999) 163 ALR 501 Bass & Bass [2008] FamCAFC 67 Collu & Rinaldo [2010] FamCAFC 53 G & C [2006] FamCA 994 Godfrey & Sanders (2007) 208 FLR 287 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mazorski & Albright (2007) 37 FamLR 518 McCall & Clark (2009) FLC 93-405 Morgan & Miles (2007) FLC 93-343 MRR & GR (2010) 263 ALR 368 Hildebrand & Mathisen [2012] FMCAFam 1127
Division:	Division 2 Family Law
Number of paragraphs:	226
Date of hearing:	7 – 10 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr Wong
Solicitor for the Applicant:	Finn Roache Lawyers
Counsel for the Respondent:	Mr Tockar
Solicitor for the Respondent:	MGA Law
Counsel for the Independent Children's Lawyer:	Mr Jackson
Solicitor for the Independent Children's Lawyer:	Brian Samuel & Associates

SYC 4656 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR NICHOLSON Applicant
AND:	MS ANDREWS Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	8 FEBRUARY 2022