Nihal & Nihal - [2024] FedCFamC2F 96

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nihal & Nihal [2024] FedCFamC2F 96

File number(s): SYC 5320 of 2021

Judgment of: JUDGE BECKHOUSE

Date of judgment: 23 January 2024

Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Coercive order made for the mother to return to Sydney from Melbourne with the child – Court determined that rare and extreme circumstances established

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

Cases cited:
Adamson & Adamson (2014) FLC 93-622

AMS v AIF (1999) 199 CLR 160

Franklyn & Franklyn [2019] FamFAFC 256

Morgan & Miles [2007] FamCA 1230

MRR v GR [2010] HCA 4

Oswald & Karrington [2016] FamCAFC 152

Sampson & Hartnett (No 10) (2007) FLC 93-350

U v U (2002) 211 CLR 238

Division: Division 2 Family Law

Number of paragraphs: 205

Date of last submission/s: 21 December 2023

Date of hearing: 18, 19, 20 and 21 December 2023

Place: Sydney

Counsel for the Applicant: Mr Fermanis

Solicitor for the Applicant: First Choice Family Lawyers

Counsel for the Respondent: Mr Wilkinson

Solicitor for the Respondent: Winder Lawyers

Counsel for the Independent Children's Lawyer: Ms Hayward

Solicitor for the Independent Children's Lawyer: Hazim & Co Lawyers Pty Ltd
ORDERS

SYC 5320 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NIHAL

Applicant

AND:
MS NIHAL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

23 JANUARY 2024

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior parenting orders be hereby discharged.

Parental responsibility
2.The parents shall have equal shared parental responsibility for the child, X born in 2017.

Living arrangements
3.X shall live with the Mother.
4.By no later than Monday, 22 April 2024, X shall be relocated to live in the Greater Sydney area in New South Wales and from that time the parents are restrained from relocating X’s primary residence from the Greater Sydney area, unless by further Order or written agreement.

Spend time arrangements before X’s relocation to the Greater Sydney area
5.Pending compliance with Order 4, the Father shall spend time with X as agreed between the parties, and failing agreement, as follows:
(a)From 20 January 2024, at 9 am until 3 pm the following Saturday, being 27 January 2024.
(b)From 10 February 2024 each week from Saturday 9am to Sunday 3pm.
(c)For one half of all Victorian School Term Holidays as agreed between the parties, and failing agreement, from 9 am on the Saturday immediately following the actual last day of school, until 3 pm on the following Saturday.
(d)Communication via electronic means in accordance with Order 10.

6.In order to facilitate X spending time with the Father in accordance with Order 5, and on the basis the Father is travelling to Melbourne to collect the child by car, changeover will occur, unless otherwise agreed in writing, at C Park, with the Mother to deliver X there at the commencement of his time with the Father and the Father to return X there at the conclusion of his time.
7.In the event the Father is travelling to Melbourne to collect X by air, changeover will occur at the Melbourne Airport which the Father is arriving at, with the Mother to deliver the child to that airport at the commencement of X’s time with the Father and the Father to return X there at the conclusion of his time.
8.For the purpose of Order 7, the Father shall provide the Mother with a flight itinerary no later than three (3) days prior to that travel.

Spend time arrangements after X’s relocation to the Greater Sydney area
9.After seven days of X’s arrival in the Greater Sydney area, X shall spend time with the father as agreed between the parties, and failing agreement, as follows:
(a)Each alternate weekend from Friday after school (or 3 pm if a non-school day) to Sunday at 5 pm;
(b)Commencing in the second week of the second New South Wales (“NSW”) school term in 2024, each alternate Thursday from after school (or 3 pm if a non-school day) to Sunday 5 pm;
(c)Commencing in the second week of the first NSW school term in 2025, each alternate Wednesday after school (or 3 pm if a non-school day) to Monday before school (or 9 am if a non-school day);
(d)During all New South Wales school holiday periods, inclusive of the longer December/January school holiday period, during the first half of school holidays in odd numbered years commencing from the date of these Orders, and during the second half of the school holidays in even numbered years;
(e)On days of special significance to the parties and/or X by agreement and failing agreement on the following special occasions:
(i)On New Year's Eve, commencing at 6 pm on New Year's Eve and concluding at 6 pm on New Year's Day in even-numbered years and alternating with the mother each year thereafter.
(ii)If the father's birthday falls on a day and the father is not already spending time with X, then the father spends time with X on his birthday from 4 pm until 9 pm,
(iii)If X's birthday falls on a day when X is not in the care of the father or the mother then they shall spend time with X on X's birthday from 6 pm until 9 pm,
(iv)If Father's Day falls on a day when X is not in the care of the father then X shall spend time with the father on Father's Day commencing at 6 pm the day before Father's Day until 6 pm on Father's Day;
(v)If Mother’s Day falls on a day when the mother does not have care of X, the mother will have care of X commencing at 6 pm the day before Mother’s Day until 6 pm on Mother’s Day notwithstanding any other order.
(vi)On the first day of Eid al-Fitr, commencing from 5 pm the day prior until 6 pm on the first day of Eid al-Fitr in even-numbered years and alternating with the mother each year thereafter; and
(vii)On the first day of Eid al-Adha, commencing from 5 pm the day prior until 6 pm on the first day of Eid al-Adha in odd-numbered years and alternating with the mother each year thereafter;
(viii)From 9 am on the twenty-sixth day of Ramadan (the Night of Power) until 5 pm one day later in even-numbered years and alternating with the mother each year thereafter; and,
(ix)From 9 am on the ninth day of Thul-hijjah (the day of Arafat), until 5 pm one day later in odd-numbered years and alternating with the mother each year thereafter;
(x)At such other times and by such other means as may be agreed between the parties.

10.Whilst X is in the care of a party, the other party be entitled to communicate with him by Skype, text message, FaceTime and/or telephone at such times as agreed between the parties or failing agreement, every second day between 6 pm and 6.30 pm and the party do all things necessary to encourage and facilitate such communication.
11.Unless otherwise agreed between the parents in writing, changeovers shall occur at X’s school and, on a non-school day, at a location nominated by the mother provided it is within 15 kilometres of D School.

Schooling
12.By no later than the commencement of the NSW school term 2 on 29 April 2024, X shall be enrolled in and attend either D School or such other school that is nominated by the Mother, but provided the school nominated by the mother is within a 15-kilometre radius of D School and within a 3-kilometre radius of her residential address.
13.The Father will take all steps necessary to support X’s enrolment at D School, or such other school that is nominated by the Mother, including providing and signing all necessary documents, purchasing required school uniforms, purchasing required school supplies, and paying any school enrolment fees on behalf of X.

Communication
14.Each parent notifies the other within twenty-four (24) hours of any changes to their contact telephone number or email address.
15.The mother must notify the father that she has relocated to the Greater Sydney Area within twenty-four hours of her arrival.
16.The parties provide a copy of these orders to any out of school care, recreational organisation, school, and medical practitioners (“the agency”) which X from time-to-time attends and each party is to:
(a)List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving X anytime a situation arises requiring an emergency contact, together with one alternative contact in the event that neither parent is able to be reached on such occasion;
(b)Authorise such agency to communicate with each party on matters relating to X’s welfare and education, including school events;
(c)Authorise such agency to provide notices, newsletters and reports directly to each party; and
(d)Authorise such agency to contact each party in the event of an emergency.

17.If X suffers any significant injury, illness or require any medical attention while in the care of a party, that party shall notify the other as soon as practicable, but no later than one hour, of said injury, illness or medical treatment.
18.At changeovers each party is to provide to the other any medication prescribed for X whilst X is in that party’s care together with any information or directions provided by X’s treatment providers or health professionals as to how that medication is to be taken by or administered to X, and each party is to ensure that X takes, or that they administer to X, any prescribed medication in accordance with such directions while X is in their respective care.
19.Both parents shall keep the other advised of the health of X including any serious illness, medication or hospitalisation of either X as soon as reasonably practicable or to allow the other parent to visit the X if hospitalised.

Restraints
20.The parties are hereby restrained from the following:
(a)Physically disciplining X;
(b)Making any critical, disrespectful, disparaging, or derogatory remarks about the other parent or any member of the other parent's family or household to X, or in the presence or hearing of X or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.

Implementation of Orders
21.The Independent Children’s Lawyer (“ICL”) will take whatever steps are reasonably necessary and within the scope of their role to support X and the Mother with their relocation to Sydney including referring the mother to emergency housing services and a family support service such as the E Program.
22.The Mother will do all acts and things necessary to engage with any support services she is referred to by the ICL.
23.Within thirty (30) days of relocating to NSW, the Mother will consult with a GP for the purpose of obtaining a referral for a mental health assessment and/or mental health treatment plan.
24.The ICL is discharged six (6) months from the date of these Orders.
25.The ICL and the Mother are permitted to provide a copy of these Orders and Reasons for Judgment if required for the purposes of providing support services to the mother and X.
26.If any Application is filed in respect of the enforcement of these Orders, it should be listed before Judge Beckhouse provided it is filed within six (6) months of the date of these Orders.

Costs
27.The ICL’s Application for costs be dismissed.

THE COURT NOTES THAT:
A.In accordance with the Victorian Government website (being the first day of Term 1 2024 in Victoria is 30 January 2024.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION

These are settled reasons for judgment that were delivered orally on 23 January 2024[1].
[1] Grammatical and literal errors have been corrected from the transcript for comprehension. References have been included and if the transcript contains an incorrect or incomplete reference, it has been corrected.
This case is about the parenting arrangements for X, who is six years old.
X’s parents are the applicant father, Mr Nihal (“the father”), and the respondent mother, Ms Nihal (“the mother”).
X has been in the mother’s full-time care since the parties separated when X was only a few months old. Together, they have lived in Melbourne since 2020.
The mother alleges that she was subjected to significant family violence during the relationship by the father. The father accepts that family violence took place during their relationship. The father also alleges he was the victim of family violence. Whilst the family violence between the parties is relevant to matters that need to be determined, neither party alleges that X is now at risk of harm from being exposed to family violence.
Whilst there are a range of risks of harm that have been alleged, neither party contends that X is at risk of unacceptable harm in the care of either parent.
The father argues that the Court should hold concerns about X’s welfare and wellbeing, should he remain living in Melbourne with the mother. He contends that the mother has mental health vulnerabilities, lacks secure accommodation, has poor impulse control, is financially insecure, and this combined, has an adverse impact on X’s care, welfare, and development. He asks for an order that X live with him in Sydney and spend time with his mother on alternate weekends. In the alternative, he seeks an order that X return to live in New South Wales with the mother, should she choose to accompany him.
The mother would like to remain in Melbourne and exercise sole parental responsibility for X. She seeks an order for X to spend time with the father each alternate weekend, from Saturday until Sunday, and that he speak with him on two occasions each week.
ISSUES IN DISPUTE
The Court is asked to determine:
(a)What orders should be made in relation to parental responsibility?
(b)In which city X should live?
(c)Which parent should X live with?
(d)What time should X spend with the parent with whom he does not live?
EVIDENCE
Each of the parties provided Case Outline documents setting out the material relied upon.
The father relied upon:
·Further Amended Initiating Application filed 12 December 2023
·Affidavit of Mr Nihal filed 1 December 2023
·Affidavit of Ms F filed 1 December 2023
·A Single Expert Report of Mr G filed 7 December 2023
·A Notice of Child Abuse, Family Violence or Risk filed 14 March 2023
The mother relied upon:
·Response filed 30 May 2023
·Affidavit of Ms Nihal filed 6 December 2023
·A Notice of Child Abuse, Family Violence or Risk filed 30 May 2023
The Independent Children’s Lawyer (“the ICL”) relied upon:
·The Family Report completed by Regulation 7 Family Consultant, Ms H (“the family report writer”), dated 3 April 2023, which I will refer to as the “Family Report”.
I have also had regard to the material marked and tendered as exhibits.
The mother and father were both legally represented.
The Court has the benefit of an ICL.
The parties were each cross-examined. The father’s current wife, Ms F, was also cross-examined.
BACKGROUND TO THE PARTIES’ RELATIONSHIP
Before considering the proposals and law, it is useful to capture the relevant facts.
The mother was born in 1973 in Country J.
The father was born in 1985 in Country J.
The mother has three children from a former marriage in Country J. Her three adult children from that marriage are Mr K, Mr L and Mr M, who all currently live in Country J.
In 2007, the parties met in Country J and were in a mostly long-distance relationship between 2008 and 2013.
In 2008, the father immigrated to Australia.
In 2012, the parties married in Country J.
In 2013, the mother arrived in Australia on a spouse visa and the parties commenced cohabitation.
In mid-2013, the mother reports incidents of family violence to Suburb N Police. She deposed that she was encouraged by her father to return to the father.
In early 2014, the father was arrested and charged with common assault of the mother (“the early 2014 incident”). The mother claimed that the father woke her up in a rage by punching her back, then grabbed her neck and head. The father denied this in his evidence and claimed that the mother abruptly left their home during an argument. He deposed that the mother attended Suburb N Police Station the next day and reported that he had assaulted her.
The father was charged. However, in mid-2014, the charge of common assault was withdrawn by the mother. She now claims that she was coerced to do so by the father.
The father deposed that one night after the early 2014 incident, the mother jumped on his chest and began to viciously punch him in the face, chest, and shoulders. Despite attempting to stop her, the mother continued to hit, punch, and kick him, and screamed at him things such as, “You son of a dog! You bastard, you are a cheating bastard!” She denies the allegation but alleges that she was upset that the father was having an affair. The father claimed he did not report the incident to Police because he was afraid to jeopardise his visa status in Australia.
In early 2015, two children from the mother’s previous marriage arrived in Australia from Country J and were sponsored by the father. The mother says that the father had always agreed to sponsor them to stay in Australia. However, both returned to Country J in mid-2015. The mother says this was due to family violence, and the father alleges that the parties could not afford the visa sponsorship costs.
In late 2016, the mother alleges she was punched by the father. The Police attended their home, and the father was charged with assault occasioning actual bodily harm. A provisional apprehended domestic violence order (“ADVO”) was issued (“the late 2016 incident”).
The father returned to live with the mother in contravention of the terms of the ADVO. He was later arrested at his workplace and charged with breaching the ADVO and of stalk and intimidate.
In early 2017, the father’s charges from the late 2016 incident were heard. He pleaded guilty and was convicted and placed on a good behaviour bond.
X was born in 2017, and is currently six years old.
PARENTING ARRANGEMENT SINCE SEPARATION
The parties separated on a final basis in December 2017, when X was only months old. Initially, the mother and X stayed with a friend before obtaining emergency housing.
In early 2018, X and the mother were located to Town O. They returned to Sydney with the assistance of the father.
In 2018, the father met his current wife, Ms F. The father and Ms F began living together in 2019 and they registered their marriage the same year.

In mid-2019, a violent altercation took place between the parties. The wife alleges that the father sexually assaulted her in X’s presence. The father denies this allegation but says the mother was enraged about his relationship with Ms F and assaulted him. The father later went to a hospital for treatment. There was no police involvement in the incident.
In 2020, the mother and X relocated to Melbourne. The father was unaware of their location.
The mother remarried a man named “Mr P” in or around 2020, although the details are unclear as the mother did not include this in her evidence before the Court. Under cross-examination, she estimated the marriage was of three years duration, which consisted of one year of cohabitation. In early 2022, she approached the Victorian Police for a protection order and complained that the relationship was characterised by family violence. Her then husband, Mr P, was excluded from the home and it appears that the marriage was by then at an end. Her complaint was later withdrawn.
On 11 September 2022, the father spent supervised time with X at a supervised contact service in Melbourne.
X started spending unsupervised time with the father on 27 April 2023 in Melbourne.
In early 2022, the father completed a Parenting After Separation course and, in mid-2022, he completed the Circle of Security Parenting Program.
CURRENT CIRCUMSTANCES
At the time of the final hearing:
(a)The mother is 50 years old. She and X live at an undisclosed location in Victoria. She shares her temporary accommodation with two other women. At the time of the hearing, she has been living at her current shared accommodation for two weeks.
(b)She is currently not employed and receives Centrelink benefits to support herself and X.
(c)The mother’s native language is Country J language. She speaks basic English and does not read English well.
(d)The father was 38 years old at the time of the final hearing. He is employed as a tradesperson. He works from 8 am to 4 pm, five days a week.
(e)He has remarried and lives with Ms F and her two children, T, age 16, and U, age 13. They live in a home in Suburb S owned by Ms F.
(f)The father currently pays $528 per month in child support for X.
PROCEDURAL HISTORY
On 22 July 2021, the father filed an Initiating Application seeking urgent interim orders to locate the mother and X with a view to spending time with X. A location order was made on 19 October 2021.
On 7 December 2021, the father filed an Amended Application seeking orders that X be placed on the Airport Watchlist.
On 24 May 2022, a Child Impact Report by Court Child Expert, Ms B, was prepared and released to the parties.
On 26 July 2022, following an interim hearing, orders were made for the father to commence spending supervised time with X three hours each week and to have weekly telephone communication.
On 17 November 2022, an interim hearing took place. A Judicial Registrar made Orders that, should the mother cancel a supervised visit, a medical certificate is to be provided within seven days. The Orders also required the mother to disclose X’s current school by 1 December 2022.
On 27 February 2023, the father filed an Application in a Proceeding. The parties then attended a mediation with the assistance of the Family Report, which had, by then, been released.
On 27 April 2023, orders were made by consent extending the father’s time with X to unsupervised time. His time increased incrementally such that, by the time of the hearing, he was spending time with X approximately each alternate weekend from 9 am Saturday until 3 pm Sunday.
On the final day of the hearing, the parties entered into discussions about the father’s time with X during school holiday periods. Interim Orders were made for the father to spend time with X over two block periods:
1. The Father shall spend time with [X] born [in] 2017 (“the child”), as agreed between the parties and failing agreement as follows:
a. Commencing on 23 December 2023, from 9am until 3pm on 30 December 2023; and
b. From 20 January 2024, at 9am until 3pm the following Saturday, being 27 January 2024.
Interim Orders were also made for school holiday periods in 2024:
2. The Father shall spend time with the child for half of the Term 1 and 2 2024 Victorian School Term Holidays as agreed between the parties and failing agreement, from 9am on the Saturday immediately following the actual last day of school, until 3pm the following Saturday.
THE EVIDENCE IN DISPUTE
The parties are at odds on some significant details about the relationship. Generally, the Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings (see Adamson & Adamson (2014) FLC 93-622, (“Adamson”)). However, it has been necessary in this matter to make findings about the credit or at least the reliability of the evidence given. I cannot discharge my statutory obligation to make orders that are in X’s best interests unless I assess the parties’ competing allegations and accounts of their behaviour during the relationship.
The father was reasonably open and balanced when he gave evidence. Whilst some responses he gave were self-serving, he answered questions directly and his evidence about the relationship has remained reasonably consistent.
The capacity of the mother to understand written and spoken English was a relevant issue. The mother was assisted by an interpreter at Court. An interpreter was not used when she swore her affidavits. Furthermore, as she resides in Victoria, her affidavits were witnessed in Victoria and not by her legal representative. She gave evidence that she could read her affidavit but there were words that she had difficulty with.
The mother swore an affidavit on 1 December 2023, which I will refer to as “the earlier affidavit”. On 6 December 2023, she swore an updated affidavit, which I will refer to as “the updated affidavit. She agreed that she had done so to correct some matters in the earlier affidavit.
The following assertions contained in the earlier affidavit did not appear in the updated affidavit:
42. I entered the house and was immediately subjected to [Mr Nihal]’s anger, he accusing me [sic] of lying to him about being at work and, as usual, he struck me about my face in my body [sic]. The two boys arrived, as arranged 10 minutes later, and [Mr Nihal] accused them of lying as to where they had been all evening. He became so angry with [Mr K] that he grabbed him by the shirt, ripping the collar, and punched him in the face.
…
50. 48. [Mr Nihal] he locked me into storage on one occasion. Someone 51. Called police and they found me locked in the storage and took photos of all myBruises [sic].
…
80. As indicated my children in [Country J] has been assaulted. [Mr Nihal] he showed me a video of his brother in [Country J] sexually assaulting my son [Mr L].
(As per the original)
Under cross-examination, she did not withdraw these allegations, but she could provide no explanation for their omission from the updated affidavit. Nor could she explain why no evidence had been provided to support her contentions. For example:
(a)Her adult children could have sworn affidavits to verify the events deposed, but they did not.
(b)Police records had been subpoenaed. She agreed that there were no police records or entry to support her contention that the Police found her locked in a storage unit and took photos as alleged in paragraph 50 of her earlier affidavit.
The mother made very serious allegations about the father’s conduct. Of particular concern was the dissonance between the mother’s evidence in cross-examination and her sworn evidence.
There were other matters that raised concern about the mother’s veracity. For example:
(a)The mother had, by hand, deleted the words “I have not re-partnered”, which appeared at paragraph 88 of the earlier affidavit. It was omitted from the updated affidavit.
Records from the Victorian Police and Child Protection authorities have been subpoenaed. The police recorded the mother making a complaint against a “new husband” in mid-2022. That record also alleged that Mr P had engaged in family violence, including that he slapped X on the face in 2021.
A further entry dated mid-2022 recorded:
Met with mother… She also spoke about her current husband and how she was worried for [X]’s safety around him.
She confirmed that police attended last night, and her husband was excluded from the home. She further confirmed that she was not planning on resuming the relationship…
Under cross-examination, she denied that she had a current partner or husband. She only disclosed that she had moved to Melbourne and remarried upon being asked specifically. She then revealed that she had been in that marriage for a three-year period under cross-examination. It was not a matter disclosed to the family report writer either. She denied that Mr P had ever hit X, notwithstanding the record taken by the domestic violence service, Q Centre.
(b)She deposed in her affidavit that she was living in a small apartment with X but looking for a larger apartment. However, in subpoenaed documents, such as the doctor’s records, she reported herself as homeless and staying in temporary community housing. This was not the case when the Family Report was written, and it led the family report writer to give evidence that she was increasingly concerned about the transitional nature of the mother’s accommodation and its impact on X.
As a result of these inconsistencies, I observed the mother’s evidence on some issues to be unreliable. Whilst this does not mean I will prefer her evidence or the father’s evidence over hers, it does mean that I will approach her evidence cautiously.
EXPERT EVIDENCE
The Family Report was completed on 3 April 2023. Observations between X and the parents did not occur for reasons set out in that record.
I will refer to the content of the Family Report as necessary during these reasons.
The Family Report does not make specific recommendations for X’s long-term living arrangements.
The family report writer made the following recommendations:
63. It is recommended that there be no change to the current living and spend time arrangements for [X] until the following occurs:
•A full psychological evaluation of [Ms Nihal] [the mother], given the concerns raised about the physical abuse of [X].
•A full psychological evaluation of [Mr Nihal], given the allegations of family violence.
•A full assessment of [X], given the concerns raised by [Mr Nihal] about family violence allegedly perpetrated by [Ms Nihal] [the mother], with consideration being given to obtaining reports from his school, the contact centre and any other agency involved.
64. That consideration be given for an updated Family Report to be completed once the above assessments have taken place for further recommendations to be made about [X]’s living arrangements.
65. That [Ms Nihal] [the mother] continues to engage in family violence counselling.
66. That consideration be given for [Mr Nihal] to engage in a men’s behaviour change program.
67. It is recommended that both parties be made to engage in a parenting program such as Tuning Into Kids.
68. It is recommended that neither of the parties, [Mr Nihal] or [Ms Nihal] [the mother], denigrate, alienate, abuse, or negatively influence the children against either parent and engage in positive communication about the other parent.
69. Consideration be given to ensuring that [Ms Nihal] [the mother] has access to an interpreter to be guided through the contents of this Report.
I place weight on the Family Report. I place less weight on the family report writer’s oral evidence for the following reasons:
(a)The family report writer was unavailable to give evidence until late on the final day of the hearing. She advised that her time was limited.
(b)The parties had filed updated affidavits and large tender bundles had been prepared. The family report writer said she had only had time to “skim” some of that material.
(c)A range of new matters and developments were put to the family report writer under cross-examination. For example, X’s subpoenaed school records. She said it was the first time she was aware of some issues put to her.
(d)She gave evidence that she would not change her recommendations without further information.
(e)She was opposed to X being separated from his mother and clarified that she was not making a recommendation that X move to Sydney without the mother.
(f)While I was satisfied that the family report writer was open to persuasion about different scenarios that were put to her in cross-examination, and that she gave thoughtful evidence, I am not satisfied that she had adequate time to consider those new matters in the context of the recommendations contained in the Family Report.
PROPOSALS
The father proses that:
(a)The parties have equal shared parental responsibility for X.
(b)By no later than 22 January 2024, X is returned to the Greater Sydney area, and thereafter, both parties are restrained from locating him outside of the Greater Sydney area.
(c)X be enrolled at D School commencing Term 1, 2024.
(d)If the mother resides in Sydney, X live with the father and spend time with the mother:
(i)During the school term, each alternate weekend from after school Friday to commencement of school Monday; and
(ii)Half school holidays.
(e)If the mother remains in Melbourne, then X live with the father and spend time with the mother:
(i)During the school term, each alternate weekend from 10 am Saturday to 5 pm Sunday; and
(ii)Half school holidays.
(f)The father will be responsible for all travel expenses for X to spend time with the mother as proposed above.
(g)X be permitted to communicate with the party he is not living with every second day between 6 pm and 6.30 pm.
(h)The father hold X’s passport, and the father be permitted to travel internationally with X.
The mother proposes that:
(a)She have sole parental responsibility for X.
(b)X lives with her in Melbourne.
(c)X spends time with the father each alternate weekend from 10 am Saturday to 4 pm Sunday.
(d)X communicates with the father by FaceTime each Tuesday and Thursday between 6 pm and 6.30 pm.
At the completion of the evidence, the ICL proposed final orders. They can be summarised as follows:
(a)The parents have equal shared parental responsibility for X.
(b)Within four weeks, X be relocated to live in Sydney.
(c)X is to be enrolled at D School commencing Term 1, 2024.
(d)In the event the mother does not relocate with X to Sydney, X shall live with the father and spend time with the mother as follows:
(i)During the school term, commencing from 10 am on Saturday until 5 pm on Sunday and every alternate week thereafter; and
(ii)Half of all school holiday periods.
(e)In the event the mother resides in Sydney:
(i)X should live with the mother and spend time with the father initially for three nights each fortnight, incrementally increasing each month.
(ii)Half of all school holiday periods.
(f)At least 21 days from the date of the orders, the mother is to file and serve a treatment record from her most recent treating medical health practitioner.
(g)The mother is to attend a Parenting After Separation course.
(h)The mother shall engage with services such as intensive family support services in the home.
LEGISLATIVE FRAMEWORK
The principles governing the Court’s determination of competing parenting applications are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The Court must consider what is in the best interests of the child when making a parenting order (pursuant to s 60CA of the Act). 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.
The “primary considerations” under s 60CC(2) of the Act are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
The need to protect is prioritised over the benefit to the child arising from a meaningful relationship.
It is generally accepted that the best interests of the child are met by ensuring they have the benefit of both their parents having meaningful involvement in their lives to the maximum extent, consistent with their best interests.
There are 13 additional considerations, which are set out in s 60CC(3). In arriving at my decision, I have not made specific reference to all of the various factors set out in s 60CC(3), however, those of the s 60CC matters which are relevant have been considered in determining X’s best interests.
If an order is made for equal shared parental responsibility, then the Court is to follow the reasoning process set out in s 65DAA. That process calls for the sequential consideration of orders for equal time with the parents, followed by orders providing for substantial and significant time with a parent prior to consideration of the other options.
Where an order for equal time is considered, proper consideration must be given both to the best interests of the child and to the reasonable practicability of such an order, as the unavailability of either will prevent an order from equal time, or substantial and significant time, being made (see MRR v GR [2010] HCA 4 at [13]).
In this matter, I am also asked to consider making an order to relocate the residence of the child. Issues of reasonable practicability often become significant in cases involving relocations. The central question under this consideration was the father’s argument that, if X does not live with him, I should make a coercive order that he be relocated to Sydney because such a move would maintain and enhance his prospective meaningful relationship with X. The principles that I have had regard to in determining this matter are:
(a)Parents enjoy as much residential freedom as is compatible with their parenting obligations (see AMS v AIF (1999) 199 CLR 160 at 223-223 and 231-232, (“AMS v AIF”)).
(b)Only if the welfare of the child would be adversely affected should any parent’s right of freedom of mobility defer to the paramount consideration of the child’s best interest (U v U (2002) 211 CLR 238 at [89], (“U v U”)).
(c)The Court’s power to make a coercive order as to where a parent is to live should be exercised only in rare and extreme circumstances, namely, for a parent to perform their role as primacy carer, and in the absence of alternative options (Oswald & Karrington [2016] FamCAFC 152).
The connection between the risk of impairment to maintenance of a meaningful relationship with a parent who a child does not live with and a great distance between households is well recognised. For example, in Franklyn & Franklyn [2019] FamFAFC 256 (“Franklyn”), the Full Court observed at paragraph 27:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children. The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
(Citations omitted)

In Morgan & Miles [2007] FamCA 1230, Boland J observed at paragraph [80]:
It follows from my exposition of the legislation, that earlier core principles:
•that the child’s best interests remain the paramount but not sole consideration;
•that a parent wishing to move does not need to demonstrate “compelling” reasons;
•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
•the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
(As per the original)
I will apply these core principles when I determine the issue of relocation later in these reasons.
THE CHILD
Before applying the law, information as to X needs to be captured.
X has always lived with the mother. His mother says he is a healthy and happy boy who is progressing well at school. The family report writer observed “no indication that [X] felt uncomfortable or unsafe in the care of” his mother.
The father described X to the family report writer as “a really smart kid”. He said that X also loves going outside and is good at counting.
X’s relationship with the father has been sporadic since the parents separated when X was just months old. The father says there was a period of around three years when he did not see X after the mother relocated to Melbourne.
The mother says she has kept X from spending time with the father for various periods due to concern for his safety in the care of the father.
X’s time has increased incrementally as previously outlined.
X presently spends time with his father in Melbourne each alternate weekend from Saturday morning until Sunday afternoon.
To spend time with X, the father and Ms F drive 16 hours for each visit and incur expenses, such as petrol and accommodation costs.
X spoke positively about his time with his father during the Family Report process and indicated he would like to see him more often. This is consistent with the father’s evidence and the notes taken by the supervised contact service.
The Family Report also noted that X:
likes living with his mum and spoke about playing games with his mum. [X] said he has no bad memories of either his mum or dad. [X] also said that “mum says good things about dad” and “dad says good things about mum”.
The family report writer noted that X appeared to be settled and comfortable at his school and sees this as a positive experience, although there was evidence that suggested this might not be the case.
X has sports lessons, but this appears to be an activity arranged through the school. He currently participates in no other extracurricular activities. The mother gave evidence that weekend activities that they previously enjoyed have been discontinued. There was no evidence to satisfy me that X is embedded in his community in Melbourne.
X receives financial support from his father.
Concerns about X
The father has made allegations that the mother is physically and psychologically abusive towards X and alleges that he is unsafe in her care.
The evidence of the father and the material produced by his school raise several concerns about X. These include:
(a)There are at least seven entries in 2023 of X attending school with no food or inappropriate food in his bag.
(b)X missed 41 days of school in 2023. Of these absences, seven unexplained absences occurred in the two months before the final hearing. He was also recorded as arriving late on another 14 occasions.
(c)X complains he was bullied at school because of his hair.
(d)The father is concerned that X is sent to school unwashed and in dirty clothes, although there was no evidence of this.
The father also alleges that:
(a)In July 2023, X sent him a series of voice messages over a number of days wherein he complained that his mother had hurt him.
(b)On 9 October 2023, in the presence of the contact supervisor, X alleged that he had been hit hard by his mother. X it is alleged said, “she hits me all the time”. A report to a Child Protection Agency was made by the supervisor.
(c)The school records note that, on 23 February 2023, following a disciplinary incident, X said his mother was going to slap him.
The family report writer made the following observation at paragraph 34:
Since his contact with [X] has resumed, [Mr Nihal] stated that [X] often tells him that [Ms Nihal] [the mother] hurts him, and he believes he has witnessed [Ms Nihal] [the mother] punching [X] during one of their video calls. [Mr Nihal] stated that [X] “says [Ms Nihal] [the mother] hurts him all of the time and that he hates her”. [Mr Nihal] has also stated that there had been occasions where [Ms Nihal] [the mother] has wanted to relinquish care of [X] and has threatened to harm him. [Mr Nihal] stated that he had made several reports to child protection with his concerns, but he is unsure whether any action has been taken. He spoke about significant concerns about her parenting capacity and stated that [X] is not safe in her care.
There was a school entry of a meeting between the mother and family violence workers on 16 February 2023. The mother reported that X was becoming more aggressive after spending time with the father. She also reported her concerns that an order might be made for the father to have unsupervised time. Nothing in the school records suggested disciplinary issues or the school recording aggressive behaviour by X. When the mother saw the family report writer a month later, she did not raise this as an issue. Whilst it is plausible that X was returning from visits with his father unsettled, I cannot discount the possibility that the mother has raised this issue to advantage the prospects of success of her case.
X’s parents
The mental health of the parties
The mother raised concerns about the father’s mental health during the relationship. She alleges that he engaged in controlling behaviour, was jealous, and that he could not control or manage his anger or emotions.
Ms F said that she had never experienced him being emotionally, physically or psychologically abusive or violent in any way (at paragraph 17 of her affidavit):
Throughout the five years I have known [Mr Nihal], I have never experienced him to be emotionally, physically or psychologically abusive or violent in any way. In fact, I have never seen or heard [Mr Nihal] raise his voice at, or physically discipline, either of my children. I have however, observed [Mr Nihal] sit my children down and explain to them, in a calm and gentle manner, what they have done wrong when they have misbehaved.
The father alleges that the mother’s mental health is unstable, and this negatively impacts on her parenting of X.
He complained to the family report writer about:
her erratic behaviour, including contacting his workplaces and making up stories about him, threatening his current wife with text messages and, allegedly, sending topless photos of herself to his family.
The series of messages sent to Ms F was before the Court. It was alleged that they were sent by or on behalf of the mother. Ms F reported the matter to the Police. The mother denied sending the messages and, indeed, denied knowledge of them. However, this seems implausible because they were of a personal nature and directed in an acrimonious way towards Ms F. The messages are offensive, derogatory, and threatening. The father alleges that when he confronted the mother about the messages in person, the mother assaulted him.
The father deposed that Police took no action arising from the messages because the account was likely based overseas and, as a result, it was difficult to prove to the criminal standard that the threats were made by or on behalf of the mother. I find on the balance of probabilities that the threats were most likely made by or on behalf of the mother.
The father also alleged a final incident between the parties where the mother hacked at her own hair during an argument. He says this was the last time he saw X before the mother relocated to Melbourne with him.
The father gave evidence that he continues to be concerned about the mother’s mental health. He gave evidence that her mood changes very quickly from being agreeable on one day to being angry and erratic on another day. He complains that X is subjected to these mood changes. He says, during telephone calls with X, he has heard the mother speaking to X in a derogatory manner, for example, saying words like, “come here, son of a dog”.
On balance, I accept the father’s evidence that the mother has behaved in an aggressive and erratic manner towards him.
The family report writer observed the mother to present as distressed and tearful. To the family report writer, the mother denied any mental health concerns of her own and stated she had been having family violence counselling for several years. She also claimed she is linked with a support service to assist her in recovering from her experiences as a family violence victim.
The family report writer therefore recommended that the parties might each undergo psychological evaluations to determine whether it raises any concerns about X’s safety and welfare.
The father did so. On 30 October 2023, the psychologist Mr G prepared a report on the father:
In my opinion [Mr Nihal] is not suffering from any diagnosable mental health conditions currently nor recently. In session his mental state is consistently observed to be stable, without clinically significant distress. He appears to be functioning well across main life domains including work, parenting and family. It is likely he experienced clinically significant depression and anxiety four to six years ago due to severe problems in the previous relationship, no access to his son and the loss of his parents. It is clear the previous relationship was extremely unhealthy, unstable and damaging for all involved including [Mr Nihal]. Nevertheless [Mr Nihal] appears to have coped with the mental health and other challenges stemming from that relationship well and has made a full recovery mentally. Currently he appears to be functioning well socially, including in the parenting, intimate relationship, family and work domains.
Prognosis
[Mr Nihal] is currently a healthy and mutually supportive relationship, stable home environment, stable employment, and has regular contact with his son. These are strong factors protective of his mental health and functioning going forward. Combined with the opinion that he is not currently suffering from any diagnosable mental health disorder, I expect it is highly probable he will continue to be well mentally, function as well as a parent and deal effectively with the current challenges going forward.
(As per the original)
The mother did not obtain any reports or provide evidence of her mental health.
There were matters before the Court during the final hearing that also raised concerns about the mother’s mental health:
(a)The note from a consultation with her GP on 16 October 2023 recorded she was suffering from anxiety and fear. The letter was written to Centrelink on her behalf, seeking an exemption due to stress, homelessness, and anxiety. The medical record gave no indication that the mother was medicated for her anxiety nor that she had been referred for a mental health assessment or treatment.
(b)Before the Court was a translation of the voice message that the mother left on the father’s phone in late 2022. The mother accepted that she had left the message. I place no great weight on the content of the message, but it is telling in terms of her vulnerability. In conclusion, the mother says:
I have been forgetting a lot, I forget things … and this is too much; it’s not easy. I have become tired… it’s just that now I don’t feel I am coping. I try my best, about the documents, certificate, doctor, I just can’t do this. I don’t care about anything when it comes to my child. There is school, seeing teachers, talking to them. I cannot express myself very well but I explain everything [to them]; I ask them how he is going, whether he is making friends or not, what he is like. He is a great kid. Everyone praises him. Apart from that, if you think that you can take good care of him, I am willing to step back. Take him.
(As per the original)
(c)The mother’s own evidence raised concerns about her engagement in everyday activities. She is not employed, she lives in temporary accommodation, she could not identify any activities that she was involved in, whether for education or leisure, nor could she identify any regular activities that X was involved in, apart from sports. These matters were put to the family report writer, who advised that she would have concerns for X if the mother did not seek help for her mental health. She recommended that the mother engage with a mental health worker, a family support service, and obtain amental health assessment so she can consider whether medication is an option for her to manage her mental health.
I note the mother’s inability to obtain a mental health assessment in the seven months between the release of the Family Report and the final hearing. I accept that mental health assessments are difficult to obtain, and delays can be experienced. The evidence given by the mother on the steps she had taken to seek a report about her mental health or treatment was unsatisfactory. There was no evidence in her medical records to support her contention that she had asked her doctor for a referral. She said she had asked her caseworker to “manage it” but could provide no other information.
A mental health diagnosis, whether for anxiety, depression, or post-traumatic stress arising from family violence does not disqualify a parent from having a child in their care. Rather, it assists the parent and the Court to understand the nature of the impairment, its impact on their parenting, and, in some cases, what course of treatment will allow their parenting capacity to be improved or restored. Sometimes, it can confirm that a person is suffering trauma as a result of family violence and make recommendations about how parenting capacity can be restored.
In the absences of a psychological assessment of the mother and combined with the mother’s own evidence, I am concerned that the mother experiences poor mental health and that this has and might continue to impact her ability to parent X to the best of her abilities.
Capacity to adequately care for X
Whether by virtue of an undiagnosed mental health issue or other factors, there was evidence before the Court to satisfy me that the mother’s parenting capacity is impaired and is impacting on X. The evidence that leads me to this conclusion is as follows:
(a)The mother described herself as being homeless as recently as late 2023. She is supported by domestic violence services but has no long-term secure housing. She estimates that in the last three years since moving to Melbourne, she has lived in at least four addresses. Australia is currently experiencing a housing crisis. The mother gave evidence that she stayed in the last temporary accommodation for seven weeks and inspected at least 10 homes over that period to no avail. She has been in her current temporary accommodation for two weeks at the time of the hearing. It is shared with two other women and X shares a room with her. The family report writer expressed increasing concern about the transitional nature of the mother’s accommodation and the impact this has on X. I share those concerns.
(b)It is likely that the mother’s accommodation difficulties have an impact on other aspects of her parenting, such as her ability to provide wholesome school lunches for X or send him to school with no food or water.
(c)The father was also concerned that X was being bullied at school because of his haircut. The mother cut his hair and X was unhappy with the cut. The father ultimately paid for a haircut. The mother denied this was an issue for X, which might also reflect the outcome of the mother’s currently impaired parenting capacity. As a positive though, it demonstrates the positive influence the father’s involvement in X’s life can have.
(d)Whilst I am unable to find that the mother has used inappropriate physical discipline on X, it is possible that her current levels of stress and anxiety could result in a less measured approach to X’s discipline.
The father, on the other hand, lives in secure accommodation in Sydney. X would have his own bedroom. He would have 16-year-old T and 13-year-old U in his household. They have not met X except online. Whilst there was no evidence before the Court to suggest that his household presented risks for X, his home environment is untested. I was, however, satisfied that Ms F fully supported his Application and would welcome X into their home.
Other family relationships
Neither party have extended family relationships in Australia, as both their families are resident in Country J.
The mother told the family report writer that X has a close relationship with his half-brothers in Country J and often speaks to them on the telephone.
SECTION 60CC CONSIDERATIONS
Section 60CC(2)(a) – “meaningful relationship”
There is a benefit to X having a meaningful relationship with each of his parents.
Pleasingly, X currently enjoys a meaningful relationship with each of his parents. The father says that his relationship with X is now strong because of the time he has spent with him since April 2022.
The father is concerned that the mother will not facilitate a meaningful relationship between him and X in the future, based on his history with the mother. He complains that the mother has, through her actions, demonstrated a deliberate campaign to limit his involvement in X’s life. The examples he provides includes:
(a)His initial difficulties locating X and the mother.
(b)The mother’s failure to facilitate FaceTime calls following the Orders made on 26 July 2022.
(c)That the mother did not facilitate supervised visits between him and X, citing X’s ill health.
(d)The mother’s failure to consult with him on matters such as X’s schooling.
(e)Her failure to provide details of X’s school, notwithstanding a Court order to do so.
The mother’s attitude toward the father and his relationship with X needs to be considered from her perspective. That is:
(a)She left the relationship due to what she says was ongoing family violence and the safety concerns she had.
(b)She held fears for her safety and, as a result, wanted to keep her location secret from the father.
(c)That she had already moved countries for the marriage and had left behind three children. She no longer has the benefit of financial resources she sent or brought to Australia. Her attempt to reunify with her children had failed and no doubt she feared losing X to the father, especially in the context of her anxiety.
Section 60CC(2)(b) – “abuse” and “family violence”
At the time of the interview with the family report writer, the mother says that X would be at risk of harm if he were to spend unsupervised time with the father. However, unsupervised time between X and his father commenced in accordance with consent orders dated 27 April 2023. By the commencement of the hearing, neither party contended there was any ongoing risk of harm to X in the other’s care.
However, they have experienced a volatile relationship, during which time X was exposed to family violence.
Their respective allegations include:
(a)Family violence by the mother:
(i)The father asserts that he was yelled at and physically harmed by the mother.
(ii)The father says the mother often threw items at him.
(iii)The father asserts he was verbally abused by the mother.
(iv)The father says the mother assaulted him after threatening to harm him and Ms F. He alleged that the mother also threatened him with a weapon. He concedes that she assaulted the father and says this occurred when he was attempting to force her into sexual contact.
(v)The father asserts the mother made threats to harm herself and to leave with X.
(b)Family violence by the father:
(i)The mother alleged that the father engaged in coercive and controlling behaviour upon her arrival in Australia.
(ii)The mother alleges she was a victim of family violence perpetrated by the father, including kicking, punching, verbal abuse, and sexual assault, and that this commenced upon her arrival.
(iii)The mother says that family violence is what led her to move to Melbourne. She gave evidence she did so at the suggestion of the domestic violence service in Sydney.
(iv)The mother alleges that the father made threats to harm both her and her children.
(v)She also alleged that the father engaged in tracking behaviour, although there were no details deposed or evidence led in support of this.
(vi)The father denies perpetrating family violence. However, he concedes being charged and convicted of offences.
Conclusions

The family report writer observed that the family violence allegations are very serious. Certainly, some of the collateral material supports the mother’s position.
Both parties are unable to explain why they provided the Police with accounts of their behaviour and later withdrew those accounts. For example, the father changed his account to Police of the events of late 2016, which led to charges being laid against him. The Police noted that initially, he denied calling the mother in contravention of the ADVO, but later admitted calling her by mistake. He initially denied attending her home and then admitted that he stayed there, saying he had nowhere else to go. Initially, he denied threatening the mother, but later admitted that he had said he would harm himself but said this just to scare her.
Neither party made a complaint to the Police arising from the incidents. The father had taken photos of the injury and purportedly the mother with a weapon in her hand, and he had presented at hospital for treatment. His evidence was that he was concerned that the Child Protection Authorities would intervene and remove X from the care of both parents. While the mother conceded she had assaulted the father, she said it was in self-defence following a sexual assault. Whether in self-defence or not, it is an extreme reaction, particularly when it occurred on two occasions and was serious enough to result in the father’s hospitalisation.
The parties both referred to their visa status and cultural factors to justify their inconsistent responses. For example:
(a)The mother complains of the family violence incident in early 2014. She says she withdrew her complaint because she had nowhere to go.
(b)The father said he was not prepared to make a complaint about the mother’s violence to the police because he was on a temporary visa and did not want any problems with him or the mother.
(c)The father conceded he had given the Police inaccurate versions of an event.
(d)The father said he had not defended the police charges because the wife told him she needed police records in order to preserve her visa.
(e)The father, when he gave evidence, conceded some of the allegations of family violence. He says that the mother gave false information and exaggerated the claims, and whilst he did not agree with some aspects of the police allegations, he was overwhelmed by the criminal justice system and pled guilty.
Little evidence was led about the impact of the parties’ familial backgrounds and culture on their behaviour or responses and attitudes towards the marriage. In her Case Outline document, it was put on behalf of the mother that:
8. Throughout her life the mother has suffered the cultural disadvantage of being a female in a male dominated society. She claims that her treatment at the hands of the father was in line with the tenets of that culture, the father expressing ‘his right’ to her and her possessions.
9. She fears that unrestricted exposure of [X] to his father may lead to [X] assuming an attitude of the opposite sex which is not appropriate in Australia.
Evidence about the parties’ familial backgrounds and culture may have assisted the Court in understanding their behaviour around government departments, Police and their presentation in Court. However, in circumstances where there was no evidence about this, I can only make observations based on what occurred at the hearing.
Both parties have given either self-serving or false evidence to authorities such as Police. While some allegations could be corroborated, often evidence given by the parties was inconsistent with corroborating documents. By way of example, the mother was cross-examined on collateral material recording her information that the father had access to weapons in Country J and was formerly a gang member. She gave evidence that she had not made such an allegation but did not know how it came to be entered on questionnaires completed by her or on her behalf.
The police records or other documents suggest that family violence was a feature of the mother and father’s relationship.
The family report writer observed at paragraph 55:
Both parties raised significant concerns about significant verbal, psychological and emotional abuse perpetrated by the other party, some of which has been perpetrated post-separation. The collateral evidence, including numerous intervention orders, stays in refuges, and reports from child protection appear to support the position of [Ms Nihal] [the mother]; however, it is difficult to determine the full and accurate picture, but the nature of the abuse is very serious and concerning and more particularly so when [X] appears to be have been witness to some of this abuse. Regardless of who the primary perpetrator is, it is important to note that children exposed to family violence have the potential to have a significant impact on their physical, social, and emotional development.
I accept the family report writer’s observations. Little evidence led at the hearing allowed me to determine with any certainty the nature and seriousness of the family violence that took place. However, I share the family report writer’s concerns for X.
I am left to conclude that both parties engaged in family violence during the relationship, and this occurred in the presence of X on some occasions. The family violence alleged by the mother in late 2016 was of a serious nature and led to a range of protective actions being taken on her behalf by the Police and domestic violence agencies. I accept that family violence occurred consistent with the statements made to and by the Police in late 2016.
I accept that the mother did flee to Melbourne in 2019 to escape the father and the toxic nature of their relationship. However, in subsequent years, I am satisfied that due to the limited interaction between the parties, no further family violence has occurred. I cannot make a finding that the mother continues to live in fear that she is at risk of family violence by the father. It is notable that neither party now alleges X is at risk of harm arising from his exposure to family violence.
PARENTAL RESPONSIBILITY
I will now move to the question of parental responsibility. As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in s 61DA(1) of the Act (that is, is it in the best interests of the child that the parents have equal shared parental responsibility) has been rebutted.
Each parent raises allegations of serious family violence towards the other. As I have found that there are reasonable grounds to believe that they have both engaged in family violence, the presumption in s 61DA(1) is rebutted.
The father contends that it would be in X’s best interests for the parents to have equal shared parental responsibility for X.
The father to date has played a limited role in participating in decisions about X, but this has partly been because the mother has excluded him from doing so. I am satisfied that the father would make good decisions for X. However, to make an order that the parents share parental responsibility, I need to be satisfied that the parents can communicate at the level required to make decisions for X.
At the time of the Family Report interviews, the family report writer noted the parents do not appear to communicate with one another at all. Initially, they relied upon the contact centre to facilitate arrangements for X.
The father argued that their relationship and communication has improved since supervised time commenced in April 2023. They now discuss matters over the telephone and will leave messages for each other. The father gave evidence that if the mother is stressed, their communication can be difficult, but that there has been positive communication between them. I accept his evidence about this.
The mother also gave evidence that she leaves voice messages for the father and will speak to him directly if it is of an urgent nature.
If the mother were to be allocated sole parental responsibility for making long-term decisions about X, I cannot be satisfied that she would consult with the father or keep the father informed of the decisions that she makes. Because the Court is unable to make a clear finding about the mother’s mental health and any impact it might have on her decision-making capacity, there are risks to X if sole parental responsibility was allocated to the mother. I have therefore concluded that an order for equal shared parental responsibility would potentially assist in maintaining X’s relationship with each of the parents and ensuring that they both participate in making decisions about major long-term issues.
X’S LIVING ARRANGEMENTS
I will move now to X’s living arrangements. The mother wishes to continue to live with X in Melbourne and for the father to spend time with X each alternate weekend.
The father’s position is that X should live with him in Sydney. In the alternative, he proposes that the mother be compelled by the Court to cause X to live in Sydney with her. If the mother remains in Melbourne, he proposes that X live with him in Sydney.
Whilst I have made an order for equal shared parental responsibility, an order for equal time or substantial and significant time is not reasonably practicable whilst both parents live in different cities. It might become reasonably practicable if I were to make an order for one parent to live with X in the city where the other parent is located but that too would depend upon the distance from each other’s residence.
Each proposal carries significant positive and negative consequences for X.
The mother’s proposal
The strengths of the mother’s arguments include:
(a)X has always lived with the mother, and they share a strong bond.
(b)He would remain at his current school where the family report writer notes:
[X] appears settled and comfortable in his current school, talking positively about his experience there and his teachers with the Report Writer. The Report Writer would be hesitant to make any significant change to the status quo without evident of harm or harm risk to his ongoing safety. In his short life, [X] has experienced a lot of change and potential exposure to family violence. It is integral that he now has structure and routine as much as possible, as well as safety and stability.
(c)Remaining in Melbourne will provide X with some stability and avoid further upheaval.
(d)The mother would remain living along distance from the mother which might cause her less fear for her safety.
The concerns about the mother’s proposal for X to remain living with her in Melbourne include:
(a)The lack of support networks and family the mother has in Victoria.
(b)The inability of the father to provide the mother with respite and ongoing support with X’s parenting if they remain in Melbourne.
(c)The unknown state of the mother’s mental health and wellbeing, in particular, the anxiety attacks she suffers from and how this might impact on her parenting capacity.
(d)The mother may not promote a relationship between X and the father while he remains so far away.
(e)There is a current and ongoing concern that the mother’s capacity to provide for X’s basic needs like food and housing and education.
(f)The mother’s mental health may worsen, and this will further impact upon her parenting capacity and her ability to attend to X’s day-to-day needs.
(g)The father cannot provide the same safety net from Sydney. For example, the mother does not pack food for X to take to school. The father is too far away to assist.
(h)There are obvious practical difficulties and expenses in X spending time with the father if he remains living in Sydney. These difficulties have been present for to some time.
The father’s proposal
I will move to the father’s proposal. The strengths of the father’s proposal for X to live with him in Sydney include:
(a)The father has secure, appropriate, and long-term housing for X.
(b)The father is financially secure.
(c)The father, with the support of Ms F, his wife, will ensure that X’s day-to-day needs are met.
(d)The father has demonstrated a willingness to support X’s relationship with the mother.
The concerns about the father’s proposal for X to live with him in Sydney include:
(a)The father’s capacity to care for X and how X would fit into his household is untested.
(b)X may find the separation from his mother and life in a new household distressing because he has always lived with his mother. This view is strongly supported by the family report writer.
(c)The impact it would have on the mother and her ability to maintain a meaningful relationship with X because:
(i)She might remain in a financially precarious position. This raises concerns about her ability to travel to Sydney to visit X on a regular basis; and
(ii)Of the negative impact it might have on her mental health which, in turn, impacts on her parenting capacity.
Conclusions about which parent X should live with
The determination of which parent X should live with is a finely balanced one.
The father presents a very cohesive plan for X’s future if an order was made that X live with him.
Whilst the father has not cared for X on a full-time basis before, he has taken steps to prepare himself for X spending more time with him. The father has undertaken the Parenting After Separation and Circle of Security course. He has also lived in a household with two teenaged boys since 2018.
I have no concerns about the father’s ability to physically care for X in his household.
I am concerned about the mother’s ongoing capacity to provide for X’s needs. The mother’s current circumstances are concerning. She is unemployed, she has no permanent accommodation, and reports feeling stressed and suffering from anxiety. There is no evidence that she is receiving any treatment for anxiety. She was unable to arrange a mental health assessment as recommended by the family report writer. Despite there being no current mental health assessment, there are indicators that her parenting capacity is currently impaired. Those indicators include:
(a)X’s poor attendance at school, including late arrivals in circumstances where the mother is not employed, and they walk to school.
(b)X regularly attending school with inadequate water and without food or water.
(c)X complains that the mother harshly disciplines him.
(d)The lack of activities or social engagement for X and the mother.
(e)The lack of family supports in place for X in Melbourne.
(f)The absence of details about future plans for the mother and X.
These circumstances led the family report writer to express a concern that, if the mother does not receive intensive support and if her circumstances remain the same, there is a real risk that she ends up or X ends up on the radar of the child protection system.
Clearly, X has lived in the mother’s care his entire life and shares a close and loving bond with her. I accept the evidence of the family report writer that it would not be in X’s best interests to remove him from the mother’s care unless he was at risk of harm. She found that X has experienced great change in his life and was reluctant to make recommendations that would involve further upheaval for X. She continued to express this view at the final hearing.
I am satisfied that X would like to spend more time with his father. However, this is not surprising, given the current circumstances where they reside in different capital cities, in different states and have only spent limited time together over the last two years. When they do spend time together, the father lavishes X with gifts and love and affection.
But, on balance, I cannot be satisfied that X’s current circumstances are so concerning that he should be placed in the father’s care, especially if his mother were to remain in Melbourne. I am left to conclude that it is in X’s best interests that he main living with his mother, but I am also concerned about their current circumstances in Melbourne and X’s isolation, should his father remain living in Sydney.
SHOULD THE MOTHER BE REQUIRED TO RELOCATE WITH X TO SYDNEY?
For the father, a relocation to Melbourne is not possible. He has remarried. He has two stepchildren who are of high school age. Both he and Ms F are in stable long-term positions of employment. Furthermore, they reside in an unencumbered house by Ms F. He argues that it would not be unreasonable to order the mother to return to Sydney to live with X because:
(a)she has never been engaged in employment in Melbourne;
(b)she has no permanent accommodation in Melbourne; and
(c)she has no family and social ties in Melbourne.
The mother was asked on several occasions if she was prepared to move to Sydney. She expressed a preference to remain living in Melbourne. Her evidence was that she had not decided what she would do if X was ordered to live in Sydney. I note that her Case Outline document indicated that she would relocate to Sydney if ordered (at paragraph 20):
She has a particularly strong bond with the child and, if the court were to order the child relocate to Sydney, despite her fears, she would do so. However, she believes this would relocate her to a world of fear from which she has successfully fled. It is relevant to consider what effect this may have upon her parenting.
(As per the original)
A parent is entitled to live where they choose and does not need to demonstrate “compelling reasons” to live where they propose to live (AMS v AIF; U v U; Adamson at [65] and [66]). However, since the best interests of the children are paramount and whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the paramount consideration (U v U at [89]).
In Sampson & Hartnett (No 10) (2007) FLC 93-350 (“Sampson & Hartnett”), the Full Court held that the Court has the power to require the relocation of a parent. However, such a move would be rare and “at the extreme end of the discretionary range” (Sampson & Hartnett at [84]).
In Franklyn, the Full Court considered the tension between parent’s freedom of movement with restraints that might be placed on them where they reside to avoid any impingement on their children’s ability to retain meaningful relationships with both parents, observing at paragraphs 27 and 28:
27. … The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act. Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children. Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests.
(Citations omitted)
The father’s position is that relocation will benefit X in that it will enhance the primary care of X by providing him with emotional and practical support.
An order compelling the mother to move to Sydney may have the following negative impacts on her:
(a)The mother would need to find new accommodation in a different city and one that is experiencing similar housing challenges to those the mother has been dealing with in Melbourne.
(b)Her mental health may deteriorate because she is living in closer proximity to the father.
(c)The mother would move away from the support services she has relied upon in Melbourne and would have to find new ones in Sydney.
(d)The mother has no readily apparent financial resources and may find the requirement to move and re-establish her life in Sydney financially challenging.
(e)There will be further disruption to her life.

An order requiring the mother to move to Sydney with X would be in X’s best interests because:
(a)The mother would receive enhanced support from the father.
(b)There will be greater opportunities for X to pursue extracurricular activities by reasons of the father’s income and resources.
(c)The father would have more ability to have oversight and involvement in X’s day-to-day care, such as his attendance at school.
(d)The geographical distance between the parents would no longer impact on X’s relationship with his father if relocation is supported by the court.
Conclusions about relocation
This is ultimately a matter where considerations around X’s best interests weigh heavily against arguments supporting the mother’s freedom of movement. For this reason, the ICL supported the position that X should live in Sydney.
Having weighed up and balanced the impact on the mother’s freedom of movement with X’s best interests, I am of the view that this is a somewhat rare and extreme circumstance which justifies a coerced relocation to Sydney.
I cannot rule out the possibility that, without the Court’s oversight, the mother will not encourage a meaningful relationship between X and the father in the future. I observed that the mother has been resistant to promoting a meaningful relationship between X and the father since they moved to Melbourne. It is possible that the mother has not promoted their relationship because of her fears and vulnerabilities – this is understandable in the context of the family violence she experienced. I cannot discount the possibility that the mother has not promoted a meaningful relationship because doing so might increase the father’s prospects of success in these proceedings. Now that the proceedings are at an end, her attitude might change. But there is a risk that the meaningful relationship that has now developed between X and the father might be undermined by the mother if they continue to live in different cities.
In reaching my decision I have considered what orders are appropriate to make, given my findings that the father has engaged in family violence. I note that while the father has undertaken parenting programs, he did not engage in any behaviour change programs. He was also reluctant to accept full responsibility for the family violence that occurred during the relationship. There is a risk that placing X in his care for extended periods of time could allow the father to provide unacceptable role-modelling for X in terms of family relationships and the use of violence. I am, however, satisfied that the father demonstrated insight into his past behaviour and relationship with the mother. I take comfort in the evidence given by Ms F and the matters contained in the single expert report of psychologist Mr G.
THE TIME X SHOULD SPEND WITH THE FATHER
The ICL was of the view that, if the mother is ordered to relocate to Sydney with X, then the parties should work towards a share care arrangement in a graduating fashion.
It was proposed that I make orders incrementally increasing the father’s time with X, so that it becomes an equal time arrangement within five months of X’s arrival in Sydney.
An order for equal time or substantial and significant time can only be made if it is reasonably practicable to do so. It is difficult to consider the reasonable practicability of the father and ICL’s proposal when the mother has understandably not contemplated a return to Sydney, nor committed to it.
To make an order that X spend equal time with each parent requires evidence about the parties’ living arrangements and their ability to co-parent X. Presently, most of the evidence before me only highlights a level of conflict and distrust inconsistent with the necessary foundations to make an equal time order.
It would also be contingent upon how X adjusts to spending longer periods of time with his father and in his father’s household. Whilst I have an obligation to make orders that would be least likely to lead to the institution of further proceedings, my overriding obligation is to ensure that the orders I make are in X’s best interests.
There was insufficient evidence available to me about the impact that this would have on X, especially at the age of six. In fact, the family report writer emphasised that X had experienced significant change in his short life and it would be in his best interests to focus on stability.
In the absence of submissions and sufficient evidence, I cannot conclude that the parties currently have a sufficient capacity to make an equal-time arrangement work.
I am, however, satisfied it would be in X’s best interests to have his time with the father gradually increase to what might be described as substantial and significant time. Accordingly, I will make an order that X spend time with his father from Term 2 in 2024 every alternate weekend from Thursday after school until Sunday at 5 pm. In line with the recommendations of the family report writer to make orders for X that provide structure and routine, as well as safety and stability, I am disinclined to make orders that introduce monthly changes. Rather, the time X remains in the father’s household will extend only once, being at the start of the 2025 school year, when it will then increase to commence each alternate Wednesday after school and conclude before school the following Monday.
On balance, it seems that X’s school will provide a sensible changeover location. For changeovers on non-school days, the mother will nominate the changeover location to the father, provided it is within a 15-kilometre radius of D School.
The ICL and the father proposed an order that X be enrolled in D School. This is for a good reason. The father lives one suburb away in Suburb S and the school is five minutes from his home. The school’s proximity to the father’s home will allow him and his family to be available to provide support to the mother and X.
Sydney is a large city and if the mother relocates to an area some distance from the father, he might be unable to support X in the manner envisaged when the order compelling the mother to move to Sydney was made.
The mother has no accommodation in Sydney and will most likely have to approach services in Sydney with a request to provide temporary accommodation on an emergency basis. I anticipate that her ability to find temporary or permanent accommodation in Sydney is as problematic here as it is in Melbourne.
Ultimately, I am persuaded to make an order for X to attend D School because it will allow the father to be available to support X and his needs.
However, to ensure that this requirement does not unduly impact on the mother’s ability to find suitable housing for herself and X, I will allow the mother to propose to the father an alternative school for X to attend, provided that school is located within a 15-kilometre radius of D School and within a three-kilometre radius of her ultimate residential location.
The mother is unemployed and relies upon government benefits for her support. She gave evidence that she was assisted by the domestic violence service to travel to the Sydney registry with X for the final hearing. I have no information about the support services, if any, that might assist the mother with a relocation to Sydney. For this reason, I am not prepared to require her to relocate on short notice. She will be required to relocate by Monday, 22 April 2024, that is, within a period of around three months.
While I am not prepared to bind the father by way of order, I would encourage him to consider what support he might offer the mother and X to assist with their relocation. This might take the form of financial assistance, scouting and sourcing accommodation, or assistance with transportation and household items.
If X does attend D School, no doubt being his local school, the father can assist with X’s enrolment and source uniforms and school supplies. I intend making an order that requires the father to obtain school uniforms for X and to pay the school fees associated with X’s attendance at D School. This will relieve the mother of some of the financial burden associated with relocating to Sydney and support a positive transition to a new school for X.
I will also extend the appointment of the ICL for six months. I do not do so lightly, appreciating that the ICL is a publicly funded service and that the ICL may not be reimbursed for additional work undertaken. However, it is in X’s best interests that his mother receives whatever support is available to her to assist her to both relocate and rebuild her life in Sydney.
The ICL proposed an order that the mother, within 21 days, file a treatment report from a mental health practitioner. I am not prepared to make this order. The mother does not have a treating mental health practitioner. When she moves to New South Wales, she will need to obtain a referral from a GP and she no doubt will encounter delays in obtaining treatment. Even if she did obtain a report, I have been asked to make final orders on the information available to me now. I see no utility in obtaining a report for the purpose of these proceedings as they are now at an end. I will, however, make an order requiring the mother to consult with a GP within 30 days of relocating to New South Wales for the purpose of obtaining a referral for a mental health assessment and/or mental health treatment plan.
An order will also be made requiring the ICL to take whatever steps are necessary to support X and the mother with their transition to Sydney, including referring the mother to a family support service, such as the E Program. The mother will also be required to engage with any support services that she is referred to by the ICL.
I note the mother has consented to receiving assistance from the Family Advocacy and Support Service attached to this Court and I thank them for their assistance. I will formally make an order allowing this published judgment and the orders made to be provided by the mother to any support service she is engaged with for the purposes of receiving assistance with their implementation.
It was proposed that in the event that the mother does ensure that X is living in Sydney by the nominated date, an order be made that he live in Sydney with his father. In my view, such an order would be contrary to the findings that have been made and conclusions reached. If an issue regarding the enforcement of these orders arises in a six-month period following the making of these orders, I grant leave for such an application to be listed before me.
THE ICL’S COSTS
On the final day of the hearing counsel for the ICL made an oral application for costs, tendering a Costs Notice that noted total costs of $15,761 incurred by the ICL. I reserved the decision in relation to the application for costs.
Pursuant to s 117(2A) of the Act, a Court must have regard to certain factors when an ICL seeks costs, including the financial circumstance and conduct of the parties during the proceedings. I have noted in this judgment that the mother is of limited financial circumstances and currently relies on government and social benefits to support herself. She receives $528 a month in child support from the father. The father deposes he earns approximately $1150 per week and his expenses are around $525 a week. Although he has the support of Ms F, who is also employed, there is no evidence before me about their financial arrangements or the extent of Ms F’s financial contribution to their marriage. They also have the care of two teenage boys.
Additionally, the parties must now prepare and organise for X’s relocation to Sydney, as well as paying for any costs associated with such a move, such as enrolment and attendance at a new school.
As such, in these circumstances, and pursuant to the discretion afforded to the Court under s 117(4)(b) of the Act, I will not make an order that either party pay or shares the ICLs costs.
I do, of course, acknowledge the enormous assistance of the ICL to the Court and to X in this matter.
CONCLUSION
This has been a very difficult and unusual case to determine. Balancing all the considerations, taking into account the advantages and disadvantages of the competing proposals and weighing all of the matters up, I am satisfied that the orders I make are in X’s best interests.

I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Beckhouse.
Associate:
Dated: 31 January 2024

File number(s):	SYC 5320 of 2021
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	23 January 2024
Catchwords:	FAMILY LAW – PARENTING – Best interests of the child – Coercive order made for the mother to return to Sydney from Melbourne with the child – Court determined that rare and extreme circumstances established
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 65DAA
Cases cited:	Adamson & Adamson (2014) FLC 93-622 AMS v AIF (1999) 199 CLR 160 Franklyn & Franklyn [2019] FamFAFC 256 Morgan & Miles [2007] FamCA 1230 MRR v GR [2010] HCA 4 Oswald & Karrington [2016] FamCAFC 152 Sampson & Hartnett (No 10) (2007) FLC 93-350 U v U (2002) 211 CLR 238
Division:	Division 2 Family Law
Number of paragraphs:	205
Date of last submission/s:	21 December 2023
Date of hearing:	18, 19, 20 and 21 December 2023
Place:	Sydney
Counsel for the Applicant:	Mr Fermanis
Solicitor for the Applicant:	First Choice Family Lawyers
Counsel for the Respondent:	Mr Wilkinson
Solicitor for the Respondent:	Winder Lawyers
Counsel for the Independent Children's Lawyer:	Ms Hayward
Solicitor for the Independent Children's Lawyer:	Hazim & Co Lawyers Pty Ltd

SYC 5320 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR NIHAL Applicant
AND:	MS NIHAL Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	23 JANUARY 2024