Roberts & Liang - [2021] FedCFamC1F 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Roberts & Liang [2021] FedCFamC1F 44

File number(s): DGC 1163 of 2016

Judgment of: JOHNS J

Date of judgment: 5 October 2021

Catchwords: FAMILY LAW – CHILDREN – best interests – international relocation – where the applicant is the primary carer of the child – where the applicant seeks a continuation of the status quo – where the respondent is seeking a change of residence and that the child be permitted to relocate with her to Country F – where the applicant is not the biological father – where the child’s biological father lives in Country F and is not a party to the proceedings – where the biological father supports the respondent’s application – where relocation of the child is determined not to be in her best interests

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DA, 61DA, 64B, 65C, 65DAA

Family Law Rules 2004 (Cth) r 5.06

Cases cited:
Aldridge & Keaton (2009) FLC 93-421

AMS v AIF (1999) 199 CLR 160 at 207-208

Cottey & Backe (No. 2) [2020] FamCAFC 206

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

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

Mulvany & Lane (2009) FLC 93-404

U v U (2002) 211 CLR 238

Division: Division 1 First Instance

Number of paragraphs: 406

Date of last submission/s: 10 December 2020

Date of hearing: 22-25 July 2019 and 2-5 March 2020 and 7 September 2020 and 15 October 2020

Place: Melbourne

Counsel for the Applicant: Ms Swart

Solicitor for the Applicant 22, 23, 24 and 25 July 2019: Sharrock Pitman Legal

Counsel for the Respondent 22, 23, 24 and 25 July 2019: Ms Devine

Counsel for the Respondent 2, 3, 4 and 5 March 2020: Mr Robertson

Counsel for the Respondent 7 September and 15 October 2020: Mr Whitchurch

Solicitor for the Respondent 22, 23, 24, 25 July 2019 and 2, 3, 4 and 5 March 2020: Southern Family Law

Counsel for the Independent Children's Lawyer: Mr O’Connell

Solicitor for the Independent Children's Lawyer: McCormack & Co
ORDERS

DGC 1163 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ROBERTS

Applicant

AND:
MS LIANG

Respondent

MCCORMACK AND CO

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

5 OCTOBER 2021

THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged, save for orders 12 to 15 inclusive of the orders of the Federal Circuit Court at Dandenong dated 29 June 2016 (“the Watch List orders”) which shall continue with full force and effect.
2.That the applicant have sole parental responsibility for the child X born … 2014 subject to order 3 hereof.
3.That the applicant shall seek the views of the respondent, MS LIANG via email no less than 14 days prior to making a long-term decision with respect to the child and in the event that the respondent provides her view or opinion with respect to the proposed decision to the applicant in writing he shall take into consideration that response prior to implementing any decision.
4.That the applicant notify the respondent of any decision taken in relation to the child’s long-term care, welfare and development within seven days of implementing the same.
5.That the child live with the applicant.
6.That the child spend time and communicate with the respondent as follows:-
(a)Each alternate week during school terms from the conclusion of school on Thursday to the commencement of school on Friday commencing 7 October 2021;
(b)Each alternate weekend during school terms from after school Thursday until the commencement of school on Monday commencing 14 October 2021;
(c)For one half of all school term holidays at dates agreed between the parties and failing agreement for the first half of such holidays in 2021 and each alternate year thereafter and for the second half in 2022 and each alternate year thereafter;
(d)During the long summer holiday period for one half of the holidays at dates agreed between the parties and failing agreement for the first half of such holidays commencing in 2022/2023 holidays and each alternate year thereafter and in the second half of the 2021/2022 holidays and each alternate year thereafter, such holidays to conclude at 5.00pm two days prior to the commencement of the first term of school;
(e)During all school holiday periods the party with whom the child is spending time shall facilitate telephone communication between the child and the other parent on two occasions each week between 6.30pm and 7.00pm on days to be agreed and failing agreement each Monday and Thursday;
(f)On the Mother’s Day weekend from 5.00pm on the Saturday preceding Mothers’ Day to the commencement of school on the Monday following Mother’s Day;
(g)On the child’s and the mother’s birthday from the conclusion of school until 7.00pm if a school day and otherwise from 2.00pm to 7.00pm;
(h)At Christmas from 9.00am Christmas Eve to 1.00pm Christmas Day in 2021 and each alternate year thereafter and from 1.00pm Christmas Day to 5.00pm Boxing Day in 2022 and each alternate year thereafter;
(i)As may otherwise be agreed between the parties from time-to-time.

7.That the respondent’s time with the child be suspended as follows:-
(a)On Father’s Day from 5.00pm on the Saturday preceding Father’s Day to the commencement of school on Monday;
(b)In the event that the child is in the respondent’s care on the applicant’s birthday or the child’s birthday from after school to 7.00pm if a school day and otherwise from 2.00pm to 7.00pm if a non-school day;
(c)At Christmas from 9.00am Christmas Eve to 1.00pm Christmas Day in 2022 and each alternate year thereafter and from 1.00pm Christmas Day to 5.00pm Boxing Day in 2021 and each alternate year thereafter.

8.That all changeovers that do not occur at the child’s school shall take place at McDonald’s Suburb B whilst the mother resides in that area or such other place as may be agreed between the parties from time-to-time.
9.That within 14 days the respondent do all such acts and things as may be required to surrender to the applicant all passports in the name of the child or in the name “X” including but not limited to Country F passport number …, Country E passport number … and Australian passport number ….
10.That within seven days each party notify the other in writing of their current residential address and contact email address and telephone numbers and notify the other of any change to those details within seven days of such change occurring.
11.That each party notify the other as soon as practicable in the event that the child attends a medical practitioner for any illness or injury sustained by her when in their care and notify the other party as to the diagnosis, treatment and/or management plans.
12.That the respondent be permitted to communicate with the child’s school and to receive information regarding her progress including but not limited to school reports, photographs and newsletters.
13.That the respondent be permitted to attend at school events that parents would ordinarily be invited to attend.
14.That each party be and is hereby restrained by themselves, their servants and agents from:-
(a)discussing or disclosing details of these proceedings, the evidence adduced in these proceedings or any other matters related to these proceedings in the presence or hearing of the child and from permitting any other person to do so;
(b)abusing, belittling, insulting or rebuking the other to the child or in her presence or hearing of the child and from permitting any other person to do so.

15.That the Independent Children’s Lawyer be discharged at the expiration of 30 days from the date of these orders.
16.That all extant applications be otherwise dismissed.
17.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

The applicant, Mr Roberts, and the respondent mother, Ms Liang, seek parenting orders in relation to the child X, aged seven.
The mother seeks orders that the child live with her and that she be permitted to relocate with the child to live in Country F with the child's biological father, Mr Deiters. The applicant opposes that application and seeks a continuation of the existing arrangements, namely that X live with him and spend time with the mother.
The applicant and the mother married in 2010 and X was born in 2014. The date of separation is disputed, although it is common ground that the mother was X's primary carer for the first 18 months of her life.
Since late 2016, when X was aged approximately 19 months, she has lived primarily with the applicant who, although married to the mother at the time of the child's conception and birth, is not the child's biological father.
The applicant's case is that he believed he was the child's father until parentage testing confirmed otherwise. This is disputed by the mother who contends that the applicant was aware prior to the commencement of the proceedings that he had no biological connection to the child. Notwithstanding that dispute, I accept that the applicant has undertaken a parenting role in X's life since her birth.
Proceedings were commenced in the Federal Circuit Court of Australia by the applicant in April 2016. The parties attended a Child Inclusive Conference with Family Consultant McCarthy in June 2016. At that stage the applicant sought that the child continue to live with him and spend regular and frequent time with the mother. The mother's position was that the child live with her and spend two nights per week with the applicant; at that time, there was no application by her to relocate with the child to Country F.
In her Response to Application for Final Orders filed 23 August 2016 the mother sought orders for parentage testing, alleging that the applicant was not the child's biological father. Curiously, that issue was not raised by the mother at the earlier hearings or the Child Inclusive Conference. Orders were made for parentage testing which confirmed that the applicant is not the biological father of the child.
The child's biological father, Mr Deiters, who resides in Country F, was named as the second respondent in these proceedings following receipt of the results of the parentage testing. He participated in the proceedings until shortly prior to the original listed trial date. Although Mr Deiters withdrew from the proceedings prior to the commencement of the final hearing, he supports the mother's case.
The trial was heard over 11 days spanning a period of approximately 15 months, the matter having been adjourned part-heard on three separate occasions. That the matter occupied such a lengthy period was largely due to the multitude of factual issues sought to be ventilated by the parties, particularly the mother. Those issues included:-
·Whether the applicant knew he was not the child's biological father prior to the commencement of the proceedings;
·The circumstances of the parties' marriage;
·The nature of the relationship between the applicant, the mother and the mother's sister, Ms J;
·Whether the applicant and the respondent were cohabiting at the time of the child's birth;
·Whether the applicant was present at the child's birth;
·Whether the applicant sexually abused the child or whether those allegations were manufactured by the respondent to advance her case;
·Whether Mr Deiters is the biological father of the mother's son, G, who was born after the proceedings commenced.
Many of the issues raised had little bearing on the principal issue, namely the determination of what parenting arrangements are in X's best interests. Indeed, it is not necessary for me to make findings in relation to many of those issues in order to determine what is in X’s best interests. Nonetheless, the mother's focus on the pursuit of those issues, notwithstanding indications from the bench as to questions of relevance, meant that the duration of the hearing was protracted.
These are my Reasons for Judgment with respect to the parties' competing applications for parenting orders.
THE PARTIES
The applicant was born in Melbourne and is aged 51. The applicant is currently employed in allied health.
The mother is aged 37. She was born in Country E and moved to Australia in 2010. The mother is a homemaker.
The child, X, is aged seven. She lives with the applicant and spends five nights per fortnight with the mother, pursuant to interim orders made by consent on 26 July 2019.
The applicant and the mother married in 2010 in Melbourne, Australia. The date of their final separation remains in dispute. The applicant maintains that the parties separated on 27 February 2016, whilst the mother contends that the parties separated in January 2013.
The biological father of the child, Mr Deiters, is aged 75 and lives in Country F. He is currently employed as an educator. Following receipt of results of parentage testing confirming he is X's biological father, Mr Deiters was named as the second respondent in the proceedings.
In January 2019, shortly prior to the listed trial date, Mr Deiters filed a Notice of Discontinuance. As a consequence, his only role in the proceedings at final hearing was as a witness for the mother.
In 2018 the mother had another child, G, who is now three years old. G lives with the mother. The mother's evidence is that Mr Deiters is G's father, albeit that parentage testing has not been undertaken to confirm G's parentage. Mr Deiters confirmed during his oral evidence that such testing would be required upon G's relocation to Country F. Whilst G is not a child of these proceedings, he is X's only sibling.
The mother deposes that she and Mr Deiters are currently in a relationship and she wishes to relocate to Country F with X and G to live with Mr Deiters. The mother and X travelled to Country F and spent time with Mr Deiters on several occasions between November 2014 and February 2016 and Mr Deiters travelled to Melbourne on three occasions during 2017.
X has spent no time with Mr Deiters since December 2017 when she was aged approximately 3 years and 5 months. G has spent no face to face time with Mr Deiters since his birth. The mother's evidence is that X currently communicates with Mr Deiters via "WhatsApp" when she is in the mother's care.
BACKGROUND
This matter has a long and complex history, much of which is disputed between the parties.
The applicant and the mother met in Country E in around 2008, having been introduced by the mother's sister, Ms J ("Ms J"). The applicant deposes that he was in a relationship with Ms J at the time he met the mother.
The applicant deposes that in July 2010 the mother moved to Melbourne to live with him. He alleges that he supported the mother's move to Australia at the behest of Ms J. Following her arrival in Australia, the applicant deposes that he commenced a sexual relationship with the mother. He also deposes that his relationship with Ms J continued, albeit that she lived and worked in Country F.
There is much dispute between the parties as to the nature of the relationships the applicant had with the mother and Ms J, the applicant contending that he was in a relationship with Ms J from 2008, whilst Ms J deposes that although the applicant expressed his desire to have a relationship with her, she rejected those advances. In her trial affidavit filed 8 March 2018 the mother deposes as to her knowledge of the intimate relationship between the applicant and Ms J.
Whilst little turns on those issues in the determination of the parenting dispute, those issues dominated much of the oral evidence at trial. Much of the mother's case focussed on undermining the applicant's credibility, claiming that he always knew he was not the child's father, that his relationship with the mother ended in 2012, that he manipulated the mother into participating in a traditional Country E wedding so as to perpetuate his representations to his friends and family that in fact he was married to Ms J.
For the reasons set out later in this judgment, I am satisfied that Ms J and her husband, Mr K, have deliberately mislead this Court as to the nature of their relationship with each other, and in relation to Ms J, as to her relationship with the applicant. I am also satisfied that the mother was aware of and complicit in that deception. Given my findings with respect to those matters, I prefer the evidence of the applicant as to the circumstances of his relationships with Ms J and the mother.
I accept that the applicant was infatuated with Ms J, that he actively pursued a relationship with her and that Ms J influenced his actions in commencing and maintaining a relationship with the mother.
Even if wrong with respect to aspects of the adult relationships, I am in no doubt that the applicant and the mother are both devoted to and love X and it is their commitment to her care that has driven their pursuit of these proceedings.
In 2013, the applicant and the mother held a Country E wedding ceremony and celebration with the wife's family, including Ms J, in Country E. The circumstances surrounding this occasion are disputed.
In 2013, the mother deposes that she travelled to City H, Country F, to visit Ms J. The mother deposes that she commenced a romantic relationship with Mr Deiters during this trip, before returning to Australia in early October 2013.
The mother deposes that upon her return to Australia, in or around October 2013, she discovered that she was pregnant; she deposes that at the time she did not know if the biological father was Mr Deiters, or another man in Australia, Mr L, with whom she had also been having a romantic relationship.
The mother deposes that she advised the applicant that she was pregnant in 2013. The mother's evidence is that the child could not have been the applicant's, as the parties had not been sexually intimate since late 2012. The applicant disputes that contention, maintaining that the parties engaged in sexual relations in 2013 when in Country E for their traditional wedding.
The applicant deposes that he was informed by Ms J of the mother's pregnancy in early 2014, and he believed that he was the father. The child was born in 2014. The applicant was not named as the father on the child's birth certificate.

On 26 December 2014, the applicant signed a statutory declaration (Exhibit R-3) which states that he is not the child's father. The circumstances surrounding the execution of the statutory declaration are disputed, the applicant maintaining that he executed the document at the mother's request to assist her in obtaining Centrelink benefits. The applicant maintains that until the parentage test was undertaken by him in 2016, he believed that he was X's father.
The applicant deposes that the parties finally separated on 27 February 2016, when the mother moved out of their shared residence.
It is common ground that the mother was the primary carer of the child from her birth until February 2016. Since 27 February 2016, the applicant deposes that he has had the primary care of the child, and the mother spent approximately one night per week with X until interim orders were made in June 2016. The mother concedes that the applicant assumed primary care of X on 1 March 2016. Whilst there is a significant dispute between the parties as to why the mother left X in the applicant's primary care, the mother concedes that she agreed that he could have her primary care for a period of three months.
Following the child being placed into the applicant's care, the mother deposes that she was only able to see the child on approximately five occasions before interim orders were made in June 2016.
These proceedings commenced when the applicant filed an Initiating Application in the Federal Circuit Court of Australia on 21 April 2016 seeking final parenting orders in relation to the child.
Following an altercation between the parties at the applicant's residence, the mother obtained an interim intervention order against the applicant on 17 June 2016. On 19 June 2016, police attended the applicant's property to remove the child and place her into the mother's care.
The matter first came before the Federal Circuit Court on 28 June 2016. That day, Judge Harland made orders pursuant to s 11F providing for the parties to attend upon Child Dispute Services for a Child Inclusive Conference.
The following day, 29 June 2016, the Child Inclusive Conference Memorandum to Court was released and Judge Harland made interim orders which provided, inter alia, as follows:-
…
(4)The child be returned to the [applicant] on 29 June 2016.
…
(6)The child live with the [applicant].
(7)The child spend time with the mother as follows:
(a)Commencing 6 July 2016, every Wednesday from after childcare until 5.00pm on Thursday;
(b)Commencing 9 July 2016, every alternate Saturday from 9.00am until Monday morning before child care.
…
Further orders were made that day by consent, which provided for the child to be placed on the Airport Watch List and restrained from leaving Australia.
The matter returned to the Federal Circuit Court on 27 September 2016. On that day, Judge Harland ordered that the parties undergo a parentage testing procedure to ascertain whether the applicant was the child's biological father.
The applicant deposes that in or around November 2016, he undertook a parentage test and discovered that he was not the biological father of the child. Further testing was undertaken in February 2017, confirming that Mr Deiters was in fact the child's biological father.
On 14 February 2017, Mr Deiters was joined to the proceedings as the second respondent, pursuant to orders made by Judge Harland. The matter was set down for final hearing before her Honour, commencing 31 July 2017 as a four day matter.
On 8 March 2017 the final hearing in the Federal Circuit Court was vacated and the proceedings were transferred to the Family Court.
The matter came before me on 10 November 2017. On that day, I made orders for the preparation of a family report and a psychiatric assessment of all parties.
The applicant deposes that on 15 December 2017, in the Magistrates' Court, the child and the applicant were granted a five year intervention order against the mother.
Although it had been anticipated that the final hearing would proceed in 2018, due to the failure of the parties to comply with trial directions and the birth of the mother's second child, the listing of the final hearing was delayed.
On 10 January 2019, Mr Deiters filed a Notice of Discontinuance. As a result, on 30 April 2019 orders were made removing Mr Deiters as the second respondent. Further orders were made that day to set the matter down for final hearing before me to commence on 22 July 2019, as a five day matter.
The final hearing commenced on 22 July 2019 and proceeded over four days. Although the hearing was listed to resume in November 2019 the mother sought and obtained an adjournment of the hearing due to her loss of legal representation. The hearing resumed part-heard on 2 March 2020 for a further four days. The matter was again adjourned part-heard and due to the interruption caused by the global pandemic did not resume before me until 7 September 2020. Due to witness availability, the matter was further adjourned part-heard and the evidence concluded on 15 October 2020.
Directions were made for the filing of written closing submissions. Unfortunately the matter was further delayed due to illness befalling the mother's Counsel, which necessitated the extension of time for the filing of those written submissions.
DOCUMENTS RELIED UPON
The applicant relies upon the following documents:-
·Case Outline filed 15 July 2019;
·Amended Initiating Application filed 25 August 2017;
·Affidavit of the applicant filed 16 February 2018;
·Affidavit of the applicant filed 20 September 2018;
·Affidavit of the applicant filed 18 June 2019;
·Affidavit of Ms M filed 21 September 2018;
·Affidavit of Dr D filed 19 July 2018;
·Financial Statement filed 20 September 2018;
·Written Submissions filed 27 November 2020; and
·Exhibits A-1 – A-6, being documents tendered during the course of the hearing.
The respondent mother relies upon the following documents:-
·Amended Response to Initiating Application filed 7 September 2017;
·Respondent's Outline of Case filed 15 July 2019;
·Affidavit of the respondent filed 8 March 2018;
·Affidavit of the respondent filed 20 August 2018;
·Affidavit of the respondent filed 21 May 2019;
·Affidavit of Ms J filed 8 March 2018;
·Affidavit of Ms J filed 22 May 2019;
·Affidavit of Mr K filed 21 May 2019;
·Affidavit of Mr N filed 8 March 2018;
·Affidavit of Mr Deiters filed 22 May 2019;
·Affidavit of Dr O filed 1 August 2018;
·Written Submissions filed 12 November 2020;
·Reply to Written Submissions filed 10 December 2020; and
·Exhibits R-1 – R-34, being documents tendered during the course of the hearing.
The ICL relies upon the following documents:-
·Outline of Case filed 19 July 2019;
·Affidavit of Dr D filed 19 July 2018;
·Affidavit of Dr D filed 30 October 2019;
·Affidavit of Dr O filed 1 August 2018;
·Written Submissions filed 26 October 2020; and
·Exhibits ICL-1 – ICL-6, being documents tendered during the course of the hearing.
ORDERS SOUGHT
Due to the nature and length of the proceedings, the orders which each of the parties sought changed over the course of the final hearing. For example, the mother’s position until shortly prior to the evidence of Dr D was that she intended to relocate to Country F whether or not orders were made for the child to live with her; that is, her proposal was that the child live with the applicant in the event that the application to relocate did not succeed. By the conclusion of the evidence the mother’s position shifted such that she confirmed she would not relocate to Country F were that part of her application unsuccessful.
Each party confirmed the orders sought by them in their closing submissions.
The applicant confirmed in his closing submissions, filed on 27 November 2020, that he sought orders in the terms of the Minute of Orders filed 26 October 2020, which provide as follows:-
(1)All previous parenting orders be discharged save for Orders 12 to 15 inclusive of the Orders of the Federal Circuit Court at Dandenong made 29 June 2016 ("the Watch List Orders") which shall continue in full force and effect until further order.
Parental Responsibility
(2)THAT the Applicant … have sole parental Responsibility for the child X born … 2014 ("X"), subject to order 3.
(3)THAT the [Applicant] shall seek the views of the Respondent …via email prior to making a long term decision with respect to [the child] and shall take into consideration her views and opinions. The [Applicant] shall keep the Mother informed as to decisions he makes with respect to long term issues for [the child].
(4)THAT [the child] is to attend at P Medical Centre at Q Street, Suburb R as her primary healthcare provider AND THAT the Mother be and is hereby restrained from attending with [the child] upon any other medical practitioner or healthcare provider unless in the case of emergency.
(5)THAT each party immediately notify the other if [the child] attends a medical practitioner for any form of illness, injury and/or is admitted to hospital during their care from time to time and provide details to the other party as to treatment and or management plans.
(6)THAT each party will ensure that they administer medication prescribed to [the child] as and when directed by the prescribing doctor and advised by the other party from time to time.
Living Arrangements
(7)THAT [the child] live with the [Applicant].
(8)THAT [the child] spend time with the Mother as follows:
(a)Each alternate week during school terms from the conclusion of school on Thursday until the commencement of school on Friday; and
(b)Each alternate weekend during school terms from after school Thursday until the commencement of school on Monday.
(c)for a period of seven days during each term school holiday as agreed, and unless otherwise agreed from 9:30am the first Saturday until 9:30am on the second Saturday.
(d)during the Summer School Holidays, [the child] spend half the school holidays with the Mother as agreed and if no agreement can be reached then on a week about arrangement commencing from the 9:30am on the first Saturday of the Victorian Gazetted holiday period PROVIDED THAT if not already in the [Applicant's] care, [the child] is to return to the [Applicant's] care two (2) days prior to the commencement of the first term so as to settle and prepare for school.
(9)THAT communication during school holidays take place as follows:
(e)The [Applicant] be at liberty to call [the child] each third evening between 7:00pm and 7:30pm when in the Mother's care; AND
(f)That [the child] be able to call or message the Father requesting him to call her at any time; AND
(g)The Mother is to facilitate any such calls by ensuring her mobile phone is charged, turned on, and that [the child] is available to answer and provided with privacy to take the call.
(h)For the avoidance of doubt the following terms as used above are clarified as:
"each third evening" means that if time commenced on a Saturday (at any time) the third evening would be Monday and the next "third evening Thursday.
"privacy" means that the calls should not be placed on speaker phone, and that the Mother ought not be directing X how to respond within the telephone call.
(10)THAT in the event the Mother is unable or unwilling to care for [the child] for more than a 24 hour period that [the child] is to be returned to the care of the [Applicant].
Special Days
(11)THAT Special days shall take precedence over all other time pursuant to these Orders, as follows:
Mother's Day
(i)THAT each year [the child] spend time with the Mother on the weekend of Mother's Day from 5:00pm the Saturday until the commencement of school on Monday.
Father's Day
(ii)THAT each year [the child] spend time with the [Applicant] on the weekend of Father's Day from 5:00pm the Saturday prior until the commencement of school on Monday.
Birthdays (… and …)
(iii)THAT each year [the child] spend time with the [Applicant] from 5.00pm … until 9:00am on ….
(iv)THAT each year [the child] spend time with the Mother from 5.00pm in … until 9.00am on ...
X's Birthday (…)
(v)THAT [the child] spend time with the [Applicant] from the conclusion of school until 7.00pm (or from 2.00pm until 6.00pm if a non-school day) on …, if X is not already in the [Applicant's] care.
(vi)THAT [the child] spend time with the Mother from the conclusion of school until 7.00pm (or from 2.00pm until 6.00pm if a non-school day) on …, if X is not already in the Mother's care.
Easter
(vii)THAT [the child] spend time with the [Applicant] from 5:30pm on Easter Thursday until 9:00am on Easter Tuesday in even years, and with the Mother in odd years.
Christmas
(viii)THAT in 2019 and each alternate year thereafter [the child] spends time with the Mother from 9:00am on Christmas Eve until 1:00pm on Christmas Day and [the child] spends time with the [Applicant] from 1.00pm on Christmas Day to 5.00pm on Boxing Day.
(ix)THAT in 2020 and each alternate year thereafter [the child] spends time with the [Applicant] from 9:00am on Christmas Eve until 1:00pm on Christmas Day and [the child] spends time with the Mother from 1.00pm on Christmas Day to 5.00pm on Boxing Day.
Changeover
(12)Unless otherwise agreed, where changeover for time does not take place to or from school, it take place at McDonald's Suburb B while the mother lives at an address in the Suburb B area (and has provided that address to the [Applicant] or otherwise at the bus stop outside Suburb C Railway Station.
Travel not permitted outside Australia
(13)THAT the Country F Passport Number … in the name of [the child] be surrendered to the Family Law Courts Registry until further Order.
(14)THAT the Country E Passport Number … in the name of [the child] be surrendered to the Family Law Courts Registry until further Order.
(15)THAT the Australian Passport Number … in the name of [the child] and be released into the custody of the [the applicant].
General
(16)THAT the parties provide details of their current residential address and contact details to the other including any change of address, contact phone numbers and email addresses for the party or [the child] within seven (7) days of the change.
(17)THAT the Mother and [Mr Deiters], their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the [Applicant] to [the child] or in the presence or hearing of [the child], and from permitting any other person to do so.
(18)THAT the Mother and [Mr Deiters], their servants and agents be and are hereby restrained by injunction from denigrating and defaming the [Applicant] to or in the presence of any third party including but not limited to persons at any educational or recreational facility attended by [the child].
(19)THAT the Mother and [Mr Deiters], their servants or agents be and are hereby restrained by injunction from discussing or disclosing details of the court proceedings, matters, or otherwise any of the issues raised including related to paternity directly with [the child] or in the presence of [the child], and from permitting any other person to do so.
…
By written submissions filed 12 November 2020, the mother confirmed she sought orders as follows:-
(1)That all previous parenting and ancillary orders including the airport watch list orders be discharged.
(2)That the child … be permitted to relocate (the relocation) with the Respondent Mother (the Mother) and reside in Country F.
(3)That the Mother and the biological father … have joint parental responsibility for the child, save that the Mother shall keep the Applicant advised via email as to any matters regarding the child's long-term welfare.
(4)That the Mother provide to the Applicant as soon as practicable her intended date of relocation.
(5)That the child shall live with the Mother.
(6)That prior to relocation, the Applicant shall spend time with the child each alternate week on Saturday from 5.30pm until before school Wednesday or until 5.30pm if not a school day; with changeover either at school or from Suburb B.
(7)That following relocation the Applicant shall spend time with and communicate with the child as follows:
(a)In Australia:-
(i)During February each year for 7 days at times to be agreed
(ii)During August each year for 14 days at times to be agreed.
(b)In Country F, for holiday periods not more than twice a year at any time for not more than 10 days at a time, with the Applicant to provide the Mother with at least 4 weeks notice of his intention to spend time with the child, and he shall ensure the child attends school she is enrolled in during this time.
(c)By telephone or electronic means at all reasonable times, and the Mother shall facilitate this time ensuring the child has access to any such mode of virtual or telephonic communication.
(d)Via gift, card and letters with the Mother to ensure the Applicant is at all times aware of the Mother's postal and email address.
(8)That for the purpose of time referred to in Paragraph 7(a):-
(a)The parties are to agree in writing at least 50 days prior to the time occurring as to the child's date of departure and duration of time to be spent with [the Applicant].
(b)The Mother will make the travel arrangements and the biological father Mr Deiters will pay all costs associated with the child's return travel between Country F and Australia, and she shall provide to the Applicant copied of the travel documentation prior to the child's departure.
(c)The Applicant shall return the child to the Mother not less than 24 hours prior to the child's scheduled departure back to Country F. (with the Mother)
(9)The Applicant shall be responsible for the costs of his travel to spend time with the child in Country F.
(10)The child may contact the Applicant in accordance with her wishes at any reasonable time via telephone or electronic means of communication, gift, card and letter with the Mother to facilitate it at the child's request.
(11)The Mother is to provide to the Applicant the name of the child's school, her class schedule, contact details for the school and details of her extra-curricular activities.
(12)The Mother will make arrangements for the Applicant to be authorised to communicate with the child's school and to receive information as to her progress and welfare, and she shall provide to him the child's school reports, school photographs and any other documentation or information regarding the child's education.
(13)The Mother shall provide to [the Applicant] a selection of photos/videos of the child on a regular basis no less than once every month.
(14)The parties shall advise each other of any serious injury or illness affecting the child, and any medical issues which require treatment, medication or hospitalisation and the requirement for same.
(15)The Mother and the Applicant shall keep each other advised as to the child's residential and postal addresses, email address and contact telephone numbers.
(16)The parties shall do all things necessary to register these Orders in Country F.
THAT IN THE EVENT OF THE CHILD NOT BEING PERMITTED TO RELOCATE WITH HER MOTHER HER PROPOSED ORDERS ARE:
(1)That the Mother and her biological father Mr Deiters shall have joint parental responsibility for the child X born … 2014 (the child), save that they will keep the Applicant advised by email of any matters regarding the child's long-term welfare.
(2)That the child shall live with the Mother.
(3)That the Applicant shall spend time and communicate with the child as follows:-
(a)Each alternate week from 5.30pm Saturday until before school Wednesday or if not a school day until 5.30pm that day.
(b)From 19 December at 5.30pm until Christmas Day at 12 noon.
(c)For 4 hours on the child's birthday.
(d)By telephone or by electronic means 2 times a week between 6.00 and 6.30pm on days to be agreed by the Mother and the Applicant, but if there is no agreement then each Wednesday and each Friday or Saturday when the child is in the Mother's care.
(e)At other times as may be agreed by the Mother and the Applicant.
(4)For the purposes of paragraph 3 changeover shall be at the child's school or at Suburb B if it is not a school day.
(5)The Mother is at liberty to enrol the child at a school of her choice near to her home, and she is to provide details of same to [the Applicant] forthwith.
(6)The Mother shall make arrangements for the Applicant to be authorised to communicate with the school and to receive information regarding the child's progress including being provided with school reports, photographs and newsletters.
(7)The Applicant shall be at liberty to attend school events that parents would otherwise normally attend.
(8)That the Mother and the Applicant shall advise each other as to any serious injury or illness affecting the child, and any medical issues which require treatment, medication or hospitalisation and the requirement for same.
(9)Both the Mother and the Applicant shall keep each other advised as to their and the child's residential and postal addresses, email addresses and contact telephone numbers, and including all details of overseas trips including travel arrangements and schedules, and addresses and phone numbers of where they will be residing
…

The mother made no proposal as to the orders she seeks in the event that her application for a change of residence is unsuccessful.
The ICL filed written submissions on 26 October 2020 which included a Minute of Proposed Orders seeking orders in the following terms:-
(1)All previous parenting orders shall be discharged except for Orders 12 to 15 inclusive of the Orders made in the Federal Circuit at Dandenong on 29 June 2016 (the Watch List Orders) which shall continue with full force and effect as orders of this court.
(2)The Applicant…and the Mother… shall have equal shared parental responsibility for the child…except that [the child] shall remain at her current school until such time as the Applicant and the Mother shall agree in writing that [the child] should change schools.
(3)[The child] shall live with the Applicant.
(4)[The child] shall spend time with the Mother as follows:
(a)During all school terms, in each alternate week from the conclusion of school or 4pm Thursday until the commencement of school or 9 am the following Monday.
(b)During all school terms on each alternate Thursday and Friday from the conclusion of school or 4pm on the Thursday until the commencement of school or 9 am Friday.
(c)For one half of each term holiday as agreed and, failing agreement, from the conclusion of school on the last day of the school term until 5pm on the middle Saturday of such holidays.
(d)For one half of the Summer School Holidays as agreed and failing agreement, for the first half when such holidays begin in even numbered years and the second half when such holidays begin in odd numbered years and the holidays shall be deemed to commence at 9am on the first Saturday of such holidays and conclude at 5pm on the last Sunday of such holidays. The first half of the holidays shall conclude at 5pm on the day which marks the half way point of the deemed period and in the event that there is an odd number of days, [the child] shall stay with the Mother for that extra day until 5pm.
(e)from 5pm on the Saturday preceding Mother's Day until the commencement of school or 9am the next day and her time with [the child] shall be suspended for the same period on Father's Day.
(f)for [the child's] birthday, her brother G's birthday and the Mother's birthday from the conclusion of school until 7pm if a school day and from 2pm until 6pm if a non school day and her time with [the child] shall be suspended for the same periods on the Applicant's birthday.
(g)from 5pm Easter Thursday until 9am Easter Tuesday in even numbered years and her time with [the child] shall be suspended for the same periods in odd numbered years.
(h)in 2020 and each alternate year thereafter from 4pm Christmas Day until 4pm Boxing Day with the Mother's time with [the child] being suspended for the same periods in 2021 and each alternate year thereafter.
(i)in 2021 and each alternate year thereafter from 4pm Christmas Eve until 4pm Christmas Day with the Mother's time with [the child] being suspended for the same periods in 2020 and each alternate year thereafter.
(5)Changeover when not at school shall be at McDonalds Suburb B or such other location as agreed.
(6)Any Country F or Country E or Australian passport in [the child]’s name shall be forthwith given to the Applicant by the Mother for safekeeping.
(7)Each party shall forthwith inform the other of any serious medical issue relating to [the child] and provide authority for the other, if necessary, to liaise with any treating professionals.
(8)Each party is hereby restrained from abusing or denigrating the other or from discussing the proceedings in the presence of hearing of [the child].
THE ISSUES
The issues in this matter, as identified in the parties' affidavit material, the expert reports and during the course of the hearing, may be summarised as follows:-
·The allocation of parental responsibility;
·With whom the child should live;
·If the Court determines that the child should live in the primary care of the mother, whether the mother should be allowed to relocate to Country F with the child;
·What time the child should spend with the other party;
·Whether the child has been sexually abused by the applicant;
·Whether the child has been exposed to family violence;
·The parenting capacities of the applicant and the mother.
THE HEARING
The matter was listed for mention on 28 June 2019 prior to the commencement of the hearing as a result of the mother filing a Request to Attend by Electronic Communication with respect to her witness, Mr Deiters. The mother sought that Mr Deiters, who resides in Country F, be allowed to give his evidence via video-link pursuant to r 5.06 of the Family Law Rules 2004 (Cth) ("the Rules"). The mother submitted that Mr Deiters was unable to travel to Australia from his home in City H, Country F “due to ill health".
The applicant opposed the mother's application.
The ICL submitted that whilst it would be preferable for Mr Deiters evidence to be given in person, he should be permitted to give evidence electronically in light of the importance of Mr Deiters as a witness in the mother's case.
The issue was adjourned to be dealt with at the commencement of the trial, pending further medical evidence to be adduced as to Mr Deiters health and capacity to travel.
The final hearing commenced on 22 July 2019. Upon hearing submissions, I acceded to the mother's application that Mr Deiters provide evidence by video-link, given the nature of the proceedings and the significance of Mr Deiters evidence having regard to his relationship with the mother and X.
Although the matter was originally listed for five days it was apparent by the third day of hearing that five days was insufficient to conclude all of the evidence. Accordingly, on 26 July 2019 at the conclusion of the applicant's evidence, the matter was adjourned part-heard to resume on 18 November 2019 for a further five days. That delay afforded the parties the opportunity of obtaining an updated Family Report to further assess the child's relationships with the parties and Mr Deiters. I made a further order for the preparation of an addendum to the Family Report.
Consent orders were also made that day, providing for the respondent to spend time with the child as follows:-
(a)From 6pm 25 July 2019 to day care on Wednesday 31 July 2019 no later than 12 noon;
(b)From S Childcare on Friday 2 August 2019 no earlier than 3.30pm (but before 6pm) to the commencement of day-care on Monday 5 August 2019 being no later than 9.30am.
(c)Commencing 8 August 2019, and each alternate week thereafter from day care on Thursday no earlier than 3.30pm (but before 6pm) to 5.30pm Friday at the ticket office at Suburb T Railway Station.
(d)Commencing Thursday 15 August 2019, each alternate weekend from day-care on Thursday no earlier than 3.30pm (but before 6pm) to the commencement of day-care on Monday being no later than 9.30am; and
(e)Unless otherwise agreed in writing between the parties.
…
The hearing was to resume on 18 November 2019, pursuant to the orders made on 26 July 2019. That did not occur due to the withdrawal of the mother's Counsel for "ethical reasons" and her solicitor on the basis that she had not been provided funds by the mother to engage counsel for the remainder of the trial. Having had more than three months' notice of the adjourned hearing date, it was most unsatisfactory that the solicitor for the mother sought leave to withdraw from a part-heard final hearing due to lack of funds. However, given the issues raised by Counsel representing the mother and in circumstances where the application was not opposed, I acceded to the solicitor's request to withdraw from the proceedings.
Self-represented, the mother, with the assistance of a Country E interpreter, made application for an adjournment of the final hearing until early 2020 to enable her time to retain alternative counsel for the remainder of the trial. Counsel for the applicant opposed the application due to the potential prejudice to the applicant, including the costs incurred, the inconvenience and the enduring stress on the child of the proceedings which had been on foot since 2016. Counsel for the ICL acknowledged that an adjournment was unsatisfactory but highlighted that there were complex issues at play and that the preferable course would be for the mother to be represented, particularly given English is not her first language.
In circumstances where the mother was left self-represented and communicating with the Court through an interpreter, I acceded to her application for an adjournment. I also made orders that the mother pay the applicant's costs thrown away. I delivered ex-tempore Reasons for Judgment with respect to those orders.
Consent orders were also made on 18 November 2019, providing for the child's schooling and spend time arrangements in 2020. Order 3 provided as follows:-
…
(3)Order 1 of the orders made by consent on 26 July, 2019 be varied for X to spend time with the mother as follows:
(a)During summer school holidays:
(i)From 20 December 2019 from day-care to 11 a.m. on 25 December 2019 at Suburb B McDonalds.
(ii)And then week-about from the conclusion of childcare on Monday to the commencement of childcare one week later on Monday each alternate week commencing 30 December, 2019.
(f)Upon the commencement of school, changeover will be to and from school on each alternate Thursday and Monday and from the conclusion of school on Thursday to the commencement of school on Friday each alternate week.
(g)During school term holidays, from the conclusion of school to 5.30 p.m. on the middle Saturday at Suburb B McDonalds.
…
A notation to those orders provided that “[t]he parties agree to an interim enrolment to commence school at Suburb C Primary School in 2020".
The final hearing resumed before me on 2 March 2020 and proceeded over a further four days. The mother was represented throughout the trial, albeit that she retained three different counsel to represent her during the interrupted stages of the hearing.
The parties informed the Court prior to the resumption of the trial in March that one of the applicant's witnesses required for cross-examination would not be available to give evidence. As a result, on 5 March 2020 the matter was again adjourned part-heard and listed to resume in August 2020.
Due to the restrictions associated with the COVID-19 pandemic, the final hearing ultimately resumed on 7 September 2020 via Microsoft Teams. At that stage there remained only two witnesses required to give evidence; Ms M, the manager of the childcare centre at which the child attended, and Dr D, the Family Report writer. It was anticipated that the matter would be completed at that time. However, upon resumption of the trial, the Court was informed that Dr D was only available to give evidence for a period of 30 minutes due to her other professional commitments. Seemingly, there was a miscommunication between the ICL and Dr D regarding the amount of time required for her evidence, resulting in her scheduling other commitments. The failure of the practitioners to confirm arrangements for Dr D to give evidence occasioned a further delay in the proceedings at significant cost to the parties and the community. As a result, Ms M gave her evidence on the ninth day of the trial, and the matter was otherwise adjourned to 15 October 2020.
The matter resumed before me on 15 October 2020 via Microsoft Teams. The final witness, Dr D, was cross-examined by all parties that day. At the conclusion of the evidence, orders were made providing for a timeline for the filing of final written submissions by each of the parties. I reserved my Reasons for Judgment at the conclusion of the evidence.
LEGAL PRINCIPLES
Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child's best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is they seek orders with respect to:-
(a)With whom the child is to live;
(b)With whom the child is to spend time; and
(c)The allocation of parental responsibility for the child.
Each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act, the mother as a parent and the applicant as a person whom I am satisfied is concerned with the care, welfare and development of the child, X having lived in his primary care since approximately late February or early March 2016.
In determining the appropriate parenting order in this matter the best interests of the child is the paramount consideration (s 60CA). That this is so was confirmed in the decision of Aldridge & Keaton (2009) FLC 93-421 where the Full Court, in considering whether the 2006 amendments to the Act alter the principle that applied previously, said this:-
75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
•the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
•the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
•that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child's best interests.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child's best interests. I will return to those in detail below.
As to the manner in which the Court is to take into account those considerations, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at paragraph 76-77 as follows:-
It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
There is a presumption that it is in a child's best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility; it does not relate to the time the child spends with each parent. If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the child's best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent (s 65DAA of the Act). For the reasons set out herein, I am not satisfied that it is in X’s best interests for the parties to have equal shared parental responsibility and as such the provisions of s 65DAA do not apply.
The above principles apply to applications seeking relocation of a child, including international relocation, just as they do in other parenting applications. As with all parenting cases, the Court must weigh up the parties' various competing proposals, with the best interests of the child being the paramount consideration. However, a determination of what is in the child's best interests does not mean that the legitimate desires and interests of her parents and those interested in her care, welfare and development are ignored; rather, where those interests conflict with the child's best interests, the former must give way to the latter (AMS v AIF (1999) 199 CLR 160 at 207-208). Whilst a parent enjoys the right of freedom of movement to live wherever they so choose, that right must defer to the paramount consideration, being what is in the best interests of the child (U v U (2002) 211 CLR 238 at [89]).
THE EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence. In applying that standard, the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (Evidence Act 1995 (Cth), s 140).
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the parties and their witnesses, when giving their evidence in Court and via Microsoft Teams.
In making my findings, I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
The Applicant
The applicant gave evidence and was cross-examined by both counsel for the mother and counsel for the ICL. His cross-examination took up a period of four days, mainly due to the extensive cross-examination undertaken by the mother's then counsel.
In opening, counsel for the applicant submitted that the applicant was pursuing his application that the child live with him and he have sole parental responsibility for her care as:-
·He regards himself as X's father;
·He believed he was X's father until parentage testing was undertaken;
·X regards him as her father;
·He has been the primary carer for X since 2016;
·X has thrived in his care;
·The evidence of the family report writer, Dr D, and the child-care worker, Ms M, supports his case that X has thrived in his care.

Throughout cross-examination, the applicant was unshaken in his evidence as to his belief that he was X's biological father, until the results of parentage testing were received. It was apparent throughout his evidence that he was devoted to and loved X.
I found the applicant to be an honest and compelling witness.
The focus of much of the cross-examination of the applicant was on his relationships with the mother and her sister, Ms J. The applicant's responses in relation to those matters were forthright and he impressed as an honest witness in relation to those matters. He was clear in his evidence as to the nature of his relationship with the mother's sister Ms J, confirming that they had an intimate relationship. He also conceded that upon meeting the mother, he was not romantically interested in her. The applicant was frank as to his desire for a relationship with the mother's sister Ms J, notwithstanding that that evidence did not reflect well upon him, particularly given that he pursued his interest in Ms J, including travelling to City U to visit her, after his marriage to the mother.
The applicant also made concessions regarding the circumstances of the statutory declaration signed by him on 26 December 2014 (Exhibit R-3). That declaration states as follows:-
I Mr Roberts…have been separated from [the mother] since the 10th of January 2012 and that I am not the father of [the child]. I am not a sponsor of [the child].
When cross-examined in relation to that document, the applicant conceded that its contents were not true and confirmed that he had executed the document as a result of pressure from the mother to assist her application for Centrelink benefits.
It was clear throughout his evidence that the applicant was bitter and upset as to the circumstances he found himself in and particularly as to the mother's conduct towards him. It was evident that he felt he had been used by the mother and Ms J to provide the mother with financial support and enable her to leave Country E to live in Australia.
The applicant's evidence in relation to the allegations that he had sexually abused the child was a source of obvious distress for him. The applicant was steadfast in his denial that he had abused the child or committed family violence against her or the mother. The applicant's evidence in relation to those matters was compelling.
Similarly, the applicant's evidence as to the circumstances of the child's birth, including his presence at the birth, was detailed and appeared genuine. He stated that he drove the mother to the hospital from his home and was present at the birth. The mother’s evidence was that the applicant did not attend the birth. Further, she stated that she had taken public transport to the hospital for the birth. That the applicant was able to produce photographs he stated were taken by him prior to and after the child's birth (ICL-1) supported his evidence as to his presence at the child's birth. Those photographs depict images of the mother smiling in the applicant's home when heavily pregnant. The mother agreed with the father's evidence that that photograph was taken shortly prior to her departure from the home to the hospital to give birth. Further, there are three photographs of the mother and the child at the hospital which were obviously taken shortly after the child's birth, the last of those images being a photograph of the child being weighed after her birth. Those images support the father's account, which I accept, that he was present at X's birth.
When cross-examined about his conduct in relation to arrangements for the mother to spend time with the child, again I found the father to be a frank and open witness. There was much cross-examination of the applicant in relation to altered or missed occasions of time between the mother and X, and indeed there was a significant amount of text message communication between the parties and correspondence passing between the parties and their lawyers tendered during his evidence in relation to those matters (Exhibits R-5 to R-10 inclusive). During his oral evidence the applicant acknowledged that he had not always behaved in a child-focussed manner when dealing with the mother. He conceded that he had on occasion cancelled the mother's time to enable X to attend other events, such as birthday parties. I found his account of those events to be forthright and honest.
I am satisfied that on occasions the applicant’s adherence to the orders was rigid, inflexible and lacking in child focus; there is no justification for prioritising social events such as children’s parties over X’s time with the mother, as occurred on occasions. I am satisfied that the applicant’s actions on such occasions were likely due to the lack of trust and regard between the applicant and the mother, which no doubt was heightened as a result of the intervention order proceedings, these proceedings and the allegations of sexual abuse.
Overall I found the applicant to be a simple man who did his best to give an open and honest account of the matters about which he was cross-examined. He made concessions where appropriate as to his own conduct, particularly with respect to his relationships with the mother and her sister Ms J, and also with respect to his failure at times to facilitate the mother's time with X. The applicant impressed as a truthful witness.
The Mother
The mother gave evidence and was cross-examined by both counsel for the applicant and counsel for the ICL over the course of four days. Throughout her oral evidence the mother had the assistance of a Country E interpreter. However, most of her evidence was given in English, save that on occasions she sought the assistance of the interpreter to clarify the meaning of questions or to assist in answering questions.
I have significant concerns about the mother's evidence and that of her witnesses. She was often an evasive witness and in relation to some matters I found her evidence, at times, to be deliberately misleading.
For example, when asked simple questions such as what enquires she had made regarding the cost of travel between Australia and Country F in order to facilitate the applicant having time with the child, the mother repeatedly avoided answering the question. I was left with the impression that she had made no recent direct enquiries in relation to those matters.
Similarly, when questioned as to how such travel would be funded, the mother's evidence was that the travel would be funded by Mr Deiters. When questioned as to his sources of income, the mother did not provide a response. It was only when pressed that she stated that his income was sourced from superannuation. When questioned as to how much money he had invested in superannuation, the mother's response was that she was not sure, that she did not enquire "too much about financial stuff".
As her evidence unfolded, it was clear that the mother has little knowledge as to Mr Deiters financial circumstances. Given her reliance upon Mr Deiters to assist in funding travel between Country F and Australia to facilitate the applicant's time with the child, that evidence was surprising.
In relation to other matters, I am satisfied that the mother sought to deliberately mislead the Court. Some examples of such evidence follow. As a result of my findings that the mother has deliberately mislead the Court in relation to many significant matters, where there is conflict between her evidence and that of the applicant, the mother's evidence must be treated with caution.
X's paternity
As the evidence unfolded, it became clear that the mother had been less than frank with the applicant and the Court as to the nature of her relationships with the father, Mr Deiters, and other men in her life. Further, it was clear from the evidence produced that depending on the circumstance, she made differing representations as to who was X's father.
The mother's evidence was that initially she believed that X's father was Mr L, a person with whom she had had a relationship in 2013. Mr L disputed paternity. Ultimately parentage testing in 2015 confirmed that Mr Deiters is X's father.
X's father is not named on her birth certificate. The notes produced from the Maternal and Child Health nurse who attended upon the mother following X's birth record that the mother informed her that X's father was a person with whom she had been in a relationship for some two years and from whom she had separated (Exhibit R-11); presumably she was then referring to Mr L. Those notes make no reference to Mr Deiters or the possibility of him being X's father.
The complaints by the mother recorded in the Victoria Police Sub-Incident Summary Report dated 15 June 2016 (Exhibit ICL-2) note the mother's allegations of family violence by the applicant and her reports to Police that the parties lived together until February 2016, that X is the child of she and the applicant and that they were in a sexual relationship until their physical separation in 2016. Those statements contradict the evidence given by the mother in these proceedings as to the nature and duration of the parties’ relationship and as to X’s paternity. However, they are consistent with the applicant’s account of the parties’ relationship.
Similarly, in her statement to Police annexed to her affidavit affirmed 4 August 2016 and filed 23 August 2016 (Exhibit A-4), the mother is recorded as stating:
We were still having sex until 2016. I fell pregnant with our daughter X in 2013.
Again, those statements are consistent with the applicant's evidence.
I am satisfied that the mother provided varying accounts as to the parties’ relationship and the identity of X's father depending upon her circumstances and needs. Given my earlier findings as to the sincerity of the applicant's belief that he was X's father, coupled with his commitment to her care, I am satisfied that the mother misled him and others in relation to the issue of X’s paternity.
The mother's evidence as to her reasons for offering the applicant time with the child, notwithstanding her knowledge that he is not the child's father, in my view, also supports the father's contention that at that time, he believed he was X's father.
For example, at paragraph 101 of her trial affidavit filed 18 March 2018, the mother admits that she offered for the child to live with the applicant for three months. Further, the mother admitted during her oral evidence that in February 2016 she forwarded an email to the applicant stating "I'm not going to be with you" and inquiring "What care arrangements do you want to have for X?" She also admitted sending emails to the applicant inquiring as to what percentage of time he wished to spend with X. It was put to the mother that at that stage the applicant had no idea that he was not the child's biological father. The mother denied that proposition and further stated that she had already informed the applicant that there had been parentage testing in Country F and that Mr Deiters was the father of the child.
I do not accept the mother's evidence that the applicant was aware at that time that he was not the child’s father. The mother's emails and communication with the applicant as well as her evidence in her affidavit filed in August 2016 (Exhibit A-4) is entirely consistent with the applicant's evidence that at that stage, he believed himself to be X's father and that he had no knowledge that parentage testing had confirmed Mr Deiters as X's father. The offer made by the mother to the applicant that he care for X is consistent with his evidence that he believed he was her father. Accordingly, I prefer the evidence of the applicant in relation to these matters.
The mother's plans to relocate in 2015/2016
Also of concern was the mother's evidence in relation to her relocation plans at the time of the commencement of the proceedings. In his Initiating Application, the applicant sought orders that the mother be restrained from removing the child to Country F. He then deposed of his concerns that the mother had plans afoot to relocate with the child to Country F to join her family there.
The applicant commenced proceedings in April 2016 seeking that the child be placed on the Airport Watch List as well as parenting orders and injunctions against the mother. The mother confirmed during her oral evidence that she was served with that application on 10 June 2016. The mother engaged lawyers who filed her affidavit in response on 23 August 2016 (Exhibit A-4). That affidavit is significant insofar as:-
·Whilst the mother disputes that the applicant is X's father at paragraph 3 of the affidavit, she does not identify who the child's father is, notwithstanding the fact that parentage testing had been undertaken in Country F, and the results of that testing, which were released to her in November 2015, confirmed that Mr Deiters is X's father. Nowhere in her affidavit does the mother disclose that parentage testing had already been undertaken confirming Mr Deiters as the child's father.
·At paragraph 24 of that affidavit, the mother deposes that the child has "two passports only, Australian and Country E". That evidence is given notwithstanding the fact that the mother had applied for and obtained a Country F passport for the child in 2015.
·At paragraph 29 of that affidavit the mother deposes that she does not want to relocate, stating:-
I'm happy living in Australia, I am studying here so there is no reason for me to leave to Country F permanently.
·Further, at paragraph 15 of the responses in her affidavit, the mother deposes "I am not trying to obtain residency in Country F".
The mother conceded during cross-examination that at the time she swore that affidavit, she knew that Mr Deiter was X's father as a result of parentage testing undertaken. She also conceded that it was always her intention to relocate and live with Mr Deiter in Country F. The mother confirmed that by the end of 2015, parentage testing with Mr Deiter had confirmed that he was X's biological father. Further, she confirmed during her oral evidence that she and Mr Deiter had made application and obtained a Country F passport for X and that that passport had issued in the name "X Deiter". The mother also confirmed that Mr Deiter had sponsored her to be his spouse in Country F.
Given the mother's concessions during her oral evidence that she had applied for and obtained a Country F passport for the child, that she had arranged for Mr Deiter to sponsor her to live in Country F and that it was her intention to relocate to live permanently in Country F in June 2016, I am satisfied that she deliberately misled the Court in her affidavit filed in August 2016 in opposition to the making of the Airport Watch List orders and injunctions sought by the applicant.
During her oral evidence, the mother sought to explain the evidence contained in her August 2016 affidavit as a "mistake". It was put to the mother that in fact her evidence was a lie. The mother denied that she had lied.
I do not accept that evidence. I am satisfied that the mother's affidavit was a deliberate attempt by her to mislead the Court in relation to X's parentage and the mother's plans to relocate to Country F with X.
Allegations of Sexual Abuse
The mother made serious allegations that the applicant had sexually abused X. The applicant denies all allegations that he has sexually abused X. The mother's evidence in relation to her allegations was deeply concerning.
Those allegations were the subject of investigation by the Department of Health and Human Services (“DHHS”) (as it then was) and X was subjected to forensic medical examination at the V Hospital. The allegations were first raised by the mother in her affidavit filed 4 August 2016, filed after interim orders had been made on 29 June 2016 that X live with the applicant.
At the time those orders were made, the parties had attended Court for the preparation of a s 11F report. The mother was represented at the time the June 2016 orders were made. Nonetheless, at that stage, the mother had not raised any issue with respect to the alleged sexual abuse.
At paragraph 49 of her August 2016 affidavit (Exhibit A-4) the mother deposed as follows:-
During the time we lived together from September 2015 until January 2016, I often saw him take X to sleep with him in his bed. He often did not wear underwear and let her play with his penis. On other occasions he did not wear clothes after his shower while he played with X.
Later in the same affidavit, at paragraph 77, the mother deposed as follows:-
I have been worried about sexual abuse and I am worried about physical and emotional abuse. He once hit me while I was holding X and I am worried about future family violence. He said his family were friends with the police and he had the best lawyers in Australia. He often was around the house not wearing even underwear and this is not a safe environment for X. He would often take X to bed without wearing any clothes and had her play with his penis.
The mother also reported her concerns to DHHS on 5 July 2016 following the making of the June 2016 orders.
During cross-examination, the mother maintained the truth of that allegation.
The mother also confirmed that she had informed Mr Deiters of her belief that the applicant had sexually abused the child.
The mother conceded during her oral evidence that she was dissatisfied with the decision of DHHS to close its investigation in relation to the allegations. The mother also confirmed during her oral evidence that after the closure of the file by DHHS she reported her allegations to her Maternal and Child Health nurse and police and that she also attended upon the V Hospital emergency department with the child.
As a result of that attendance, X was examined by Dr W who prepared a report dated 27 January 2017 (ICL-3). He notes the mother's reports of the applicant's abuse of X from September 2015 to January 2016 (prior to the commencement of these proceedings), that the mother was concerned about a tear in X's vagina, that the mother had seen the applicant put his penis in X's mouth. At page 6 of his report, Dr W notes the mother’s report of abuse as follows:-
She stated that she saw [the applicant] take X's hand and place it on his penis and would do this about twice a week including in the shower. In addition, he would sometimes put his penis on X's face and sometimes ejaculate but not inside her daughter's mouth. She stated that she told [the applicant] off and threatened to report the matter to police but [the applicant] threatened to kill both her and X if she did so.
At page 9 of his report Dr X states that:
…the claim by [the mother] that she saw a tear in the labia minora is not supported by the medical findings on examination. Further, there was no evidence of any injury to the hymen or genital area.
The allegations raised by the mother with Dr W, particularly that the applicant had orally raped X and ejaculated on her face are not raised in the mother's trial affidavit.
During cross-examination by the ICL, the mother was challenged as to her varying accounts of the alleged sexual abuse provided by her in her affidavits filed in the proceedings and during her interview with Dr W. The mother's explanation for the differences in her accounts was that she was describing different occasions of alleged abuse.
Counsel for the ICL put to the mother that she had not in any of her trial affidavits alleged that the applicant would place the child's hand on his penis about twice a week. The mother conceded that she had not included that allegation in her affidavits. She also agreed that the allegation that the applicant had ejaculated on the child's face was not included in her affidavit. Her explanation for those omissions was that she was fearful that the applicant would seek revenge if she included those allegations in her affidavit.

Dr D considered that X would suffer significant confusion and distress as a result of the likely loss of her relationship with the applicant were she to relocate to Country F. Further, those issues may be compounded were the mother and Mr Deiters to promulgate their views of the applicant as a sexual abuser. Dr D stated that were X exposed to such views, she may well come to believe that she has been abused by the applicant. Dr D considered that the propagation of such a belief may lead to long term difficulties for X in being able to form and maintain trusting adult relationships. I accept that evidence.
Dr D had little confidence in the mother's capacity to support X's ongoing relationship with the applicant. I share those concerns having regard to the mother's views expressed during her oral evidence and in her trial affidavit in relation to the applicant. Given the history of the dispute, the mother's attempts to mislead this Court as to her intentions to relocate, the mother's covert actions in obtaining a Country F passport for X and her allegations of sexual abuse, raised only after interim orders were made placing X in the applicant's primary care, I have no confidence that she will support X's ongoing relationship with the applicant if permitted to relocate.
Having regard to the risks identified by Dr D, which I accept, I am not satisfied that the relocation as sought by the mother is in X's best interests.
In my view the risk to X of the potential loss of her relationship with the applicant were the relocation permitted outweighs the benefit to her of living in closer proximity to members of the maternal family and Mr Deiters in Country F.
In the event that relocation is not permitted, the mother sought orders that X live with her and spend time and communicate with the applicant each alternate week from Saturday afternoon to the commencement of school on Wednesday, being four nights per fortnight. This represents a significant reduction in X's time with the applicant.
The evidence of Dr D, which I accept, was clear that X's needs are best met under the existing arrangements. X was assessed as being in a stable and settled living arrangement with the applicant. It was observed that all of X's needs are provided for by the applicant with whom she has lived since 2016 and from whom she continues to obtain most of her emotional and psychological care. Those arrangements have also ensured that X has the benefit of loving and meaningful relationships with the mother and her brother G. Having regard to that evidence, I am not persuaded that there should be any alteration to those arrangements.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Given my findings that X's best interests are met by her continuing to live with the applicant and spend time with the mother in accordance with the existing arrangements, there will be little change to the costs associated in facilitating X's time with the mother.
However, even were I persuaded that the mother's proposal to relocate and spend time with the applicant in Melbourne and Country F was in X's best interests, I am satisfied that there are practical impediments to their implementation.
The mother's proposal is that if the relocation is to occur, X will spend time with the applicant in Australia on two occasions each year in February and August and also in Country F on two occasions each year. However, having regard to the Financial Statements of both the applicant and the mother I am not satisfied that either has the financial capacity to facilitate those proposals.
In his Financial Statement filed 20 September 2018 the applicant discloses an income of approximately $86,000 per annum (including Family Tax Benefit), assets valued at little more than $5,000 and liabilities of approximately $50,000. The mother’s Financial Statement filed 20 August 2018 discloses her income from rental to be approximately $4,075 per week and her expenditure to be $3,816 per week; she discloses net assets of approximately $161,000.
The mother's evidence is that return travel from Country F to Australia for herself and X on two occasions each year was likely to cost no less than $20,000 per annum. I am satisfied that neither the applicant nor the mother has the income or financial resources to meet those costs on an ongoing basis.
The mother is reliant upon the generosity of Mr Deiters or her family to assist her.
The mother's evidence is that Mr Deiters will pay all costs associated with X's return travel between Country F and Australia on two occasions per year. There is no evidence before the Court as to Mr Deiters financial circumstances and the mother was unable to provide any information as to his financial position; indeed the Court was left with the impression that the mother had made few, if any, inquiries of Mr Deiters as to his capacity to meet those ongoing costs.
Whilst Mr Deiters indicated during his oral evidence his preparedness to meet those travel costs and to pay a bond of $100,000 to secure compliance with orders, I have significant misgivings as to his commitment to the same given his:-
·Refusal to assist the mother in part payment of her legal costs in these proceedings, preferring that she seek assistance from her family, which resulted in an adjournment and delay in the completion of the trial;
·Reluctance to travel to Australia to visit X and her younger sibling, notwithstanding concessions made by him during his oral evidence as to his capacity to undertake business class travel. As a man who has a partner, young daughter and infant son in Australia, who concedes he has the capacity to travel business class, who has been a party in the on-going parenting proceedings and had independent legal representation in the proceedings, his failure to travel to Australia to visit his children and support his partner in the proceedings, is perplexing and concerning. That conduct calls into question the degree of his commitment to his partner and children;
·Evidence that upon arrival in Country F, he will require the child G to have DNA testing to confirm his paternity. There is no evidence as to what Mr Deiters attitude would be to his support of the mother were he found not to be G's father;
·Withdrawal as a party in the proceedings;
·Failure to engage with Dr D for the preparation of the Family Report and the Supplementary Report.
I am satisfied that the above matters raise significant concerns as to Mr Deiters commitment to support and assist the mother and X.
Given the importance of his support to the mother's capacity to facilitate the applicant's time with X were the relocation permitted, I am not satisfied that the mother's proposals for time are capable of implementation.
Similarly, although the mother's sister and brother-in-law indicated their willingness to provide the mother with financial assistance were Mr Deiters support not available, the reality is that they were unable to provide such assistance to the mother to ensure her financial capacity to continue the hearing. I am not satisfied that reliance can be placed upon them to financially support the applicant's time with X given that history.
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The mother is from Country E and members of her family, including her parents, continue to reside in Country E. In addition, her siblings and other members of her extended family reside in Country F.
By virtue of the orders I will make that X continue to spend significant and substantial time with the mother, she will have the opportunity to learn of her Country E culture and traditions from her mother and other members of the maternal family.
The applicant's evidence is that he is interested in and supportive of ensuring that X has knowledge of and understanding of her Country E heritage. His evidence is that he has been learning Country E language. The applicant's interest in and commitment to ensuring that X continues to learn of her Country E culture and traditions impressed as genuine and sincere.
X's father, Mr Deiters, is from Europe and fluent in Country F language. The evidence of both he and the mother is that he is endeavouring to teach X this language during their FaceTime communications. Further, the mother's evidence is that X participated in language classes during pre-school. I am satisfied that X is likely to continue to benefit from learning of her Country F heritage with the assistance and support of the mother and Mr Deiters. It is to be hoped for X's benefit that Mr Deiters will spend time with X in Australia to ensure that this occurs.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The applicant has demonstrated an absolute commitment to X's care. I am satisfied that he has been a devoted and loving parent to X and has attended to all of her physical, emotional and intellectual needs since he became her primary carer in 2016. The evidence of Dr D, which I accept, is that X is thriving in the applicant's care.
Dr D's observations support a finding that the mother shares a loving relationship with X. However, I have reservations about the mother's capacity to ensure that her own needs are not elevated above those of X.
The mother has gone to extraordinary lengths to advance her application for relocation; I am satisfied that she has been complicit in the misleading of the Court by her sister, Ms J, and her brother-in-law. At no stage during the proceedings did she seek to correct the evidence of those witnesses as to the nature of their relationships. That conduct raises significant concern as to the mother's willingness or capacity to prioritise X's needs above her own.
The mother's conduct in the pursuit of sexual abuse allegations against the applicant also raises significant concerns. Those allegations were not raised until after interim orders were made that X live with the applicant. They were not raised in the context of earlier hearings before the Federal Circuit Court or in the preparation of the s 11F report. Further, the mother's pursuit of those allegations resulted in X being submitted to a forensic examination at the V Hospital. Notwithstanding the absence of evidence to support the allegations, the mother maintained them and confirmed those allegations during her oral evidence in these proceedings. It was only in written closing submissions that it was conceded on behalf of the mother that those allegations could not be maintained.
The mother's persistence in the pursuit of those matters supports my findings that X's best interests are served by continuing to live with the applicant and spend time with the mother. This will ensure that the mother's sphere of influence and opportunity to convey her attitudes or beliefs with respect to the applicant are limited.
Whilst Mr Deiters has participated in the proceedings as a witness, I have significant reservations as to his commitment to his responsibilities as a parent to X. Although joined as a party in the proceedings following receipt of the parentage testing results, he withdrew as a party prior to the commencement of the trial; his complaints and criticisms of the proceedings and their outcome are trite given his decision to remove himself from the Court process.
Similarly his failure to participate or engage with Dr D for the preparation of the family reports calls into question the genuineness of his commitment to parent X.
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family, any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
As noted previously, the applicant has been granted an intervention order against the mother, for the protection of both the applicant and X.
The mother's applications for intervention orders against the applicant have been dismissed.
In addition, the mother has previously alleged that the applicant has sexually abused the child. Those allegations were not substantiated by the DHHS. Further, in her written closing submissions, it was conceded on behalf of the mother that those allegations could not be maintained. I am satisfied having regard to the evidence of the applicant and the mother that the applicant does not pose an unacceptable risk of harm to X.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These proceedings have been on foot since April 2016, a period of more than five years. X was aged two when the proceedings commenced and is now aged seven years. Dr D has prepared two comprehensive reports in the matter. The parties have engaged with the then DHHS as a result of the allegations that the applicant sexually abused X and she has been exposed to invasive forensic examination by medical practitioners at the V Hospital. Given that history, there can be no question in my mind that it would be preferable to make orders that will avoid the necessity for further proceedings.
CONCLUSION
Allocation of parental responsibility
The first issue to be determined is the question of allocation of parental responsibility. The applicant seeks orders that he have sole parental responsibility for X on the basis that he shall seek the views of the mother prior to making any long-term decision with respect to X, and take into consideration her views and opinions.
The mother seeks orders that she and Mr Deiters have joint parental responsibility, save that the mother shall keep the applicant informed by email of any matters regarding X's long-term care and welfare.
The position of the ICL is that the applicant and the mother should have equal shared parental responsibility, save that X should remain at her current school until such time as the applicant and the mother agree in writing that she should change schools.
An order for equal shared parental responsibility requires that any decision regarding X's long term care be made jointly by those charged with that responsibility. Such decisions would require the mother and the applicant to consult each other in relation to the issues and make a genuine effort to come to a joint decision. Having regard to the history of this matter, I have no confidence that the applicant and the mother could co-operate as required to discharge that responsibility together.
The evidence of both the applicant and the mother supports a finding that there is a high degree of conflict between them dating as far back as June 2016, when each applied for intervention orders against the other.
The applicant alleges the mother over-held X and this was the catalyst for his application for a recovery order in the Federal Circuit Court. He is also deeply distrustful of the mother as a result of the allegations raised by her that he sexually abused X.
The mother alleges that she has been subjected to bullying and stalking behaviour by the applicant at changeovers. She has made complaints to police and applied for intervention orders against him as a result of those alleged behaviours.
The evidence of Dr D supports a finding that X has been exposed to the conflict between the applicant and the mother, who are the two most significant adults in her world and the people she regards as her parents. Dr D reports as to X's sensitivity to the conflict between the applicant and the mother, noting at page 11 of the Supplementary Report of X's anxiety and concern at the possibility that the applicant and the mother were to be together at the same time in Dr D's rooms. Dr D reports that X stated that the applicant and the mother "get grumpy" when they come together.
Having regard to the history of conflict between the mother and the applicant, coupled with the fact that there is an ongoing final intervention order against the mother for the applicant's protection, I am satisfied that the proposal that the parties have equal shared parental responsibility is unworkable and contrary to X's best interests.
I am equally satisfied that the mother's proposal that she share parental responsibility with Mr Deiters is unrealistic and unworkable, particularly in circumstances where I am satisfied that X's best interests are served by her continuing to reside in Australia with the applicant. That view is bolstered given Mr Deiters decision to discontinue his application before the Court.
I accept the evidence of Dr D that a sharing of parental responsibility is likely to be "incredibly difficult" having regard to the conflict between the adults. Accordingly, I am satisfied that X's best interests will be served by an order that the applicant have sole parental responsibility for making decisions regarding her long-term care, welfare and development. I am also satisfied that it is appropriate that orders be made ensuring that the mother have prior notice of such decisions being made and be afforded an opportunity to have input into those decisions prior to them being implemented.
Relocation to Country F
For the reasons articulated earlier I am not satisfied that it is in X's best interests that she be permitted to relocate to Country F with the mother.
I accept the evidence of Dr D that such a move would likely result in the loss of X's relationship with the applicant, who she perceives to be her father and from whom she obtains most of her psychological and emotional care. The evidence of both the mother and Mr Deiters supports a finding that they do not value or support the applicant's role in X's life. Accordingly, I have no confidence that X's relationship with the applicant will be encouraged, supported or maintained if she is permitted to relocate to Country F, even with time spent as proposed by the mother.
In any event, as noted earlier, I am not satisfied that the mother's proposals for the applicant to spend time with X are capable of being implemented given the high costs of such travel and the limited financial resources of both the applicant and the mother.
That view is bolstered given the impact of the global pandemic upon the ability of people to travel freely to and from Australia. At present it is uncertain as to how or when international travel will be able to be undertaken without the necessity to quarantine. It is equally uncertain as to what the future costs of such travel will be.
I also accept Dr D's evidence that, if X remains in the applicant's care, X will have the opportunity of maintaining a meaningful relationship with the mother and the applicant. That X shares a loving and close relationship with the mother, notwithstanding the fact that she has been in the primary care of the applicant since early 2016, is evidence of his capacity to support and foster that relationship.
In his written submissions, counsel for the mother sought to emphasise the primacy of the biological relationship X shares with the mother and Mr Deiters. It was submitted that if X remains in the applicant's care she will be "isolated from her true course in life being with her biological parents".

The law is well settled that disputes as between parents and non-parents must be decided in accordance with what is in a child's best interests; that one party has a biological connection to the child does not elevate that party's standing in the determination of what is in a child's best interests. That proposition was confirmed by the Full Court most recently in the decision of Cottey & Backe (No. 2) [2020] FamCAFC 206. At paragraphs 58 to 60, the Full Court stated as follows:-
58.At least as far back as Rice v Miller (1993) FLC 92-415 ("Rice v Miller"), the Full Court made it clear that parenting (custody) disputes between a parent and a non-parent must be decided solely on the basis of the child's best interests. There was no presumption in favour of the natural parent when determining custody or similar matters. The fact of parenthood is a significant factor but does not "generate a preferential position in favour of the natural parent from which the Court commences its decision making process in the adjudication of custody disputes" (Rice v Miller at 80,240 quoting Re Hodak (1993) FLC 92-421 at 80,343).
59.Amendments to Part VII of the Act introduced by the Family Law Reform Act 1995 (Cth) preserved the best interests of the child as the paramount consideration to which "[a]ll other provisions in Part VII are subservient" (B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,217). Hence, while the children had a right to be cared for by both parents, this was subject to the child's best interests. Thus, notwithstanding that for the first time the Act contained a series of objects, including one emphasising a child's right to know and be cared for by both parents and; a more extensive list of factors, some of which referred exclusively to parents, there was no presumption or preference in favour of a parent in a parenting/residence dispute as against a third party (Re Evelyn (1998) FLC 92-807 ("Re Evelyn"); D & F [2001] FamCA 382).
60.The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) saw further changes made to Part VII which "placed greater emphasis on the role of both parents in the upbringing of their children" but still required that "all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant" (Aldridge & Keaton (2009) FLC 93-421 at [75] ("Aldridge & Keaton"). In Aldridge & Keaton the Full Court questioned whether the 2006 amendments changed the principles in Rice v Miller and Re Evelyn set out earlier. The combined effect of [74], [75] and [81] is that the question was answered in the negative. The appeal was properly conducted on this basis (see also Maldera & Orbel (2014) FLC 93-602; Valentine & Lacerra and Anor (2013) FLC 93-539).
In circumstances where Mr Deiters has elected not to participate in the proceedings or travel to Australia to visit his children and partner, notwithstanding his admitted capacity to do so, where he has not engaged in the processes for the preparation of the family reports, notwithstanding arrangements having been made for him to do so, including at a time when he was represented in the proceedings, I am not satisfied that it is in X's best interests for her relationship with Mr Deiters, whom she does not recognise to be a member of her family, to be prioritised over her relationship with the applicant.
Accordingly, for all of the reasons identified above, I am not persuaded that it is in X's best interests that she be permitted to relocate to Country F.
Living and spending-time orders
The applicant proposes that X should continue to live with him and that application is supported by the ICL. The mother opposes that application seeking orders that X live with her. The mother makes no proposals as to what time she should spend with X in the event that X remains living with the applicant.
The evidence of Dr D supports the continuation of the existing arrangements, that is, that X continue to live with the applicant. Dr D observed that the applicant provides X with stability and routine, love and affection. She observed X's primary attachment to be with the applicant. She also observed X to have a loving relationship with the mother. I accept that evidence.
The evidence before the Court supports a finding that at times the mother has sought to undermine X's relationship with the applicant. She has pursued allegations of sexual abuse and shared those views with Mr Deiters. Both sought to ventilate those matters during their evidence, and in the case of Mr Deiters, in correspondence with other witnesses in the case so as to advance the mother's position.
Having regard to that evidence, I am satisfied that X should be protected from the mother's undermining behaviour. As a result, I am not satisfied that X's time with the mother ought to be increased. The reality is that the existing arrangement, whereby X spends five nights per fortnight with the mother, affords her the opportunity of significant and substantial time with the mother and her younger brother.
Dr D observes that X has developed a loving relationship with the mother and her brother and supports the continuation of those arrangements. I accept that evidence.
Further, the geographic distance between the homes of the applicant and the mother mitigate against X spending more time with the mother. To move between the mother’s home and X's school necessitates travel of an hour or more by public transport each way. Accordingly, to increase X's time with the mother will burden her with significantly more travel between the mother’s home and her school which I am satisfied would be contrary to X's best interests.
The applicant proposes that X spend time with the mother during school holiday periods for a period of seven days during term holidays and half of the long summer holiday period. The mother makes no proposals as to holiday time.
I am satisfied that it is in X's best interests that she have the opportunity of sharing all holiday periods with both the applicant and the mother. This will afford her the opportunity of enjoying holiday time with the mother and G which is likely to further enhance and foster those relationships. Accordingly I will make orders that she spend one half of all school holiday periods with the applicant and the mother at such times as agreed and failing agreement, on an alternating first-half/second-half holiday period basis.
The applicant also proposes that he have the opportunity to communicate with X during holiday periods when she is in the mother's care. I consider that it is in X's best interests that she have the opportunity to communicate with the other party during holiday periods. Therefore I will make mutual orders as sought by the applicant with respect to holiday communication.
Each party makes proposals as to the time to be spent by X with them on Christmas and special days. Given the nature of X's relationship with both the applicant and the mother I am satisfied that it is in her best interests that she have the opportunity to share special days with them. Therefore I will make orders that provide that she spends Mother's Day with the mother, Father's Day with the applicant and that she have the opportunity of spending four hours with the other party on her birthday.
Similarly, I am satisfied that she should have the opportunity of sharing Christmas with both parties and G and to that end I will make orders that she spend time from Christmas Eve to Christmas Day and Christmas Day to Boxing Day on an alternating year basis with the applicant and the mother.
It is common ground between the parties that changeover should occur at the child's school or, in the event that it is not a school day, at McDonald's Suburb B for so long as the mother continues to reside in the Suburb B area.
Both parties seek orders that they be informed as to any serious injury or illness affecting X or any medical issues which require treatment, medication or hospitalisation. I am satisfied that it is appropriate that there be mutual orders in relation to those matters. I am also satisfied that it is appropriate that there be orders requiring the parties to keep the other informed of their current residential addresses, email addresses and contact telephone numbers.
I am also satisfied that it is important for X that both parties be at liberty to attend at school events to which parents are ordinarily invited to attend.
The applicant also seeks orders restraining the mother and Mr Deiters from denigrating or defaming the applicant and from abusing, insulting, belittling or rebuking him to X or in her presence. Given the high degree of conflict between the applicant and the mother I am satisfied that it is appropriate that orders be made restraining and limiting their behaviours in X's presence or hearing. I am satisfied that it is appropriate that there be mutual non-denigration orders and further that there should be orders restraining each from discussing or disclosing these proceedings to her.
Finally, the applicant seeks a continuation of the existing Airport Watch List orders which were made in the Federal Circuit Court on 29 June 2016. Given the history of the matter I am satisfied that such orders are appropriate. The evidence before the Court is that the mother planned to relocate with X to Country F without notice to the applicant and had obtained a passport for X without his knowledge. Significantly, the mother withheld those matters from the Court following the commencement of these proceedings. Given that history, I am satisfied that the Watch List orders should continue.
It is to be hoped that in the future should the mother wish to do so, X will have the opportunity to travel with her to Country F during holiday periods. However, were such travel to be undertaken I am satisfied that it would be appropriate for a significant bond to be paid to ensure X's safe return to the applicant in Australia at the conclusion of such travel.
THE ORDERS
The orders I will make are as follows:-
1.That all previous parenting orders be discharged, save for orders 12 to 15 inclusive of the orders of the Federal Circuit Court at Dandenong dated 29 June 2016 (“the Watch List orders”) which shall continue with full force and effect.
2.That the applicant have sole parental responsibility for the child X born … 2014 subject to order 3 hereof.
3.That the applicant shall seek the views of the respondent, MS LIANG via email no less than 14 days prior to making a long-term decision with respect to the child and in the event that the respondent provides her view or opinion with respect to the proposed decision to the applicant in writing he shall take into consideration that response prior to implementing any decision.
4.That the applicant notify the respondent of any decision taken in relation to the child’s long-term care, welfare and development within seven days of implementing the same.
5.That the child live with the applicant.
6.That the child spend time and communicate with the respondent as follows:-
(a)Each alternate week during school terms from the conclusion of school on Thursday to the commencement of school on Friday commencing 7 October 2021;
(b)Each alternate weekend during school terms from after school Thursday until the commencement of school on Monday commencing 14 October 2021;
(c)For one half of all school term holidays at dates agreed between the parties and failing agreement for the first half of such holidays in 2021 and each alternate year thereafter and for the second half in 2022 and each alternate year thereafter;
(d)During the long summer holiday period for one half of the holidays at dates agreed between the parties and failing agreement for the first half of such holidays commencing in 2022/2023 holidays and each alternate year thereafter and in the second half of the 2021/2022 holidays and each alternate year thereafter, such holidays to conclude at 5.00pm two days prior to the commencement of the first term of school;
(e)During all school holiday periods the party with whom the child is spending time shall facilitate telephone communication between the child and the other parent on two occasions each week between 6.30pm and 7.00pm on days to be agreed and failing agreement each Monday and Thursday;
(f)On the Mother’s Day weekend from 5.00pm on the Saturday preceding Mothers’ Day to the commencement of school on the Monday following Mother’s Day;
(g)On the child’s and the mother’s birthday from the conclusion of school until 7.00pm if a school day and otherwise from 2.00pm to 7.00pm;
(h)At Christmas from 9.00am Christmas Eve to 1.00pm Christmas Day in 2021 and each alternate year thereafter and from 1.00pm Christmas Day to 5.00pm Boxing Day in 2022 and each alternate year thereafter;
(i)As may otherwise be agreed between the parties from time-to-time.
7.That the respondent’s time with the child be suspended as follows:-
(a)On Father’s Day from 5.00pm on the Saturday preceding Father’s Day to the commencement of school on Monday;
(b)In the event that the child is in the respondent’s care on the applicant’s birthday or the child’s birthday from after school to 7.00pm if a school day and otherwise from 2.00pm to 7.00pm if a non-school day;
(c)At Christmas from 9.00am Christmas Eve to 1.00pm Christmas Day in 2022 and each alternate year thereafter and from 1.00pm Christmas Day to 5.00pm Boxing Day in 2021 and each alternate year thereafter.
8.That all changeovers that do not occur at the child’s school shall take place at McDonald’s Suburb B whilst the mother resides in that area or such other place as may be agreed between the parties from time-to-time.
9.That within 14 days the respondent do all such acts and things as may be required to surrender to the applicant all passports in the name of the child or in the name “X” including but not limited to Country F passport number …, Country E passport number … and Australian passport number ….
10.That within seven days each party notify the other in writing of their current residential address and contact email address and telephone numbers and notify the other of any change to those details within seven days of such change occurring.
11.That each party notify the other as soon as practicable in the event that the child attends a medical practitioner for any illness or injury sustained by her when in their care and notify the other party as to the diagnosis, treatment and/or management plans.
12.That the respondent be permitted to communicate with the child’s school and to receive information regarding her progress including but not limited to school reports, photographs and newsletters.
13.That the respondent be permitted to attend at school events that parents would ordinarily be invited to attend.
14.That each party be and is hereby restrained by themselves, their servants and agents from:-
(a)discussing or disclosing details of these proceedings, the evidence adduced in these proceedings or any other matters related to these proceedings in the presence or hearing of the child and from permitting any other person to do so;
(b)abusing, belittling, insulting or rebuking the other to the child or in her presence or hearing of the child and from permitting any other person to do so.
15.That the Independent Children’s Lawyer be discharged at the expiration of 30 days from the date of these orders.
16.That all extant applications be otherwise dismissed.
17.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding four hundred and six (406) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.
Dated: 5 October 2021

File number(s):	DGC 1163 of 2016
Judgment of:	JOHNS J
Date of judgment:	5 October 2021
Catchwords:	FAMILY LAW – CHILDREN – best interests – international relocation – where the applicant is the primary carer of the child – where the applicant seeks a continuation of the status quo – where the respondent is seeking a change of residence and that the child be permitted to relocate with her to Country F – where the applicant is not the biological father – where the child’s biological father lives in Country F and is not a party to the proceedings – where the biological father supports the respondent’s application – where relocation of the child is determined not to be in her best interests
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DA, 61DA, 64B, 65C, 65DAA Family Law Rules 2004 (Cth) r 5.06
Cases cited:	Aldridge & Keaton (2009) FLC 93-421 AMS v AIF (1999) 199 CLR 160 at 207-208 Cottey & Backe (No. 2) [2020] FamCAFC 206 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 Mulvany & Lane (2009) FLC 93-404 U v U (2002) 211 CLR 238
Division:	Division 1 First Instance
Number of paragraphs:	406
Date of last submission/s:	10 December 2020
Date of hearing:	22-25 July 2019 and 2-5 March 2020 and 7 September 2020 and 15 October 2020
Place:	Melbourne
Counsel for the Applicant:	Ms Swart
Solicitor for the Applicant 22, 23, 24 and 25 July 2019:	Sharrock Pitman Legal
Counsel for the Respondent 22, 23, 24 and 25 July 2019:	Ms Devine
Counsel for the Respondent 2, 3, 4 and 5 March 2020:	Mr Robertson
Counsel for the Respondent 7 September and 15 October 2020:	Mr Whitchurch
Solicitor for the Respondent 22, 23, 24, 25 July 2019 and 2, 3, 4 and 5 March 2020:	Southern Family Law
Counsel for the Independent Children's Lawyer:	Mr O’Connell
Solicitor for the Independent Children's Lawyer:	McCormack & Co

DGC 1163 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ROBERTS Applicant
AND:	MS LIANG Respondent
MCCORMACK AND CO

ORDER MADE BY:	JOHNS J
DATE OF ORDER:	5 OCTOBER 2021