Stearn & Samsen - [2022] FedCFamC1F 1056

Federal Circuit and Family Court of Australia
(DIVISION 1)
Stearn & Samsen [2022] FedCFamC1F 1056

File number(s): BRC 10091 of 2021

Judgment of: SCHONELL J

Date of judgment: 22 December 2022

Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the mother seeks to relocate four hours away from where the father resides – Where the parties have a highly conflictual relationship – Where both parties seem more focused on gathering evidence than on what is in the best interests of the child – Where the child has not spent time with the father since 30 November 2022 – Where it is not in the best interests of the child for the mother to relocate with the child – Where orders were also made increasing the father’s time gradually with the child.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL

Cases cited:
Adamson & Adamson [2018] FamCA 523

Atwill & Marden [2018] FCCA 1401

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

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

Heath v Hemming (No2) [2011] FamCA 749

Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520

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

Division: Division 1 First Instance

Number of paragraphs: 122

Date of hearing: 22 December 2022

Place: Sydney

Counsel for the Applicant: Ms Pointing

Solicitor for the Applicant: LS Family Law

Counsel for the Respondent: Mr Shoebridge

Solicitor for the Respondent: Dore & Webb Lawyers

Solicitor for the Independent Children's Lawyer: Wallace Perkins Family Law
ORDERS

BRC 10091 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR STEARN

Applicant

AND:
MS SAMSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

22 DECEMBER 2022

THE COURT ORDERS THAT PENDING FURTHER ORDER:
1.Paragraph 17 of Order 1 of the orders made 8 June 2022 is discharged.
2.The respondent mother’s (“the mother’s”) interim application to relocate the residence of X to live within a 40 kilometre radius of B School is dismissed.
3.The parties forthwith do all acts and things to enrol or re-enrol X at C School, D Street, Suburb E
4.The mother do all acts and things to cause X to spend time with the applicant father (“the father”) as follows:
(a)From midday on 24 December 2022 until midday on 26 December 2022;
(b)Each alternate weekend thereafter during the Christmas school holidays for three nights from 9.00 am on Thursday until 5.00 pm on Sunday;
(c)Commencing in Term 1 2023, each alternate weekend from after school Thursday or 3.00 pm until 5.00 pm Sunday; and
(d)One half of each school holiday period at the conclusion of the first, second and third terms of school commencing at the conclusion of the first term of 2023 and failing agreement as to which half, the father’s time shall occur in the first half.

5.The mother is prevented by these orders from attending, or being near, or remaining at or near, any location when the child is moving into the father’s care.
6.The mother is to use a nominee adult known to the child to facilitate changeovers at the start of the time the child is moving into the father’s care pursuant to Orders 5(a), (b) and (d) when changeover does not occur at the child’s school.
7.At least four hours prior to any changeover that does not occur at the child’s school, the parties shall advise the other of the identity of the nominee adult being used to facilitate changeover.
8.In relation to the changeover for the child to spend time with the father from 24 to 26 December 2022, unless otherwise agreed in writing, those changeovers shall take place at the F Service Station at G Street, H Town.
9.In relation to all other changeovers pursuant to Orders 5(b), (c) and (d) unless otherwise agreed in writing, those changeovers shall take place at McDonalds at J Street, City K.
10.All therapy involving X shall be non-reportable.
11.Paragraphs 2–5, 9–16 and 18–21 of Order 1 of the orders made 8 June 2022 otherwise continue to apply.
12.The matter is next listed before a Judicial Registrar for case management at 2.00 pm on 13 February 2023.
13.The costs of all parties are reserved.

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

These are interim proceedings in relation to X born 2013, who is currently aged nine years. X’s parents have been in conflict in relation to her living arrangements since their separation in May 2021. Since that time, the Court has made orders in October 2021 and June 2022 in relation to her living arrangements. The parties have also had the benefit of two Family Reports prepared by Mr L.
Each of the parties raised matters of risk in their affidavits which were canvassed in the Family Report dated 25 January 2022. Notwithstanding the content of much of their affidavits, the parties’ case outline documents and arguments identified the issues to broadly be as follows:
(1)Whether X should be permitted to relocate to M Town, Queensland with the respondent mother (“the mother”) in early 2023 or remain living in City K, Queensland;
(2)What time X should spend with the applicant father (“the father”) over the 2022/2023 Christmas school holidays;
(3)What time X should spend with the father during school terms and school holidays in 2023; and
(4)How changeover should be effected.
Each party sought a continuation of the consensual position that they retain equal shared parental responsibility. The father sought an order that X live with her mother in the event that the mother remained living in or around City K and that she live with him in the event that the mother moved to M Town.
The mother through her counsel indicated that if she was not permitted to relocate to M Town, she would remain living in City K with X.
In relation to live with and spend time with orders, the mother proposed that X spend time with the father each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday and for one half of each school holiday period in 2023. The father sought different orders in relation to X depending on where she was living but largely it represented an alternate weekend arrangement from after school Thursday until 5.00 pm on a Sunday in the event that she remained in City K but only school holiday time in the event that she moved to M Town.
The Independent Children’s Lawyer (“the ICL”) did not support a relocation to M Town.
The parties currently reside in City K. The father is a fly in fly out (FIFO) worker who returns to City K to live when not working.
It was agreed that M Town is approximately a four hour drive from City K.
The mother wishes to move to M Town as she has re-partnered and her partner lives in M Town.
For the reasons that are set out below, I do not consider it to be in X’s best interests at this stage that her residence be relocated to M Town. In those circumstances, therefore, the issue between the parties narrowed somewhat in relation to the competing applications about spending time with the father.
Documents relied upon
The father relied upon the following documents:
(1)Application in a Proceeding filed 23 November 2022;
(2)Application in a Proceeding filed 20 January 2022;
(3)Affidavit of father filed 16 December 2022;
(4)Affidavit of father filed 23 November 2022;
(5)Affidavit of father filed 24 February 2022;
(6)Affidavit of father filed 20 January 2022;
(7)Affidavit of Ms N filed 2 December 2022;
(8)Affidavit of Ms O filed 2 December 2022; and
(9)Case Outline document.
The mother relied upon the following documents:
(1)Response to Application in a Proceeding filed 2 December 2022;
(2)Response to Application in a Proceeding filed 18 February 2022;
(3)Response to Application for Final Orders filed 15 October 2021;
(4)Affidavit of mother filed 2 December 2022
(5)Affidavit of mother filed 18 February 2022;
(6)Affidavit of mother filed 15 October 2022;
(7)Affidavit of Mr P filed 2 December 2022;
(8)Affidavit of Mr P filed 18 February 2022;
(9)Affidavit of Ms N filed 2 December 2022;
(10)Affidavit of Ms O filed 2 December 2022;
(11)Parenting Questionnaire filed 15 October 2021;
(12)Notice of Child Abuse, Family Violence of Risk filed 15 October 2021; and
(13)Case Outline document.
The ICL provided a Case Outline.
All parties referenced Mr L Family Report dated 13 January 2022 and Addendum to the Family Report dated 3 March 2022.
Background facts
The mother was born in 1984 and the father was born in 1984.
The parties commenced cohabitation in or about 2013.
X was born 2013.
The parties separated in or about May 2021.
Mr L initially prepared a comprehensive Family Report dated 13 January 2022 (the report bears a date of 13 January 2021 which is clearly a typographical error).
The Family Report is based upon interviews conducted with the parties and with X in December 2021 as well as perusal of a number of documents.
At the time of this Family Report, the mother had not indicated an intention to move to M Town.
Mr L identified the following matters:
23. The mother raises concerns about the father being increasingly aggressive and abusive towards her during the relationship, to the point she feared the next step would be physical violence. He was emotionally abusive to her in front of [X].
24. The father denies the characterisation and says she concocted allegations to bolster her legal position.
Mr L identified from the interviews with the parties that there were various risk factors including the mother’s allegations that the father was aggressive towards X including being emotionally and physically aggressive, that he was a persistent and regular user of a prohibited substance and that he displayed paranoid and psychotic episodes in 2015 that led to a hospital admission in 2017.
The mother’s allegations were described by the father to Mr L as either untruthful or exaggerations.
The father did not spend any time with X from shortly after separation until the making of orders in October 2021.
Thereafter the father’s time was supervised pursuant to court orders.
Mr L reports and observed as follows in the Family Report:
141. [X] is a primary-school-aged child, young for her year group, who appears to be functioning reasonably well at school, maintaining social connections and with a strong emphasis on equestrian competition. The father is concerned about her application to schoolwork and the extent to which she copes with the curriculum, though no learning or developmental needs are identified.
142. Because of the profound disconnection, the father is limited in his ability to comment on how [X] has been coping emotionally since the separation. He observes that she connects reasonably well with him by telephone and the recent contact centre visits have been generally positive, though the physical affection she shows him is notably different to their dynamics before the separation.
143. The mother states that, since the separation, [X] has been noticeably more anxious, insecure and vigilant, particularly at night. She now co-sleeps with her and maintains close proximity. She suffers from sleep disturbance and needs to check the house is locked up.
144. [X] cannot be expected to have much foresight nor an ability to independently measure when she will see a loved-one again. She is more suited to structures applied in a consistent and regular manner, where peaceful transitions can occur at child-friendly times. She remains heavily dependent on secure, trusted caregivers to meet the bulk of her physical needs, to keep her to a routine and to provide her with hands-on, nurturing support and to keep her safe from harm.
145. The mother has been [X’s] primary care giver since infancy, with the father working various fly-in, fly-out roles. Since the separation approximately eight months ago, the mother has been [X’s] exclusive caregiver and she has had a substantial disconnection from the father.
…
150. I think various factors are likely to underpin [X’s] views expressed in this setting, including:
a. An exposure to dynamics of conflict and mistrust between the parents before the separation and an observation of the father as the aggressor in those dynamics.
b. A structural history that has seen her more emotionally dependent on the mother on a consistent basis, with the father coming in and out of her daily life, which in all likelihood contributes to an emotional alignment with the mother.
c. A set of behaviours, described by the mother, which are consistent with an enmeshed, somewhat anxious attachment with the mother at this stage.
d. Her exposure to what, on either account, appears to have been a sudden, emotionally charged and confusing separation, in which she possibly shares a similar perspective of events as the mother.
e. A profound disconnection from the father since the separation.
f. An exposure to the mother’s distress, emotional intensity and vigilance surrounding [X’s] connection to the father.
151. [X] does not possess the maturity to understand the consequences of her future care arrangements upon her relationships. The clear message she imparts, with a notable level of conviction, is that she is unlikely to cope with too much change all at once and she longs for a greater sense of peace and stability between the parents.
…
153. If the Court accepts the mother’s description of the dynamics before the separation, they are consistent with coercive controlling family violence, in which the father was principally the aggressor, exercising verbal and emotional abuse of the mother on a persistent, ongoing basis and openly in front of the child.
…
156. If the Court accepts the father’s description of the dynamics before the separation, they are not consistent with a typology of family violence. The account he offers suggests [X] may have had some concept of bickering and disharmony between the parents. He acknowledges looking through the mother’s phone at the time of separation, though he offers a different context and description of behaviour surrounding those events. He suggests the mother’s current level of aversion to him is based on her strong desire to gain an upper hand in these legal proceedings and if she holds any genuine aversion to him or to [X’s] relationship with him, then she is mistaken.
…
159. There is also little information to suggest that the father has ongoing substance abuse issues. He says he has been abstinent for well over a year and his cannabis use was sporadic and infrequent. The mother suggests he engaged in more frequent, regular use of [a prohibited substance] and possibly other drugs, which led to adverse outcomes of paranoid, highly anxious and possibly delusional thinking.
...
161. Risks aside, it appears clear [X] is likely to struggle with rapid expansions of time with the father. The mother is also likely to struggle with the idea, which, in turn is likely to be obvious to [X]. There is a risk that any expansion of time which moves too rapidly is likely to be counter-productive given the level of stress or discomfort it will cause the child.
Mr L in his report identified that there were advantages and disadvantages to the then respective positions adopted by each of the parties. Having addressed each of the advantages and disadvantages in the proposals of each of the parties, he opined as follows in the Family Report:
171.Given the vastly different accounts provided by the parents, it is likely the Court’s findings will have some bearing on my overall views. At this juncture and on the information provided, it is difficult to see how an equal-shared living arrangement is likely to be sustainable given [X’s] structural history, her level of aversion and the highly conflicted co-parenting dynamics. I do not recommend it.
172. I am of the view that [X] is likely to benefit from an ongoing, regular connection of substance with the father, which is more likely to have success if the time gradually expands in a supported fashion, so she is not destabilised by an abrupt disconnection from the mother. The more the mother can be assured about the father’s functioning and stability, the more likely she is to be able to facilitate and promote the relationship.
His ultimate recommendation was that X should remain living with the mother and time with the father should transition to overnight time from about Term 3 2022, including that the father spend two and three night blocks of time with X in the 2022/2023 summer school holidays, and that time should thereafter progress to alternate weekends from after school Friday to before school Monday and increasing blocks of holiday time.
The Addendum to the Family Report was prepared in March 2022 following upon the mother seeking to relocate X’s residence to M Town. The Addendum to the Family Report followed again interviews with each of the parties, the mother’s new partner and X as well as the perusal of further documents.
Mr L reported in the Addendum to the Family Report as follows:
2. [Ms Samsen] has re-partnered to [Mr P], a […] Manager, working in M Town and living in housing supplied by his employer […]. She is now seeking to relocate with [X] to [M Town], to commence a de-facto relationship with [Mr P] from the beginning of Term 2, 2022.
3. As he foreshadowed in the Family Report, [Mr Stearn] has moved to a rented home in [City K]. His lease will expire in [mid] 2022. He remains in the same employment, though continues in a FIFO role, in and out of [City Q]. He opposes [X’s] relocation to [M Town], at least for the remainder of the 2022 school year.
…
5. The father states the disruption to time with [X] has been caused by changes to his work roster, and the mother being inflexible. The mother denies that characterisation and states that she took [X] to a pre-organised visit in January, but the father did not attend and gave no notice.
…
7. The mother filed a Response to an Application in a Proceeding proposing that [X] spend supervised time with the father on alternate Saturdays/weekends as follows:
a. 4 x visits, lasting two hours;
b. 3 x visits, lasting four hours;
c. 3 x visits, lasting six hours;
d. Overnight time from 11 am Saturday until 4 pm Sunday.
8. In respect of supervision, she proposes the maternal grandmother, [Ms R] or another person as agreed and the requirement for supervision ceases at the conclusion of Term 4, 2022.
…
10. In her interview, the mother states that she is not seeking strict terms of supervision, instead that the maternal grandmother remains present to support [X] and the father, particular as the time between them expands, and when overnight time commences.
…
14. In his interview, the father states that he is not necessarily opposed to [X] relocating with the mother to [M Town] but wants her to complete the 2022 school year in [City K] and have greater assurance by then about the mother’s willingness to promote and facilitate [X’s] relationship with him.
…
19. He has had persistent difficulty negotiating supervised time on weekends with [X] because [Ms Samsen] has been inflexible about changing the dates to suit changes to his FIFO roster. He did not see [X] for several weeks and the visits resumed this year on 12 February 2022, the weekend before this interview.
…
21. He questions the timing of [Ms Samsen’s] change of heart in agreeing to [X] seeing him last weekend and expressed mistrust in whether she truly wants [X] to have a relationship of substance with him, or whether she is trying to give off that impression because she wants to relocate.
…
24. He is concerned about the disruption a relocation to [M Town] will pose to [X] this year, as it means she will leave behind a good school for a smaller school and will end up in a composite class. She has been through a lot of change already.
…
28. He is not opposed to revisiting the notion of relocation occurring at the end of the year, however he would like the situation to stabilise and to be more assured that [X] can transfer between the households by then.

In relation to X, Mr L observed in the Addendum to the Family Report:
62. [X] makes no complaint about the father. She remains change-resistant and adverse to spending overnight time with him, though contrastingly she appears positively invested in the idea of changing schools and towns to live in [M Town] with the mother and her partner. She acknowledges some of the magnitude of the change, in terms of saying goodbye to school friends, though she cannot be expected to be of an age to understand the wider long-term consequences of such a change. Rather, it is reasonable to expect that she trusts her mother’s judgement.
Consistent with the approach adopted in his earlier Family Report, Mr L identified that there were various advantages and disadvantages associated with the mother’s application to relocate to M Town as well as various advantages and disadvantages for X if she remained living in City K.
Mr L concluded his Addendum to the Family Report as follows:
74. I am of the view that the mother is seeking to relocate with the child for positive and genuine reasons. There is much to support her proposal in the longer term, particularly if it is assumed that [X’s] primary care will be met by the mother for the bulk of her childhood. There is the likelihood of [X] ending up with two parents who enjoy a higher level of social integration and support in the longer term.
…
76. I am also concerned that there is not enough information at this stage about the ability of the parents to develop a functioning terms of engagement with each other - if one assumes that [X] starts to make more seamless transitions between the parents over the course of 2022.
77. To that end, while I see merit in [X] potentially relocating with the mother at the end of the 2022 school year, I have difficulty recommending the transition at the end of Term 1, 2022. I am not of the view that the mother’s social circumstances in remaining in [City K] for the remainder of the 2022 school year are so dire as to warrant the relocation at this juncture.
The matter came before the Court on 8 June 2022 by way of interim hearing. The parties were able to reach agreement in the form of a Minute of Order, which provided for an order for equal shared parental responsibility and an increase in the father’s time with X such that by 23 July 2022, X’s time with her father would move to one overnight each week and from the commencement of the Christmas school holidays, X would spend time with her father for two nights. The matter was otherwise listed for a further interim hearing on 22 December 2022.
It was clearly the contemplation of the parties by the terms of the orders that they agreed to that X’s relationship with her father should progress from that which had been the position in the preceding twelve month period.
Each of the parties in their affidavit addressed the time arrangements between X and her father subsequent to the making of the orders on 8 June 2022.
The mother observed as follows:
15. On 3 July 2022 [X] spent 6 hours with [Mr Stearn], in accordance with the 8 June 2022 Orders, with changeover at the [S Venue]. Changeover was successful with no distress for [X].
[X] came home from the visit and said, “Dad said something different today. He said if mum comes home upset from court it’s not my fault that she’s sad”. I explained to her this was an adult topic and for her not to won-y about it.
(Mother’s affidavit filed 2 December 2022)
The mother says in her affidavit that X reported to her that on occasions the father was angry, and that X was upset that her father had yelled at her. The mother in her affidavit also says that on various occasions X said to her that she did not want to see her father.
However, on other occasions the mother reports X as being happy and made no complaint to spending time with her father. In that respect, she says:
30. 20 and 21 August 2022 was the third overnight stay under the 8 June 2022 Orders
Changeover was successful. I sent [X] to her fathers with her bicycle and […] helmet. When I collected [X] on 21 August 2022, she appeared happy. She told me her nanna and great grand dad had visited overnight. She also told me she had a sore neck.
…
32.On 24 August 2022 [X] called her father. After the call, she told me she had read a book to her father and felt more comfortable and happier reading to him. She was smiling and happy. I was happy to hear from [X] that the call went well.
(Mother’s affidavit filed 2 December 2022)
However, on other occasions the mother reports:
35. 3 and 4 September 2022 was the fourth overnight stay under the 8 June 2022 Orders.
Changeover was good. [X] and I had previously purchased a Father's Day present for her father. She forgot her gift to give to [Mr Stearn]. On pickup I brought it with me so she could give it to her dad.
36. On 4 September 2022 when I arrived to collect [X], she came running to me. She got into the car upset. I asked if she was ok. She said, “I don’t want to talk about it, I just want to go home”. I comfo1ied [X] and she held my hand all the way home.
(Mother’s affidavit filed 2 December 2022)
The father for his part presents a different picture. He says:
3. Initially, and until late September 2022, the time [X] spent with me occurred pursuant to the Order, and went really well. When we started overnight time, [X] had a couple of moments where she would become quiet. I would speak with her about whether she was missing her mum, and wanted to call her. Just acknowledging that [X] had some anxiety about missing her mum seemed to be enough, and then she would relax.
…
5. On 17 September 2022, which was near the start of [X's] school holidays, she refused to come into my care. I was running late, stuck in […] highway traffic. I contacted [Ms Samsen] and she agreed to go and wash the dogs with [X], before returning to the park where we conducted changeovers. I was heartened by the ease with which [Ms Samsen] and I communicated about a me being stuck in traffic. When I arrived, [X] did not want to leave the car. I ended up speaking with her on the ‘phone. She was fine, albeit subdued. She was not crying. [Ms Samsen] and I continued messaging. [Ms Samsen] described [X] as crying, very distraught, and traumatised. I appreciate [X] may behave differently for each of us, but that was not my experience during my call with [X]. [Ms Samsen] and [X] ended up driving off. I messaged a little later, suggesting [Ms Samsen] return to the park with [X]. The last message from [Ms Samsen] at 5:17pm indicated she would update me about [X] the next day.
…
10. On 1 October 2022, I attended the Contact Centre. [X] came in with a variety of items including her bicycle. She appeared miserable. We spoke for a little while, and hugged each other. [X] eventually went to leave [T Contact Services] with me. [Ms Samsen] was still there, with her car engine still running, parked about 1 metre away from the door. Before we went to leave, I asked [X] if she wanted to quickly go and say goodbye to her mum. [X] indicated she did, and went out to [Ms Samsen’s] car. [X] got in the car, and did not return. [Ms Samsen] drove away. The contact centre called [Ms Samsen] and tried to encourage [X] to come back. It was disastrous, and very upsetting. [Ms Samsen] returned later that day to the contact centre, but [X] still refused to leave [Ms Samsen's] care. We tried again on the Sunday. It was supervised. [X] and I did not leave the contact centre.
(Father’s affidavit filed 23 November 2022)
There were two significant events subsequent to the making of the June 2022 orders which each party addressed in their affidavit. One was an event that occurred at a general practitioner’s surgery in late 2022 and another took place at X’s school in late 2022.
In relation to the incident at the general practitioner’s surgery, the father says:
13. [In late] 2022, I was supposed to collect [X] from school in line with the agreement reached to vary the Order for Te1m 4. However, [X] did not attend school. [The day before], [X] called me and asked “how about a Saturday morning pick up this weekend?” I asked her why, but she was unable to answer. I told her that was something I would discuss with her mum, and not something for her to worry about.
14. I received a message from [Ms Samsen] seeking confirmation that [X] would be seeing me from [the Saturday] at 9am until [the Sunday] at 5pm. I then received a message from [U Health Service] where we are attending family therapy indicating that [Ms Samsen] wanted to take up an appointment for [X] that had become available because of another client's cancellation. I had booked [X] into the GP for a 4pm appointment [on Friday] to get her a MHCP so that her ongoing [U Health Service] appointments would be more affordable. I relayed this to [Ms Samsen], noting that I was supposed to be there for [X's] next appointment with [U Health Service], according to the advice we received from [U Health Service], and that I wanted the MHCP before [X] had her next [U Health Service] appointment. [Ms Samsen] insisted on attending the GP appointment, saying we could do changeover at the doctor's clinic, with [X] leaving with me after the appointment, instead of the school pick up.
15. We sat in the same room with the GP that afternoon. [Ms Samsen] did not seem to know anything about the MHCP, or its purpose, even though it is specifically mentioned in Order 16. When it came time to leave, things deteriorated rapidly. [Ms Samsen] said she would go and get [X's] bags from the car. [X] clung to [Ms Samsen's] hand saying “no” in an unconvincing tone of voice. I started asking [X] to come with me, so [Ms Samsen] could go and collect the bag. At this point, the GP came out and said “Don’t do this here”. I agreed and asked [Ms Samsen] to talk with me outside. I left the waiting room and went outside.
16. [Ms Samsen] stayed inside with [X], and I could see them both becoming emotional. I went and sat near my friend's car in the carpark. [Ms Samsen] and [X] came outside and started walking towards [Ms Samsen's] car. I called out, asking [X] to at least say goodbye. She would not, and she hid herself behind [Ms Samsen].
17. [Ms Samsen] and I started talking. I was upset by this time, and regrettably said something like “Look at what you’re doing to her. How can I ever have a chance to fix this when you are making it so hard by being here?” [Ms Samsen] replied, saying something like “I’ve always tried to work with you”. I was stunned at her assertion, and said something like “How can you say that when you kept [X] away from me for over a year?”
18. I asked [X] to go to her mother's car, but she would not. I asked [Ms Samsen] something like “How are we going to make this work? I’m flying all over the place to see her. I want the best for you. I’m happy if [X] has a good relationship with this guy. I just want to be part of my girl’s life and you keep trying to stop me”. She said something like “ok, but when you’re on the ‘phone with [X] and you start yelling ...” I interrupted her and asked if she was listening to the call, which she denied. I explained that did not happen. She then said something like “She wants me here to support her”. I said “You’re setting her up”.
(Father’s affidavit filed 23 November 2022)
The mother for her part says:
58.… [X] and I sat in reception. [Mr Stearn] arrived shortly after. [X] looked up and said, “There's dad and he is videoing us again”. I did not reply. [Mr Stearn] called [X] over to him. She grabbed my arm and wouldn’t let go. I said, “its ok [X], you can go and see dad”. [Mr Stearn] kept saying, “Come on, [X], come here”. He then stood and stated loudly to staff in the area, “What are the rules around here? Are they meant to be wearing masks?” while waving his arms around in an aggressive manner. [Mr Stearn] was still videoing on his phone.
[Dr V] came out and took [Mr Stearn] to the room. A few minutes later the doctor came back out and asked [X] and me to come into his consultation room. [Mr Stearn] was sitting on the bed. I sat next to [Dr V], [X] sat beside me. The doctor asked if I knew what a mental health plan was. I said, “I know something about it”. [Mr Stearn] then stood in front of me and said, “This is no trick [Ms Samsen]. It's just to get it cheaper so I don't have to pay so much with the therapy. It’s no joke, I'm not trying to trick you. Ask the doctor” The doctor said, “Do you agree?” I said “Yes”.
While this was happening, [Mr Stearn] kept saying to [X], “Come here, come here”. [Mr Stearn] then grabbed [X's] arm and pulled her to him. He held both her arms and said, “Give me a cuddle [X]”. She gave him a cuddle. Then he said, “I have got something for you. Do you want it?” He gave her some mixing cups and said, “We can make a cake”. [X] said, “What, here?” [X] was surprised and embarrassed. They started talking about the size of the cups. The doctor turned around and said to us both we need to work together for [X]. He stood and opened the door. I walked out first and left [X] with her father. [X] then ran up the hallway and grabbed my arm. She pulled me down and said, “I’m not going mum, I'm not going”. I said, “its ok [X]”. She started to pull me back from the door. [Mr Stearn] sat in the seat next to the door and started to ask [X] to come to him. She then hid behind me. He started to get louder and said, "Let go of her hand [Ms Samsen]". [X] had hold of my hand in her hands and would not let go. I held my hand up to show [Mr Stearn] I didn’t have her hand and that she had mine. I said “[Mr Stearn], she’s clearly got mine”. The doctor cleared the waiting room and said, “This is not the place to do this.” I said, “I know, I’ve been trying to get help all day for [X] and [Mr Stearn] wouldn’t let us go. I wanted to have this all sorted before it came to this”. [Mr Stearn] said “Be the parent [Ms Samsen], tell her she has to come with me, she's meant to come with me”. I bent down to [X] and said, “its ok [X], you can go with dad and make a cake like dad said and it is still early you might be able to go to the beach, while you and dad pick the cake you want to make. I'll put your bag at dad’s car.”
[X] started to cry. [Mr Stearn] stood up and said loudly, “This is just bullshit [X]”.
[Dr V] opened the door and [Mr Stearn] went outside. The doctor said to me, “You guys need to sort this. This is not helping [X]". I asked him, “What else can I do? I've asked [Mr Stearn] for change over at [T Contact Services], I called the school and said I can’t get her to go, I called the [U Health Service] and booked an appointment at 11.30am so we would have plenty of time to make this doctor's appointment. I've tried everything. [Mr Stearn] will not allow any help. Is there anything else I can do? We need help”.
[Mr Stearn] had walked to the door again; the doctor opened the door just a little bit. I'm not sure what was said but [Mr Stearn] walked to the car. The doctor said, “It’s clearly not going to happen today, [X] is too upset.” [X] was asking me to take her home. The doctor said “You need to take [X] home and get this sorted” he continued, “[Mr Stearn] is at his car, you can head out now.”
[X] and I left the doctors and started to walk to the car. [Mr Stearn] ran over to us and started yelling at us again. [X] grabbed me by the arm and said, “Let’s go mum, let’s go”
We were trying to walk away, and [Mr Stearn] kept saying to me “It’s all your fault [Ms Samsen]”. I said "If you had listened to [X] on the phone, she was asking to spend more time with you. She wanted to have a good weekend with you. I am encouraging [X] to go”. [X] said to her dad “Yes mum is, she has been encouraging me to go”. [Mr Stearn] said, “I can't believe you [Ms Samsen], I want to trust you, but I can’t”. He started to get mad and yell. He yelled, "If your sister didn't get involved from the start this wouldn't be happening. She's nothing but a cunt". [X] was scared and ran to the car and locked herself in the car with her hands over her ears crying. [Mr Stearn] kept yelling at me, "This is fucked [Ms Samsen]. Your sister is a cunt".
I did not respond. I kept walking to the car. When I got into the car [X] was crying. She gave me a hug. I asked her if she was ok. I held her hand and said, “Let’s go home”. We left and went home. [X] was very upset and traumatized. I kept reassuring her.
It was self-obvious following this traumatic incident [in late] 2022 there was no prospect of [X] spending time with [Mr Stearn] the following day as contemplated in the 8 June 2022 Orders and there was no further contact from [Mr Stearn] on either [day] about the possibility of spending time with [X] [the following day].
(Mother’s affidavit filed 2 December 2022)
There is some objective evidence about what occurred at the surgery, which is gleaned from some notes of Dr V’s consultation:
[Mr Stearn] made an appointment to get a Mental Health Care Plan (MHCP) done for his daughter [X]. An hour or so prior to his appointment, his ex partner and their daughter turned up – [Ms Samsen] asking for a MHCP for [X]. Staff explained to [Ms Samsen] that there is no availability and that she will need to make an appointment. She then advised that the appointment for [Mr Stearn] was to get the MHCP and that they will sit and wait until he turns up.
[Mr Stearn] was quite upset when he arrived and [Ms Samsen] was present in the surgery. She turned up on her own, was not arranged by us. His words when he entered the office was “what is going on here”.
He explained what he wanted. He was happy for [Ms Samsen] and [X] to be present in the office while I was doing the MHCP. Initially [X] didn't want anything to do with [Mr Stearn], but after a few minutes, she opened up and sat with him. He had some measuring cups with him and asked her about how many of this one is equal to that one etc.
While they were in the office, I did explain to both parents what a MHCP is and what the purpose of the plan is. For [Mr Stearn] the MHCP was mainly to help with the financial burden.
During the consultation I also verbalised that in my opinion the parents needs to settle their differences for the sake of their child.
One could obviously feel and see the tension in the room. [Mr Stearn] was suppose to get [X] from school and she was suppose to go with him today for the weekend. She didn't want to go Friday, but was happy to go Saturday and Sunday – this was according to [Ms Samsen].
Once the consultation finished, [Mr Stearn] wanted [X] to go with him. Reception staff came in and called me as “he is giving them a hard time” [X] obviously didn't want to go with [Mr Stearn], started crying and was clinging to [Ms Samsen]. There was 2 other patients in the waiting room, we got them out to the back of the surgery.
[Ms Samsen] refused for [X] to go to [Mr Stearn]. [Mr Stearn] wanted me to change the wording anxiety on the MHCP - I refused as [X] is well and truly anxious about this whole thing. Again voiced my opinion that I don’t care what the parents differences are, they need to get in line for the sake of their child. After some words, [Mr Stearn] eventually walked away.
I then told [Ms Samsen] to take [X] to her home.
I don't have any knowledge from what happened after this.
(Mother’s affidavit filed 2 December 2022, Annexure MS13)
The other significant event is that which took place at X’s school in late 2022. In relation to this event, the mother says:
67. I received a phone call from [X's] teacher [Mr W] at or about 2.50pm [in late] 2022. [Mr W] was distressed/agitated/upset to the point where I had some difficulty properly understanding his speech. I did however understand from [Mr W] that [Mr Stearn] was at the school to collect [X]. That [X] was refusing to go and that a violent and uncontrolled situation had developed. [Mr W] suggested I immediately make may way to the school.
68. When I arrived at the school I saw [X's] peers were gathered. They were all visibly upset and crying. Several children came to me and explained what had happened and that they had all been around and seen what had happened.
(Mother’s affidavit filed 2 December 2022)

The father says:
15. [In late] 2022, I went to the school to pick up [X]. She refused to leave with me. Her teacher, [Mr W], assisted. He took [X] into the classroom to speak with her. I mentioned to him that if [X] refused to go with me, then he ought to call [Ms Samsen]. I stood outside [X's] classroom, leaning against the outer railing of the passageway outside her room. It is about a 3 metre distance between where I stood, and the open glass door to her class.
16. [X] was sitting near the teacher's desk while [Mr W] spoke with her. At no time was [X] distressed as [Ms Samsen] described, “to the point where she was having difficulty breathing”. Nor was [Mr W] ever “distressed/agitated/upset” or having any difficulty speaking clearly.
17. I tried calling [Ms Samsen] at 2.54pm to see if she could come to the school, just in case [X] refused to leave with me. She did not answer my call. But shortly after, she turned up. At no time did I tell her she could not go in to see [X]. I asked her something like “[Ms Samsen], [Mr W] is talking with her. Can you just give them a moment please?” She said something like “alright [Mr Stearn]” and she turned and walked away. At that stage, [X] would not have seen [Ms Samsen]. I did not block her access to the classroom. The passageway outside of the classroom is about 3 metres wide, and there was an open sliding glass door. If she had wanted to, she could have easily walked past me.
18. [Mr W] then came out to speak with me, describing how [X] switches from being positive about me, to negative about me, and her focus is on missing her mum. While he was talking with me, [X] was still in the class, quietly and calmly sitting on the chair. She could see [Mr W] talking with me, but probably could not hear us as we were about 7 metres away from her. While we were talking, [Ms Samsen] walked behind [Mr W] and into the classroom.
19. At no time were staff at the school having to manage me, as [Ms Samsen] infers. Nor was there any time where the situation was “violent and uncontrolled”.
20. Again, the recordings demonstrate my view that [Ms Samsen’s] evidence is wrong, or grossly exaggerated, or adopting a negative view where there was no reason.
(Father’s affidavit filed 16 December 2022)
Given the circumscribed nature of these proceedings and the absence of cross-examination, I am unable to make findings as to what actually occurred on these two occasions.
However, that does not prevent me from concluding having considered all of the evidence that neither party acted with X’s best interests at heart. How each of them conducted themselves on these occasions is emblematic of the high degree of conflict that X has to navigate in ensuring that she maintains a relationship with each of her parents. The parties need to seriously reflect upon the emotional harm that they are occasioning to their much loved daughter.
The father’s videotaping of occasions with X and third parties was entirely inappropriate irrespective of any perceived justification for doing so. Likewise, the mother’s actions in reporting the matter to the police will only have the result of inflaming an already volatile situation and suggests little more than some tactical manoeuvre, particularly in light of the orders that she now seeks for the father to spend unsupervised alternate weekend and half school holiday time with X. Each party’s conduct has only made the parenting dynamic worse (if that is possible) but more importantly made it harder for X. It is open to conclude in the absence of an explanation that both seem more focused on gathering evidence rather than on what is in the best interests of their daughter. This conclusion is borne out by the expert evidence.
Since the events of late 2022, X has not spent any time with her father. In light of the orders the mother seeks in her Case Outline, it is unexplained why she has not complied with the existing orders.
As a consequence of the orders made on 8 June 2002, X has engaged with Ms O, who is described as a credentialed mental health social worker.
Ms O has had three interviews with X, none of which have occurred in the presence of her father. Ms O records in her report the following:
[X] describes positive time spent between herself and [Ms Samsen], and herself and [Mr Stearn]. She identifies feelings of happiness when she is in the company of either.
[X] identifies several concerns in relation to challenges presented to her as she negotiates spending time with both parents. These include:
•Communication with [Mr Stearn], specifically regarding changes to time arrangements, presents responses from [Mr Stearn] that [X] experiences as distressing. She identifies that [Mr Samsen] will ask her questions such as 'why do you need the change', that she feels she is unable to answer. When she is unable to answer, [Mr Stearn] will at times terminate phone calls or raises his voice. She is able to identify that [Mr Stearn’s] responses are likely caused by underlying feelings of confusion.
•[X] identifies conflict between [Mr Stearn] and [Ms Samsen] as areas of concern. She describes her parents as being unable to communicate and that they regularly engage in yelling behaviours in her presence.
During the session that occurred on the 24/11/2022, [X] expressed a wish to not spend time with [Mr Stearn]. Through discussion, [X] articulated a wish to not be exposed to conflict between [Mr Stearn] and [Ms Samsen], and that she not be exposed to adverse responses from [Mr Stearn] directly to her, specifically during phone calls. She felt not seeing [Mr Stearn] would achieve these goals.
Assessment
…
It is assessed that the co-parenting relationship between [X's] parents presents emotional challenges for [X], exposes her to adult issues and related responses, and has contributed to [X] self-identifying a solution, through expressing a wish to not spend time with [Mr Stearn], as [Mr Stearn] and [Ms Samsen] have been unable to address the underlying issues to date.
Of concern is [Mr Stearn’s] responses directly to, and whilst in the presence of [X]. Although these responses appear to be triggered by conflict between the parties and contributing factors such as changes to time arrangements, yelling behaviours are likely to be negatively impacting on [X's] experience of [Mr Stearn].
Of additional concern is the reported deterioration of the relationship between [X] and [Mr Stearn] with the commencement of therapy. Informal communication with [Ms Samsen]. with reception and myself, has indicated a strong wish for information from [X] to be documented for use in family law proceedings. Therapeutic intervention in the area of separated families and children, is orientated towards problem solving and it is acknowledged that this shift can be challenging for families embroiled in family law matters however a focus on reporting can detract from therapeutic outcomes.
Recommendations
It is recommended that [Mr Stearn] and [Ms Samsen] engage in a series of regular individual appointments with [Ms N] at our practice, with the goal of addressing:
•[X] being exposed to, and engaged in, adult matters such as time arrangement changes;
•Conflictual responses from [Mr Stearn] and [Ms Samsen] to each other in the presence of [X] and strategies to emotionally regulate in the context of disagreement;
•[X] having knowledge of [Ms Samsen]'s activities during her time with [Mr Stearn] that she perceives as 'missing out on';
•[X] being exposed to conflictual responses directly from [Mr Stearn] and strategies for [Mr Stearn] to emotionally regulate in these contexts.
It is recommended that [Mr Stearn] and [Ms Samsen] engaging in individual sessions is of utmost priority. The triggering factors as reported by [X], relate to co-parenting conflict. [Mr Stearn’s] adverse responses in [X's] presence, to these adult co-parenting issues, are contributing to [X's] willingness to spend time with [Mr Stearn] and the security of this relationship. Sessions with [X] are orientated to therapeutic support for her in managing the impacts of living in a separated family.
(Affidavit of Ms O, Annexures MO4–7)
Ms N, who is also a social worker was a witness in the mother’s case. The mother has attended upon her on a number of occasions. One of her recommendations was:
Recommendations
…
•Given the account of [Ms Samsen], my clear view is that [X] will likely be exposed to parental conflict if her parents continue to effect handover of care for [X] to her father, regardless of what [X's] parenting arrangements are and that [Ms Samsen] and [Mr Stearn's] parenting relationship will continue to be negatively affected in this context. My view is therefore that handover of care for [X] needs to be done via a third party until the parties can more effectively communicate.
(Affidavit of Ms N, Annexure MO3)
As I recounted earlier, the issues in these proceedings, notwithstanding the vast amount of evidence that each of the parties has marshalled, really relate to whether or not the mother should be permitted to relocate the residence of X to M Town at this stage of the proceedings, what the time arrangements should be for X with her father over the Christmas school holidays and next year, and how changeovers should be effected.
Submissions of the father
The father relied upon the matters set out in his Case Outline. He submitted that there has been a deterioration in his relationship with the child since late 2022. The father says that a move of the child from City K to M Town is likely to imperil the relationship that he has with the child. The father says that the child’s educational needs are currently met attending the child’s school in City K and his attempts to communicate with B School have been ignored by the principal.
He says that the mother’s conduct is such that she interferes with changeovers, causing distress to the child. He submits that the mother’s “aversion” to time with the child has increased and that a move to M Town will only aggravate the current situation. The father says that he is unable to move to M Town and cannot secure accommodation in the area. The father submitted in his Case Outline as follows:
12. There does not appear to be any improvement regarding the problematic enmeshed nature of the relationship. If anything, the child presents as more anxious, and more inclined to align with the mother. The child is reported as having to navigate mother-instigated changes to the time the child is supposed to spend with the father under the Order, causing confusion for the father, and angst for the child.
The father also submits that the mother has misused family therapy and used it as a source of information gathering against the father. Further, a move to M Town would mean that the child’s ability to engage in therapy would be compromised. Overall, the father’s submissions were that a relocation at this stage is inconsistent with the child’s best interests and that there needs to be a consolidation of the child’s relationship with the father before relocation can be contemplated.
Submissions of the mother
The mother’s counsel submitted in accordance with his client’s affidavits. He submitted that it is overly simplistic to lie entirety at the feet of the mother the blame for all of the problems in X’s relationship with the father.
He submits that the evidence demonstrates an inability on the part of the father to contain his emotions in the presence of X and it is his emotional reactions that have led to X’s resistance to spending time with her father. He says that the father has significant issues that he needs to address, including taking responsibility for the part he has played in the issues before the Court. He submits that the absence of any responsibility on his part is an impediment moving forward. He urged that what the Court needs to do is allocate an urgent hearing date to the matter. He submits that not too much reliance can be placed on the reports of Mr L as they are now aged. He submits that the mother’s time arrangements are the ones that are mostly likely to work for X. He says that the father’s time arrangements for block periods of time are not supported by the evidence.
Submissions of the ICL
The ICL relied upon her Case Outline. That outline submitted that the deterioration in the child’s relationship with the father is a matter of some significant concern. The Case Outline records:
7. The ICL submits that there are concerns given the poor coparenting relationship and inability to provide the child with a smooth and conflict free changeover. It is noted that both parties assert blame in respect of the other.
8. Noting that [M Town] is a remote location and the Father has not relocated within a closer proximity at this juncture, the ICL submits that there remains concerns as to how changeovers could be effected smoothly and conflict free. It is submitted that it is unlikely the parents could facilitate this process given the evidence.
The ICL referenced the Addendum to the Family Report and the reports of Ms O and Ms N, indicating that the parties need to undertake further engagements to improve their co-parenting relationship. The ICL also raised issues about how changeover can be effected if there is a relocation to M Town and that this could place further stress on what is already a stressed parental relationship. The ICL supported the view that the parties should not be involved in the changeover of the child given their inability to refrain from engaging in conflictual behaviours.
The real issue as identified by the ICL was the high degree of conflict between the parties and the decisions they were making which placed X at the centre of the conflict. She submitted they needed to reflect on what they were doing and engage in therapy.
Overall, the ICL submitted that she was not supportive of a relocation at this juncture.
Applicable law
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many. I am unable to resolve any of the disputed assertions, particularly those surrounding the events of 11 and 30 November 2022.
However, just because I am unable to determine or resolve disputed facts or assertions does not mean that I ignore allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
88. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523 (“Adamson”), McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
I also note the observations of Judge Brown in Atwill & Marden [2018] FCCA 1401 (Atwill & Marden”), which are apposite to the orders that the mother seeks on an interim basis, namely the relocation of X to M Town. This involves a change against the background of quite significant upheaval to date in her relationship with her father and a move that will involve some considerable change for X including changing schools.
In Atwill & Brown, her Honour observed:
90.Two of the principles underpinning Part VII of the Act [section 60B(2) encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
91.For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
92.This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
93.The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
94.In Morgan & Miles, which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
95. The comments, of Warnick J referred to, were as follows:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
(Footnotes omitted)

I agree with those observations.
Primary and additional considerations
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties would contend that what they propose meets the criteria of a meaningful relationship with the other parent.
Whatever might have been the status of the allegations of risk and harm raised by them exhaustively in their affidavits, in light of the time arrangements that each proposes, namely, unsupervised time each alternate weekend and in school holidays, it must be implicit and evinces in and of itself that as far as the parties are concerned, such risk of harm as previously existed can be accommodated and managed by the orders they propose.
I am of the view, however, that there remains a risk of harm to X. It is one for which both parties bear responsibility. The risk of harm relates to the parental interaction and the conflict over what is in X’s best interests. In that respect, I note Ms O’s observation that:
… the co-parenting relationship between [X's] parents presents emotional challenges for [X], exposes her to adult issues and related responses, and has contributed to [X] self-identifying a solution, through expressing a wish to not spend time with [Mr Stearn], as [Mr Stearn] and [Ms Samsen] have been unable to address the underlying issues to date.
(Affidavit of Ms O, Annexure MO6)
I agree with that conclusion as it is borne out by and consistent with the parties’ evidence. It is thus the conflict between her parents that is the single biggest risk of harm towards X. To the extent that I can, the orders that I propose will hopefully ameliorate this risk.
In determining what is in the best interests of X, I will now consider such of the additional considerations as far as they are relevant.
X is nine years’ of age. She does not have the requisite level of maturity or understanding of the significant issues which her parents have burdened her with. Whilst she has articulated to Ms O a wish not to spend time with her father as a way of lessening the conflict, I also note that X expressed to Ms O that time with her father is also positive. X’s expressed view to not spend time with her father is therefore clearly a function of the dynamic created by her parents and is her child like way of attempting to protect herself from that conflict.
Given these observations and her age and level of maturity, I place little weight on her view as expressed to Ms O that she does not want to see her father. I also note that her mother does not propose that the father should not spend alternate weekends and half school holiday time with X.
I accept that X has a relationship with each of her parents and extended family.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents. Mr L in the Family Report observed that:
144. [X] cannot be expected to have much foresight nor an ability to independently measure when she will see a loved-one again. She is more suited to structures applied in a consistent and regular manner, where peaceful transitions can occur at child-friendly times. She remains heavily dependent on secure, trusted caregivers to meet the bulk of her physical needs, to keep her to a routine and to provide her with hands-on, nurturing support and to keep her safe from harm.
A change in her living arrangements has the potential to unsettle her stability, carrying with it a new living environment, new school and new friendship groups. It cannot be confidently predicted that it will be as seamless and uneventful as the mother would seek to portray.
Mr L in his reports identified the benefits to the mother of the orders that she seeks. It bodes poorly for the future that under the current consent orders X did not spend time with her father on five out of the 16 occasions up until late 2022 and no time subsequently. While Mr L in his Addendum to the Family Report was broadly supportive of the mother’s relocation, he observed:
76.… there is not enough information at this stage about the ability of the parents to develop a functioning terms of engagement with each other - if one assumes that [X] starts to make more seamless transitions between the parents over the course of 2022.
The evidence to date would suggest that the parties have not developed functioning terms of engagement. Nor has the precondition to such support eventuated. X has not had a seamless transition between her parents.
It is unexplained to me as to why it is that the mother has not been able to comply with the orders in circumstances where her Minute of Order provides that X spend time with the father on an alternate weekend basis.
Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of maintaining time and communicating. The mother currently resides in City K but proposes to move to M Town, which it is agreed is a drive of some hours from City K. Nor is it entirely clear where the mother will live in circumstances of her proposal that she live within a 40 kilometre radius of the B School. In circumstances where there are already problems with X spending time with her father when the parties live in the same locality, it is not hard to imagine the conflict that might ensure if the father travels a considerable distance to spend time with X only for it not to eventuate.
I also note Mr L Addendum to the Family Report identifies the disadvantages with the mother’s relocation, including that:
71. …
a. It poses more change for a young child who has already faced structural changes and requires her to change schools.
…
d. It will create upheaval to the father and practical issues managing a FIFO roster from a remote location, which may also have an impact on the time arrangement.
And more importantly that:
71. …
g. [X’s] physical connection to the father remains a tenuous because of the non-facilitative stance taken by the mother since the separation. Relocating to a more remote venue adds pressure to what has been a fragile re-connection thus far, particularly if the father needs more time to arrange his relocation to [M Town] or has difficulty managing a work roster from that location.
I agree with these observations as to the risks attached to a relocation at this stage.
Of considerable focus for the purpose of interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and s 60CC(3)(i), calling into focus the insight and capacity of the parents to place the child’s needs above their own. I have significant concerns about the insight of each of these parents.
The Family Report and the report of Ms O amply identifies the difficulties these parties have in meeting the emotional needs of their daughter. The events of the last couple of months have demonstrated that the parties have still not yet developed a functioning form of engagement with each other. Ms O records:
[X] identifies conflict between [Mr Stearn] and [Ms Samsen] as areas of concern. She describes her parents as being unable to communicate and that they regularly engage in yelling behaviours in her presence.
(Affidavit of Ms O, Annexure MO6)
This is made clear in the evidence of both parties.
Ms O also observed that:
… the co-parenting relationship between [X's] parents presents emotional challenges for [X], exposes her to adult issues and related responses, and has contributed to [X] self-identifying a solution, through expressing a wish to not spend time with [Mr Stearn], as [Mr Stearn] and [Ms Samsen] have been unable to address the underlying issues to date.
(Affidavit of Ms O, Annexure MO6)
This is made clear in the evidence of both parties.
Section 60CC(3)(i) requires the Court to consider the attitude to the child and the parental responsibilities of each of the parties. I refer to each party’s allegations. They reflect poorly on the parenting capacity of both parents. The evidence of Ms O and the mother identify problems in the father’s interaction with X and that he would appear to be burdening her with adult issues and at times acting inconsistent with the maturity expected of him.
I note that the father has previously indicated that he was not necessarily opposed to the mother relocating to M Town albeit that he has now resiled from that position. I also accept that the mother does not have to provide compelling reasons to relocate the residence of X. I also accept that where on one view of the father’s case, she will be X’s primary carer, then her legitimate expectations as to where she wishes to live will be constrained by a refusal at this stage of her application.
In that regard, I adopt with respect the observations of the now Deputy Chief Justice in Adamson, where his Honour recorded:
105.While the orders sought by the father seek the return of the children from E Town to Sydney, the reality is that the mother, as the children’s primary carer, will be compelled to return with them. It is a serious matter for the Court to make an order that effectively restrains a person’s freedom of movement. In that respect, I have had regard to the decisions of the Full Court in Sampson & Hartnett (No 10) [2007] FamCA 1365 and Cales & Cales [2010] FamCAFC 237.
106.In that context, in U v U [2002] HCA 36 at [142], Kirby J observed:
The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
107.In terms of the potential impact on the children, in AMS v AIF [1999] HCA 26 at [145], Kirby J further observed that:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
108.The Full Court in Bolitho & Cohen [2005] FamCA 458 confirmed that the proper approach to be adopted in relocation cases, as held by the High Court in U v U, is one involving the:
… weighing of competing proposals, having regard to relevant [s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
However, I also note that Kent J in Heath v Hemming (No2) [2011] FamCA 749 observed as follows:
101.Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
His Honour’s observations, albeit in a final hearing, are apposite to the mother’s current application.
Recognising as I do the above matters, and in particular that Mr L was supportive of the mother’s relocation subject to the qualifications earlier addressed, he has not had the benefit of seeing the parties since early 2022, considering the events of late 2022 and of addressing or opining on what appears at one level a disconnect between what the mother reports of a marked deterioration in X’s relationship with her father and the orders she seeks. Whether he would continue to remain supportive of a relocation is unknown.
In the absence of cross-examination and more fulsome expert evidence addressing the events of the last six months, where there remains a non-functioning relationship between the parents, where there has not been a seamless transition for X into her father’s care, and where there has not been compliance to date with orders for X to spend time with her father, including as recently in the last month, the determination of the mother’s application in her favour at an abridged interim hearing is not in the best interests of X.
I am unable, in the best interests of X, to make a finding that the mother’s proposal for a change of residence to M Town would, on balance, be in X’s best interests at this stage.
I repeat and adopt the observations of Judge Brown in Atwill and Marden that I have referred to earlier, namely that:
93.The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. …such a degree of analysis is not possible at the interim stage.
In my view that analysis in this matter cannot be conducted within an interim hearing.
I turn now to consider what should happen in relation to time over the Christmas holidays, next year and the issue of changeover.
The father in his affidavit sets out a time arrangement for X to be with him over Christmas Day. He gives evidence of having arranged a family gathering with his extended family. In circumstances where X was with her mother last Christmas, it is important that she have the opportunity to spend time with both sides of her family. There is no reason to prefer X’s relationship with her mother on Christmas Day to that to her father. Accordingly, I propose to make the orders that the father seeks for time on Christmas Day.
In relation to the balance of the Christmas holidays, the mother says that the father’s time should be limited to one night each alternate weekend. Why that is so is irreconcilable with her proposal that the father spend two nights in lieu of Christmas Day. I note the recommendations of Mr L in the Family Report that X’s time with her father should progress in the 2022/2023 summer school holidays to blocks of two and three nights and thereafter to an alternate weekend structure of Friday to Monday during school terms from 2023 onwards.
X has not spent more than one night in her father’s care since separation. I am not satisfied that at this stage a block of 10 days as proposed by her father is anything like what she could cope with. I am of the view that it is important that X's time with her father progress roughly in accordance with the time arrangement that was recommended by Mr L. I propose that the father spend time with X each alternate weekend over the Christmas holiday period after Christmas Day from 9.00 am on a Thursday until 5.00 pm on a Sunday.
In relation to school term time, the orders as proposed by the mother would see X spending alternate weekends of one night in the school terms but somewhat inconsistently half school holidays with her father in 2023. She would therefore on the mother’s proposal move from one night in school terms to a block of 7 nights in the holidays.
The father’s proposal in school terms is that time commence on a Thursday and conclude on a Sunday if X is in City K. He says that a Sunday changeover is necessary to accommodate his work.
The mother’s time proposal has little to attract it from the position of logic. I am of the view that the recommendation of Mr L builds upon the time arrangements that have occurred until November this year. I also note that the parties’ increased time in November to blocks of two nights under the June 2022 orders. The mother cannot seriously be heard to contend that X could not cope with blocks of two nights increasing to three nights given her stance on school holidays. I propose to order that X spend time with her father each alternate weekend in school terms from after school Thursday to 5.00 pm Sunday.
It is clear from the reports of Ms O and Ms N that the Court should avoid where possible the parties coming into conflict. Ms N observed:
… my clear view is that [X] will likely be exposed to parental conflict if her parents continue to effect handover of care for [X] to her father, regardless of what [X's] parenting arrangements are and that [Ms Samsne] and [Mr Stearn's] parenting relationship will continue to be negatively affected in this context. My view is therefore that handover of care for [X] needs to be done via a third party until the parties can more effectively communicate.
(Affidavit of Ms N, Annexure MO3)
Whilst I accept she is the mother’s therapist and she has not seen the father, I note the father’s changeover orders propose the use of third parties. A changeover at school avoids the possibility of the parties coming into contact and where it involves a changeover at another time, then the father’s orders give effect to the recommendation of Ms N. I propose to adopt for these reasons most of the father’s orders as to changeover with some slight modifications.
The mother proposes that X spend half of each school holidays in 2023 with her father. The father proposes that he have the whole of the Term 1 and 3 holidays and half of the Term 2 holidays and half of the Christmas holidays in two week blocks.
At this stage, an arrangement where X would not see her mother for the whole of the school holidays would be inconsistent with the proposals of Mr L and not consistent with her best interests. In that regard, he reports “a set of behaviours, described by the mother, which are consistent with an enmeshed, somewhat anxious attachment with the mother at this stage” (Family Report, paragraph 150(c)). Assuming the correctness of that opinion, then the Court should hasten slowly. I also note Ms O’s records:
•During periods of time spent with [Mr Stearn], [X] experiences a sense of loss as to activities that she is missing out on, that she would share with [Ms Samsen]. She examples these as including trail rides, that is one of her enjoyable activities to do with [Ms Samsen].
(Affidavit of Ms O, Annexure MO6)
In circumstances where X has not yet spent more than one night in her father’s care, the more ambitious agenda of the father is simply that. I propose to make the mother’s school holiday time orders as fitting more appropriately with the expert evidence.

Otherwise, many of the other matters about which each of the parties sought orders are already covered by the consent orders made on 8 June 2022. I see no reason to vary what they consented to particularly in circumstances where no submission was put in support.
All parties were in agreement that any individual therapy for X should be non-reportable. I propose to make such an order.
I will otherwise refer the matter back to a registrar in the Brisbane registry for case management.
I will make orders to give effect to the above.

I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 22 December 2022

File number(s):	BRC 10091 of 2021
Judgment of:	SCHONELL J
Date of judgment:	22 December 2022
Catchwords:	FAMILY LAW – PARENTING – Interim orders – Where the mother seeks to relocate four hours away from where the father resides – Where the parties have a highly conflictual relationship – Where both parties seem more focused on gathering evidence than on what is in the best interests of the child – Where the child has not spent time with the father since 30 November 2022 – Where it is not in the best interests of the child for the mother to relocate with the child – Where orders were also made increasing the father’s time gradually with the child.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL
Cases cited:	Adamson & Adamson [2018] FamCA 523 Atwill & Marden [2018] FCCA 1401 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Heath v Hemming (No2) [2011] FamCA 749 Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101 Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520 Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22
Division:	Division 1 First Instance
Number of paragraphs:	122
Date of hearing:	22 December 2022
Place:	Sydney
Counsel for the Applicant:	Ms Pointing
Solicitor for the Applicant:	LS Family Law
Counsel for the Respondent:	Mr Shoebridge
Solicitor for the Respondent:	Dore & Webb Lawyers
Solicitor for the Independent Children's Lawyer:	Wallace Perkins Family Law

BRC 10091 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR STEARN Applicant
AND:	MS SAMSEN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	22 DECEMBER 2022