Todora & Todora - [2022] FedCFamC1F 421

Federal Circuit and Family Court of Australia
(DIVISION 1)
Todora & Todora [2022] FedCFamC1F 421

File number(s): BRC1283 of 2020

Judgment of: JARRETT J

Date of judgment: 14 June 2022

Catchwords: FAMILY LAW AND CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – best interests of the child – where the child is a citizen of Country B and Australia –where Country B has been the child’s primary country of residence since birth – where proceedings commenced while mother and child in Australia for brief travel to facilitate paternal relationship – where the mother seeks to maintain Country B as the child’s primary country of residence – where the mother values and facilitates the child’s relationship with the father – where the child has limited English skills and English is her only common language with the father – where the mother is the child’s primary caregiver – where remaining in Australia, by virtue of social isolation, imposition and the father’s conduct impact upon the mother’s parenting capacity– where the mother’s parenting capacity will likely continue to decline if the child remains in Australia

Legislation:
Evidence Act 1995 (Cth) s,140

Family Law Act 1975 (Cth) ss, 4AB, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(2), 61DA, 62G(2), 64B(2), 69ZT

Cases cited:
AMS v AIF (1999) 1999 CLR 160

B and B: Family Law Reform Act (1997) FLC 92-755

Briginshaw v Briginshaw (1938) 60 CLR 336

Goode & Goode (2006) FLC ¶93–296

R v Lillyman [1896] 2 QB 167 at 170

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 163

Date of last submission/s: 4 May 2022

Date of hearing: 3 and 4 May 2022

Place: Brisbane

Counsel for the Applicant: Mr Cameron

Solicitor for the Applicant: Life Law Solutions

Counsel for the Respondent: Ms Carmody

Solicitor for the Respondent: Legal Aid Queensland

Counsel for the Independent Children’s Lawyer Ms McArdle

Solicitor for the Independent Children’s Lawyer Jenny Boulton Solicitor
ORDERS

BRC1283 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR TODORA

Applicant

AND:
MS TODORA

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

JARRETT J

DATE OF ORDER:

14 June 2022

THE COURT ORDERS THAT:
1.The respondent have sole parental responsibility for decisions concerning the major long-term issues for X born 2016.
2.X live with the respondent.
3.The respondent be at liberty to return to Country B with X to live.
4.X spend time with the applicant in Australia for four (4) weeks during the Country B Summer School holidays in June, with the applicant to pay the costs of X’s travel, and for this purpose:
(a)Until X attains 13 years of age, the respondent shall travel with X to Australia (paying her own travel costs), and X shall spend time with the applicant:
(i)In 2023:
A.For the first week:
(1)Three consecutive days including overnights and return to the respondent on the fourth day, including overnight; and
(2)The final three consecutive days including overnights, and return to the respondent for one day including overnight.

Three consecutive days including overnights and return to the mother on the fourth day, including overnight; and
The final three consecutive days including overnights, and return to the Mother for one day including overnight.
B.Thereafter for three weeks, with the applicant to facilitate telephone calls between X and the respondent every second day.
(ii)Commencing in 2024:
A.For four weeks, with the applicant to facilitate telephone calls between X and the respondent every second day.

(b)Once X attains 13 years of age, X shall travel to Australia, using an unaccompanied minor’s service, and spend the duration of her visit with the applicant, with X to communicate with the respondent by video call each Wednesday and Saturday at a time agreed in writing between the parents.

5.Subsequent to the 2023 June holiday time, the applicant be at liberty to spend time with X in Country B, for up to four (4) weeks, and for this purpose:
(a)the applicant shall provide the respondent with at least fourteen (14) days written notice of his proposed travel dates and upon receipt of such notice, the respondent shall ensure X is available to spend time with the applicant during those travel dates providing that if it is during school time that X continue to attend school; and
(b)with the applicant to facilitate telephone calls between X and the respondent every second day.

6.The parents shall keep each other informed of their telephone numbers and email address and inform the other of any changes within twenty-four (24) hours.
7.The respondent shall facilitate video calls between X and the applicant each Wednesday and Saturday at a time agreed in writing between the parties and failing agreement at 6.30pm in the time zone in which X lives.
8.On the first day of each month, the respondent provide monthly written updates to the applicant about X, including updated photos of X.
9.During the time X is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question X about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of X; and
(d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of X.

10.In the event the applicant has an Australian passport for X, the applicant is to immediately surrender X's Australian passport to the respondent to be held in the respondent’s safe keeping indefinitely.
11.The Independent Children’s Lawyer be discharged.
12.Otherwise all outstanding applications are dismissed.

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 Todora & Todora has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

The respondent, Ms Todora and her daughter X (now aged 5 years) are both citizens of the Country B Federation and until October 2019 they resided in City G, Country B. In October 2019, the respondent came to Brisbane, Australia with X so that X could spend time with her father, the applicant Mr Todora. The visit was agreed between the parents to be temporary – for about six months – and was funded by the applicant who purchased return air tickets for the respondent and X. Their return to Country B was scheduled for May 2020.
In circumstances I have discussed in more detail later in these reasons, the respondent resolved to cut the trip to Australia a little short and return home. She asked the applicant to change the return flights for she and X. The applicant duly did so – the return flight was brought forward to March 2020.
However, seemingly without notice to the respondent, he immediately commenced these proceedings and had X’s name placed on the airport watch list. The respondent and X were stopped at the airport trying to return to Country B. They have been here ever since.
By these proceedings, the applicant seeks parenting orders whereby X shall reside in Australia with both he and the respondent if she chooses to remain here, but otherwise with him. He seeks those orders notwithstanding that X and the respondent have never resided here, but only visited for the purposes of X spending time with the applicant.
Unsurprisingly, the respondent opposes the application and seeks orders that she might return to Country B with X to live.
For the reasons that follow, I have concluded that orders generally consistent with those sought by the respondent are appropriate.
The current arrangements
Currently, the parties and X all live in Brisbane. The arrangements are based upon interim parenting orders made on 7 May 2021. In line with those orders, X lives with the respondent and spends time with the applicant from 9.00am Saturday until 8.30am Monday each alternate weekend and from 12.00pm Wednesday until 10.00am Thursday each week. However, X commenced school in 2022, well after those orders were made. The in-week time has apparently become problematic since her schooling commenced. Seeking to accommodate X’s change in circumstances, the respondent asked for X to be returned to her at about 8.00am on school mornings so she can attend school on time. Whilst the applicant’s evidence about whether he agreed is entirely unclear, it is uncontroversial that he has returned X on numerous occasions at such a time that she has been late for school.
The applicant’s proposals
The applicant seeks orders based on two alternative positions. The first alternative is if X is to remain in Australia. The second is if X is to return to Country B. If X is to remain living in Australia, he seeks orders that the parties have equal shared parental responsibility for her. He seeks somewhat baffling orders regarding how X should spend her time.
His primary proposal is a graduating scheme, commencing with X spending 4 nights a fortnight with him and increasing by 1 night every month. The applicant’s proposal culminates with X spending 6 nights a fortnight with her mother and 8 nights with him, broken up into two tranches. That is to say, once the applicant’s primary proposal was fully implemented X will be spending more time in his care than in the care of the respondent.
He also seeks that X’s name be placed on the “Family Law Watchlist” maintained by the Australian Federal Police for 14 years. If I made that order today, she would be 19 by the time it expired, nearly 20. I assume this is simply a mathematical error.
The remainder of his primary proposal provides for:
(a)equal holiday time;
(b)arrangements for Easter, Christmas, Mother’s Day, Father’s Day and the various birthdays;
(c)interstate travel, requiring the exchange of notice and information between the parties;
(d)the disposition of X's Australian and Country B passports;
(e)the exchange of information between the parties regarding their own contact information, the medical care providers and the medical status of X; and
(f)other orders common in this jurisdiction.
If X is to return to Country B with the respondent, his alternative proposal is for equal shared parental responsibility, for X to live with the respondent and for her to spend eight weeks a year in Australia to occur in different forms depending on her age. X is also to have a half hour of telephone time with him every second day and he is at liberty to travel to Country B and spend time with her.
The respondent’s proposals
The respondent also makes alternative proposals. If I determine that X should live with the respondent in Australia, she proposes that she have sole parental responsibility for X, that X live with her and that she spend alternate weekends from Friday to Monday and half of all school holidays with the applicant. Further, she seeks an order restraining the applicant from approaching within 100 metres of her home and provisions for X to be able to travel internationally.
In the event that I determine that X should reside with the respondent in Country B, the respondent’s proposal begins with the proposition that she should provide a security of $40,000.00 to the Court as security for her compliance with the orders. The orders she proposes are that she have sole parental responsibility, X live with her in Country B and travel to Australia for 4 weeks each June, which according to her, coincides with the Country B school holidays. After 2023, the applicant would also be able to spend up to 4 weeks a year with X in Country B. X and the applicant would also have twice weekly electronic contact, and the respondent would provide the applicant with monthly updates on X. A final form of the orders sought by the respondent was tendered by her counsel at the conclusion of the trial.
The Independent Children’s Lawyer’s proposal
I have the assistance of an Independent Children’s Lawyer. In her case outline, the Independent Children’s Lawyer proposed I order, inter alia, that:
(a)the respondent have sole parental responsibility for X;
(b)X live with the respondent;
(c)the parties keep one another informed of their contact information;
(d)handovers occur at a public location;
(e)the parties communicate through a parenting application;
(f)the applicant be restrained from attending within 100 metres of the respondent’s home;
(g)the applicant provide to the respondent any of X’s passports which he holds; and
(h)if X is to relocate to Country B, then she spend time and communicate with the applicant electronically twice a week, she spend Country B school holidays from June 2023 – January 2024 in Australia in a week-about arrangement between her parents, from 2024 she spend 4 weeks of block time with the applicant in Australia during Country B school holidays; or
(i)if X is to remain in Australia, then she have electronic contact with the applicant twice a week, and spend each alternate weekend with him as well as half of all school holidays, changing from week-about to block time in 2023; and
(j)provisions for special occasions.
At the conclusion of the trial, the Independent Children’s Lawyer advocated for X to live with the respondent in Australia. Her orders reflect the recommendations of the most recent report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) excepting that the family consultant, Ms C, recommended that changeovers occur at X’s school to reduce contact between the parties.
background and some findings of fact
The applicant was born in City H, Country J and is presently 39 years of age. He is now an Australian citizen and intends to remain living here. He is employed as a professional and earns about $120,000 per annum plus bonuses. In the last couple of years the bonuses have been in the range of $8,000 - $12,000 per annum.
The respondent was born in City G, Country B, is a Country B citizen and is presently 32 years of age. She is tertiary educated and holds a Bachelor’s Degree, conferred in Country B. She speaks English, although sometimes she misunderstands things. She can read English reasonably well. Her English writing ability is poorer. The respondent has permanent residency in Australia, but would prefer to return to live in Country B where her own family resides.
The respondent receives $907 per month in child support, though that may change depending on how my orders impact the assessment of what time each parent spends with X. She receives $1,105 per fortnight from Centrelink. Of her expenses, she pays $250 in rent and other household expenses. She has sufficient discretionary income to fund X’s attendance at dance classes.
I have before me neither evidence of what type of permanent residence visa the respondent holds, nor submissions on what conditions attach to it. As such, I set that issue out of my mind. In the absence of any evidence to the contrary, I have assumed that she can remain in Australia indefinitely.
X was born in Country B in 2016. She has Country B and Australian citizenship.
Before proceeding further, it is necessary to make some observations about the parties as witnesses.
I found the applicant to be a difficult witness. He needed to be reminded to address himself to counsel’s questions on many occasions. He continued to avoid answering questions directly, seeming to be more intent on furthering his narrative about the respondent. His evidence was characterised by carefully worded and considered responses designed, I thought, to expressly avoid answering the question put by counsel and avoid using the phrases and terms used by counsel in the question asked.
A clear example of the applicant’s prevarication is the sordid saga of X commencing school. From what I can gather of the evidence, the parties disagreed on what school X would attend. The applicant wanted her to attend a private school of his choosing and the respondent wanted her to attend a school closer to her home where some of X’s friends would attend. Both parties unilaterally enrolled her in the school of their choice.
What happened, I find, is that the applicant initially refused to allow X to attend school unless it was the school of his choice.
Whilst the respondent also unilaterally enrolled X in her preferred school and refused to send X to the applicant’s nominated school, unlike the applicant she explained her reasons for her actions to the applicant. She caused her solicitors to set out her reasons in correspondence sent on 2 February 2022. Those reasons were:
(a)the orders at the time provided for X to live with the respondent and she would be responsible for the majority of X’s commuting to school;
(b)the respondent had no means of transport and so could not get X to or from the applicant’s preferred school easily; and
(c)the school proximate to the respondent’s home would be attended by X’s friends and so would ensure a smoother transition for her into her scholastic life.
While solutions to the issues raised by the respondent might have been available, there is no evidence that upon becoming appraised of the respondent’s reasons for preferring the school much closer to her residence, the applicant attempted to address them, reach a compromise or provide solutions so that X could have the outcome he thought was in her best interests. He simply said that the issue would wait for final hearing. Presumably, he intended for X to miss school until then.
The respondent unilaterally began taking X to the school nearer to her house. Quite disingenuously, the applicant says that he thereby “facilitated” X attending that school by not preventing her attendance there. But I am satisfied and I find, that were it not for the respondent being proactive about this issue, it is likely that X would not yet have commenced school.
Getting clear answers from the applicant on this issue was difficult. If any impression was clear from the evidence, it is that the applicant was more interested in leveraging the orders made prior to X’s schooling and the impending final hearing to get his way than he was in having a discussion to achieve solutions, even on an interim basis, in X’s best interests.
He engaged in similar gamesmanship during his cross-examination, leaving me with the impression that he was more interested in winning than giving clear and concise answers to counsels’ questions. Overall, where I could decipher his longwinded jargon into a clear meaning, I found it difficult to trust anything he said without corroboration.
The respondent’s evidence was given much more directly and candidly. She made statements seemingly against her interest without hesitation. It was generally consistent, both internally and with the independent objective evidence. Except where I have otherwise indicated, I have generally accepted the respondent’s evidence.

Back to the facts of the matter.
The parties first made contact through a Facebook group in either 2011 or 2013. The evidence varies about this, but the difference is immaterial. Each was still living in their countries of birth.
The parties met in person in November 2014 when the respondent travelled to Country J for 10 days to spend time with the applicant and his family. This was the first of three similar trips between City H and City G by the parties.
In May 2015 the applicant proposed marriage to the respondent while he was with her in City G. They married later that year and began living together in the applicant’s family home in City H.
Before the parties were married, the applicant was granted permanent resident visas in Australia and Country F, but he had not then determined where he wanted to move. There was some talk that Country F was preferred, at least as far as the respondent was concerned. However, the respondent’s application for permanent residency in Country F was refused. Thus, Australia was the destination and she applied for a permanent residence visa in July 2016 at a time when she says the parties’ relationship was still intact and she was expecting X.
While the respondent was pregnant and living in Country J with the applicant and his parents, she agreed to move to Australia with him. She did, however, ask to postpone the move until after X’s birth. The agreement seemed to be that the applicant would be moving first. He intended that the respondent would remain living with his parents in City H with whom she did not have a strong bond. However, the respondent wanted more support than that during her pregnancy.
In early 2016, the parties travelled to City G. The respondent remained there for the family support she sought during her pregnancy and the applicant returned to Country J before moving to Australia in August 2016 (although the respondent says it was April 2016). He moved to Brisbane and this city has been his principal place of residence ever since.
Any intention the respondent ever had of relocating here permanently was short-lived. X was born in 2016 in City G. The applicant travelled there briefly to spend time with her and the respondent in late 2016. That is to say, the first time the applicant spent any time with X was when she was about 3 months old. The respondent facilitated time between the applicant and X on more or less a daily basis. During that trip, I accept that the respondent told the applicant that she did not want to move to Australia and wished to remain in Country B with X. The applicant returned to Australia.
I accept the respondent’s evidence that after the applicant returned to Australia he would contact her by telephone with such frequency that she would from time to time block his calls so that she could get some respite from them. When she did so he would resort to sending her emails or contacting other members of her family and so she would unblock his calls until she needed respite from them again.
The respondent’s permanent residence visa was granted in March 2017. By this time, she says her relationship with the applicant had deteriorated such that she considered that the marriage was “in a very bad way”. Her evidence is that she had told the applicant that she did not want to continue in the marriage or move to Australia. I accept her evidence about that.
The applicant travelled to Country B in May 2017 for 3 weeks. It is uncontroversial that the parties did not cohabit during this visit. The applicant stayed with the respondent’s parents. The respondent opines that she had already said she considered the relationship over and she had told the applicant so. Nonetheless, she says that he kept pressuring her to resume the relationship with him and move to Australia. It is also uncontroversial that she facilitated time between X and the applicant every day or so.
In December 2017 the respondent and X travelled to Australia and stayed with the applicant. The applicant facilitated the travel by purchasing return air tickets for the respondent and X. The respondent swears that this was an attempt to see if the parties could reconcile their relationship. The applicant agreed with that in cross-examination. The respondent also said that it was to ensure X knew her father. I accept her evidence about that.
The respondent says the trip was fraught with difficulties between the parties. I am satisfied that in an effort to encourage her to stay with him, the applicant told the respondent that there were two bedrooms in his apartment where she and X would be staying and they would not sleep in the same room. In fact, his accommodation was a studio apartment. When the respondent and X arrived in Australia they had no choice but to take up accommodation with the applicant. It was not suggested that the respondent had the wherewithal to organise alternative accommodation at short notice. She convinced the applicant that they would sleep separated by a curtain, her and X on the bed and the applicant on the couch or on a mattress in the living room.
The respondent swears that on 22 December 2017 shortly after she arrived in Australia, she took a nap with X at around 3.00pm. She awoke from that nap with the applicant rubbing her between her legs while he sat next to the two of them. She swears that he was naked and masturbating. She remonstrated with him and he desisted. The respondent asked the applicant what he was doing and she swears that he said “I couldn’t resist.” Shortly afterwards, she says, she heard him doing it again behind the curtain. She says that she was unable to sleep because she was scared he would come back again.
The applicant denies this allegation. He says that the incident did not occur. He says that he would wear only boxer shorts around the apartment and initially he said that he would sit on the bed in the unit when the respondent was sleeping there. A few answers later he resiled from that position and said the respondent was always awake when he sat on the bed with her.
Annexed to the respondent’s affidavit is a text message conversation dated 22 December 2017 the respondent had with a friend in which she recounts the event. The conversation has been translated from Country B language into English by a person whose name is said to be “Ms D”. The conversation in its original Country B is not produced, there is no affidavit by the person who translated the conversation, nor was he or she produced for cross-examination. So, I have a translator’s opinion that the annexures to the affidavit are an accurate translation from Country B into English of the texts the translator was given to translate. However, I have neither the source documents that person used, nor sworn evidence from the translator.
The texts are admissible, but the probative value of the evidence requires close scrutiny. Even were this not a matter to which s 69ZT of the Family Law Act applied, evidence of complaints of sexual misconduct, which these plainly are, are admissible to show the consistency of a complainant’s conduct (R v Lillyman [1896] 2 QB 167 at 170).
The irregularities in the way the texts are put before me matters. She describes a sexual assault – a serious criminal act. Section 140 of the Evidence Act 1995 (Cth) prescribes the relevant standard of proof for these proceedings. The allegations must be proved on the balance of probabilities taking into account the subject matter of the proceedings and the gravity of the matters alleged. The authorities are clear that when a civil court considers allegations of criminal conduct, a fair mind cannot be reasonably satisfied the allegations are proved on dubious evidence. As such, I should approach her evidence with caution before concluding that I am reasonably satisfied the allegations are proved: Briginshaw v Briginshaw (1938) 60 CLR 336.
If the translation is accepted as an accurate record of what the respondent said to her friend on 22 December 2017 I am inclined to accept the respondent’s account. Her description of the event in the messages is consistent with what she has sworn before me and nothing before me suggests there was any reason for her to lie about such things to the recipient of the messages at that time. Notably, neither party suggests litigation was contemplated until another two years after the exchange. There is no reason to believe the respondent fabricated the messages to assist her case.
No issue having been taken with the messages’ provenances, I accept them. The WhatsApp messages are evidence of recent complaint. They provide corroboration of the respondent’s evidence before me. I find that the sexual assault on 22 December 2017 happened as the respondent describes.
The respondent alleges that in January 2018 the applicant raped her. She says that she got up to go to the bathroom during the night and had to walk past the applicant. When she returned from the bathroom she says that he grabbed her by the arms, pushed her down and pinned her to the floor and began having sex with her. She says she told him to stop and he would not.
The applicant denies this event.
The respondent says that she did not tell the authorities about the event because she was wholly dependent on the applicant while in Australia and she did not know if the authorities would accept that rape within a marriage was possible. The only person she says she told about this event was the same friend to whom she sent the previous text to which I have already referred. Apparently she spoke to this person over a “WhatsApp” call. No affidavit from this person is available. No explanation is offered as to the steps the respondent took to get this person’s evidence or why it is not available. In lieu of such an explanation and where her evidence is plainly relevant to the respondent’s very serious allegations, I presume her evidence would not assist the respondent if given. Moreover, the WhatsApp messages annexed as “W–1” to the respondent’s trial affidavit demonstrate a WhatsApp conversation on 11 January 2018. No mention of this event is made in those messages.
During cross-examination and submissions, counsel made much of the respondent’s evidence that she and the applicant had travelled immediately after the alleged rape to purchase an after-sex pregnancy prophylactic. The applicant’s evidence was that the parties frequently had both protected and unprotected sex, but that he recalled an event in which he went with the respondent to get such a prophylactic. The thrust of the submission was, in essence: why would he recall this specific event if unprotected sex was not in some way unusual? His memory of the trip was said to corroborate the respondent’s allegation that this night was different to the extent that this was the night on which he raped her.
It is plainly relevant that the applicant recalls this event out of a series of events he considered routine, but the fact that he recalls it is at best equivocal. I do not consider that it permits me to make a finding that on the night in question the applicant raped the respondent as she alleges.
The respondent’s evidence about this event is within what Dixon J referred to when he described “inexact proofs, indefinite testimony, or indirect inferences” in Briginshaw v Briginshaw. There is scant detail of what she felt, saw, heard or otherwise directly perceived with her senses – such details being better described as evidence than the generalisations in her affidavit material. Few allegations could be more serious. Taking that into account and the issues identified with the respondent’s evidence about the event to which I have just referred, I am not satisfied that her allegations are proved on the balance of probabilities.
Similar problems arise with the financial and other sexual misconduct the respondent describes in her affidavit. She says that the applicant required sex from her or he would deny her the funds to purchase groceries for herself and X. If she did not have sex with him, he would say words to the effect of “You are not following your duties as a wife with intimate contact, so why should I give you money?” All of these allegations are posited in terms of “he would” and no specific events are described in her evidence.
Given her dependence on him, her evidence is that he coerced her consent to intercourse by withholding the funds to feed herself and their child. Whether or not that coercion would impact her consent in the criminal law is beyond the scope of this judgment. But it is plainly a very serious allegation. Bearing in mind the standard of proof that applies to these allegations, the respondent’s assertions and allegations contained within her affidavits about these matters do not satisfy me that what is alleged took place. Her evidence is bereft of particularity and specificity such that I find myself unable to make specific findings which would lead to conclusions consistent with the assertions and allegations made by the respondent.
The respondent also states that “[the applicant] would follow [her] everywhere and stand at a distance and watch [her]” when she went for walks with [X]”. This is, again, offered only as the broadest of allegation and assertion. No single specific occurrence is described in evidence. She says that he has admitted doing so during their domestic violence proceedings, but no transcript of those proceedings is in evidence before me. I cannot be reasonably satisfied, on the respondent’s evidence as presented, that such events took place.
Sometime between February 2018 and April 2018 the respondent says that the applicant asked her to help him complete some paperwork. After she was reluctant to assist him, she says he kicked her in the legs. I accept the respondent’s evidence about this.
In July 2018 the respondent and X returned to Country B. The parties give different accounts of this event. On the applicant’s case, they agreed that the respondent would only go for 5 weeks before returning to Australia. The respondent’s evidence is that this agreement never existed, but the 5 week period was an explanation the applicant offered to Australia’s immigration authorities. He had contacted the immigration authorities because he needed to notify them that the respondent was leaving Australia. The respondent says that he told the immigration authorities that she was leaving for a period of 5 weeks because they “sounded concerned about me leaving Australia after only spending about 6 or 7 months here”. I accept the respondent’s evidence about this because it is consistent with what in fact subsequently occurred. She did not return to Australia after 5 weeks.
In September 2018, the applicant travelled to Country B with his brother to spend time with X. The parties and X celebrated her second birthday together. The applicant soon returned to Australia.
In May 2019, the applicant travelled to Country B and met his parents there. The respondent says that when she met with them they all tried to convince her to continue in the marriage with the applicant. It was the first time that the applicant’s parents had spent any time with X. According to the respondent’s evidence, which I accept, they spent time with X for a few hours every day that they were in Country B. The respondent’s evidence is that she was working at that time and when X spent time with the applicant’s parents or with the applicant and she was at work, the respondent’s own mother would be present with X. The applicant’s visit lasted about 10 days on this occasion.
The respondent’s evidence is that the applicant continued to harass her with unwanted messages and emails. The respondent put into evidence some of these emails. Her description of them is accurate. They wax and wane between imploring the respondent to return to the relationship and insulting the respondent for all of the shortcomings that the applicant perceives she has.
The respondent did not return to Australia until October 2019. While the respondent and X were in Country B, X had direct contact with her father on only a couple of occasions. He says that electronic contact was made impossible when the respondent blocked his number. The respondent admits that she did occasionally block the applicant’s number, as he would relentlessly discuss their relationship continuing and she was firm that she did not want that. Regardless, it is agreed that during this period X had minimal physical contact with her father and there were unspecified periods of time in which the respondent made electronic contact impossible.
Notwithstanding these difficulties experienced by the respondent, she brought X to Australia in October 2019. There can be no doubt, having regard to the text message correspondence between she and the applicant leading up to that travel, that she was coming here for a short visit of a few months for the sole purpose of X spending time with the applicant. The applicant continued to press the respondent to reconcile their relationship but the text messages are clear that the respondent refused to do so and she made it clear that the visit was for the purpose of X spending time with the applicant. Whilst the applicant sent messages to the respondent which eventually accepted that position, his messages were not genuine as his subsequent conduct demonstrated – he continued to harass the respondent to reconcile with him after she arrived in Australia.
The applicant purchased return airfares for the respondent and X. The return flight was booked for 31 May 2020 but the respondent says that the applicant told her it was a flexible ticket that could be changed so that she could return to Country B whenever she wished to. I accept her evidence about that.
I accept the respondent’s evidence that prior to her arrival in Australia, the applicant had told her that she and X could live in his apartment whilst they were visiting and he would stay elsewhere. However, when she arrived in Australia she found that the applicant had not moved out of his apartment and he intended that they would all live in the apartment together. Again, she found herself with no choice but to take up the accommodation with the applicant.
The respondent swears that in January 2020 she was getting X and herself ready for bed. She had closed the curtains but the applicant came inside her sleeping area. She told him that she was going to sleep and they could talk later but he refused to leave. She says that the applicant got angry at her, grabbed her by the neck with both hands and pushed her onto the bed. She swears that X was in the room and saw this happen. The applicant denies that this incident occurred but I accept the respondent’s evidence about this incident.
The parties disagree over when their relationship ended. The applicant says they separated in February 2020 when, he alleges, the respondent attempted to take X out of Australia. As I have already indicated above, the respondent’s view was that the relationship was in difficulties as early as March 2017 and despite some attempts at reconciliation it never recovered. In my view, the respondent’s view of the parties’ relationship is likely to be more accurate. It is certainly cooperated by the text messages and other correspondence that passed between the parties from time to time.
At the beginning of February 2020 the respondent told the applicant that she thought it was time that she and X returned to Country B. The applicant changed the return flights from May 2020 to March 2020.
After the applicant change the flights, he continued to press the respondent to reconcile their marriage. She refused.
On 5 February 2020 (and after he changed the flight time for the respondent and X) the applicant commenced these proceedings. He did so notwithstanding the parties’ agreement that the respondent and X could return to Country B.

The respondent was served with the proceedings on 14 February 2020. She swears that she immediately tried to obtain air travel to Country B for she and X and she changed the tickets to leave on 14 February 2020. The respondent swears that she was scared and did not understand that the court papers meant that she could not return to Country B. She thought she could return to Country B. I accept her evidence about these matters. I accept the respondent’s evidence that she thought that she could return to Country B with X while the court sorted out what was going to happen. She was, however, intercepted at the airport by the Australian Federal Police who told her that X was not able to leave the country.
The applicant’s actions left the respondent and X in a difficult situation. They had travelled to Australia on a temporary basis with only the belongings they needed for a short visit. Moreover, quite reasonably once proceedings had commenced, the respondent considered that she was unable to return to live with the applicant. She swears that she had no close friends, nowhere to live and was terrified. She was suddenly trapped in Australia with X with nothing more than the few belongings they bought with them for a holiday and the few items that the applicant purchased for them while they were here. These things are all unchallenged. The respondent arranged accommodation with Mr and Ms E. Mr and Ms E were friends of the applicant with whom the respondent also became friendly. They became a source of support for the respondent and X.
I accept the respondent’s evidence that she continued to facilitate X’s relationship with the applicant. The applicant would attend at Mr and Ms E’s home to spend time with X. There is evidence from Mr E in these proceedings that corroborates the respondent’s evidence in that respect.
After the proceedings commenced, the respondent swears that she went back to the applicant’s house twice. She went there in an attempt to resolve the legal proceedings. She suggested counselling between the parties for 6 months in an effort to resolve their issues but only on the basis that she and X lived separately from the applicant. The parties could not reach agreement about that.
The applicant and respondent continued to have contact following the events of February 2020. The applicant would attend at Mr and Ms E’s house sometimes by invitation, sometimes not. The respondent gives evidence that on the evening of 1 April 2020 the applicant attended at the house without invitation. She spoke to him in the presence of Mr E. The applicant demanded that the respondent return a laptop that he had purchased for her as a gift. The respondent refused to do so and the applicant became angry. He said some things to the respondent that she took as an insult to her father who was and remains unwell. When the respondent tried to bring the meeting to an end by going back inside the home, she swears that the applicant stood up and ran to the door and grabbed her by the hand and twisted her hand to prevent her from going back inside the house. She says that Mr E intervened and stood in between the applicant and the respondent so as to prevent the applicant from grabbing her any more.
On 4 April 2020 the applicant again attended Mr and Ms E’s house, this time to spend time with X. The respondent was facilitating time between X and the applicant notwithstanding that there were then no orders in place for time between X and the applicant. As the applicant collected X from the respondent, a dispute erupted about whether the applicant should put X’s shoes on her feet. Mr E intervened, causing the applicant to become even more upset. The whole sorry episode caused X upset as it occurred while the applicant was holding her.
Following this episode, the respondent resolved to move out of Mr and Ms E’s home because she concluded that the applicant thought he could come and go as he pleased. The respondent organised alternative accommodation. She also decided to make an application for a protection order under the State family and domestic violence legislation.
As an illustration of the control that the applicant attempted to assert over the respondent, on 11 April 2020 he sent her an email demanding that she return everything that he had bought her during the relationship and telling her not to wear any of the clothes that he had bought her. He wanted to receive them back because “I do not like to see you wearing them”. The balance of the email demonstrates the hurt the applicant felt at being the subject of a domestic violence application and what he considered to be false accusations. He sent a similar email to her on 15 April 2020.
At the first court date for these proceedings, orders for supervised time between the applicant and X were made. The respondent’s evidence is that the applicant did not properly observe the rules of the supervised contact provider such that he would remain present when the respondent collected X from the sessions and he would video them. She also gives evidence that he would say things to X after which she would shout angrily at the respondent. None of this evidence was challenged and I accept it.
Since 7 June 2021 X’s parenting arrangements have been regulated by an interim order made on that day. X has lived most of her time in the respondent’s care and has spent 4 nights per fortnight in her father’s care. The order has by and large been complied with although some difficulties developed when X commenced school as I have discussed above.
A brief statement of principles
A parenting matter where one party seeks to relocate with the child internationally is just another parenting matter. I am required to consider the competing proposals of the parties and assess them against the legislative rubric of how one determines what is in a child’s best interests: B and B: Family Law Reform Act (1997) FLC 92-755 at 84,220; Zahawi & Rayne [2016] FamCAFC 90 at [48]. This matter might be different from other such cases in that, in truth, it is the applicant seeking to have X’s principal residence relocated to Australia, rather than from Australia, but little turns on that. At its highest, it leads me to consider closely the respondent’s circumstances.
The respondent came to Australia to facilitate X having a relationship with her father. She never intended to stay; Country B is her home. Since the proceedings began she has been faced with the choice of living in the same country as her child or going home. She has chosen to remain with X. This has meant the complete upheaval of her life. If I order that X remain in Australia, I will make that upheaval permanent, at least until X is an adult. I am satisfied that the respondent will use her best endeavours to stay in Australia with X if I order X to remain. Likely by the time X is an adult, the respondent will be settled here – much of her life will have been spent in Australia against her choosing.
Naturally, the same is true of the applicant if I order that X live with the respondent in Country B. He will have the choice of living in Australia, his country of choice, or living near his child. These are always the choices faced where one parent seeks to live with the child in a different country to the other.
I do not mistake my task for a consideration of whether or not the respondent should be permitted to leave Australia: cf. AMS v AIF (1999) 1999 CLR 160 at [188] and [217]-[218]. Rather, I recognise that my orders about X will limit how her parents can live their lives, and will reverberate through their lives well after X’s childhood ends. Just like any parenting application.
X’s best interests are the paramount consideration, but not the only consideration. The legitimate interests of her parents are relevant as well. However, if one or the other must give way, the interests of the parent must give way to the child’s: AMS v AIF (above) at [193] and s 60CA of the Act. As counsel for the applicant said when I pressed him on my concerns regarding the impact on the respondent of his client’s proposed orders, “the fact of having a child with someone creates obligations.”
The Full Court in Goode & Goode (2006) FLC ¶93–296 outlined the pathway through Part VII of the Family Law Act, the legislation to be applied in all parenting matters, at [5]-[13]. Sections 60B(1)-(2) sets out the objects of Part VII and the principles underlying those objects. The parenting orders I can make are listed exclusively in s 64B(2) of the Act. Pursuant to s.60CA, when deciding whether to make any particular order, I must regard X’s best interests as the paramount consideration. The other considerations are contained in s 60CC(2) and 60CC(3).
Pursuant to s 61DA, unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who was a member of the parent’s family, or family violence, I must presume that it is in X’s best interests for her parents to have equal shared parental responsibility. Family violence is defined in s 4AB of the Act and includes “a sexual assault or sexually abusive behaviour”. I have already found that in December 2017 the applicant woke the respondent by rubbing between her legs and masturbating. That is a sexual assault, which is family violence. Accordingly, I find that the presumption of equal shared parental responsibility does not apply in this case.
Consideration
Both parties accept that X will benefit from a meaningful relationship with each of them. My assessment of the evidence is that she clearly will benefit from a meaningful relationship with each of them. Both of X’s parents are intelligent and articulate people. I find that they each have much to offer her. They are from culturally diverse backgrounds and a meaningful relationship with each of them will deliver her benefits.
Neither party suggests that there is a need to protect X from a risk of physical, psychological or emotional harm by reason of being exposed to abuse, neglect or family violence. Although the respondent alleges that the applicant has exposed X to “domestic and family violence” in the context of his ongoing and persistent criticism of the respondent there is no evidence to suggest that X is aware of, or understands the significance of those criticisms. I have set out above the circumstance in which X witnessed the applicant being physically violent towards the respondent and the occasion in which an argument occurred around her.
X is too young to express a view upon which the court might place any weight. She was 3 ½ years of age at the time of the first family report and 5 years of age at the time of the second. More significantly than her age is the fact that she does not speak English well. She spoke very little English at the time of the first report. Her English had improved by the time of the second report but it was less than that expected of a native English speaker of her age. It continues to improve as she presently attends a mainstream English-speaking school in Brisbane.
The author of the two reports prepared pursuant to s 62G(2) of the Family Law Act, Ms C, has observed X with each of her parents on two occasions now. Her observations on each occasion led to her expressing consistent opinions about the nature of X’s relationships with each of her parents. On the occasion of her first observations and in respect of the applicant she opined that:
105.Overall the interaction was positive, [Mr Todora] remained engaging, used positive language and was warm with [X]. When it was time to go, [Mr Todora] went for another hug, [X] hugged [Mr Todora] around his neck and when he said, “I miss you”, she also said, “I miss you daddy”. [X] walked [Mr Todora] out of the room calmly.
As to the respondent and [X] she observed:
108.I observed the interactions to be warm, attuned and positive. [Ms Todora] was calm and she appeared to follow [X’s] lead with minimal prompts around what she wanted to do. [Ms Todora] was spontaneous in her response and she was able to switch between game/activities that [X] wanted to do easily. I observed affection, smiles and encouragement in the interaction, although [X] did not appear to respond to any prompts that [Ms Todora] gave and kept doing what she wanted to do. [X] was comfortable around [Ms Todora].
On the occasion of her second observations and in respect of the applicant she recorded and then opined as follows:
51.[X] was with her mother in one of the waiting rooms when I told her to come and see her father and she became instantly excited. [X] was skipping walking to the observation room. She appeared comfortable once she entered the room, was smiling and gave her father a hug.
…
54.Sometime later, [X] indicated by lifting her hands to her father that she would like to be carried. The next 10 minutes of the observations consisted of [X] holding on tight to her father who kept saying “are you scared” and “there are no monsters here”. The father appeared to become unnecessarily elevated, his breathing quickened, his body appearing tense and kept asking [X] what she was scared of and that she needed to tell him and the mother when she was scared. I observed [X] to be smiling as the father was turning around whilst still carrying her and she seemed to be encouraging responses by holding tighter to him. The father did not employ play or distraction and remained focused on [X] being scared. When I ended the observation I prompted [X] to say goodbye to her father. [X] gave her father a hug and walked out of the room easily. I did not observe [X] to converse in full sentences in English, expected for a child of her age who was raised here and attends formal day care with other English speaking children.
55.Overall the observations seemed energetic and the father remained engaging and warm with [X] for the most part, however, his behaviour towards the end of the observations did not seem necessary or child focused.
As to the respondent and [X] she observed:
57.The mother and [X] spoke in [Country B language] for the duration of the interview. I observed them conversing back and forth. The interpreter informed me that [X] was using full sentences and constructing stories about having a little café that the mother was a customer in. The mother seemed to allow [X] to lead the session with minimal redirection. The mother remained engaged and was warm towards [X] throughout the observations.
58. The overall tone of the observations was warm and responsive.
The conflict afflicting the parental relationship has clearly not stopped X from forming strong and loving bonds with her parents and each of them with her. I find that X has a strong relationship with the respondent. That is not surprising given that she has lived the entirety of her life with her. I find that X’s relationship with the respondent is her most significant relationship.
I also find that X has a positive, warm and loving relationship with the applicant. That is a little surprising in that the chronology demonstrates that until October 2019 X’s opportunity to pursue a relationship with the applicant was limited. The nature and strength of the relationship observed by Ms C is consistent with the respondent being disposed to encourage and facilitate X’s relationship with the applicant. I am satisfied that that relationship that X enjoys with the applicant is a meaningful relationship.
X has no other family in Australia and there is no evidence about the strength of her relationship with her maternal or paternal grandparents. Her maternal grandparents live in Country B and her paternal grandparents live in Country J. On the evidence, she has met her paternal grandparents once but has spent considerably more time with her maternal grandparents, albeit in the very early years of her life.
The evidence demonstrates that both parties have taken up the opportunity to participate in making decisions about major long‑term issues in relation to X. That is not to say that the parties have always made such decisions jointly, but each has tried to be involved. The evidence about the selection of pre-school and school for X provides evidence of those attempts.
I do not consider that it is likely that these parties will be able to communicate constructively about X’s parenting arrangements in the future. The evidence shows that the applicant sends voluminous correspondence via email to the respondent. The respondent sees some of these emails, quite legitimately in my view, as critical of her parenting of X or of her personally. The tone of the applicant’s correspondence with the respondent in the past is not conducive to cooperative parenting and, at times, has been insulting.
There is no suggestion that either parent or the applicant in particular, has not taken up opportunities to spend time with X or communicate with her. Both parents are, I am satisfied, dedicated to their daughter and each has done that which is necessary to spend as much time with her as they can. For his part, the applicant has travelled internationally to Country B, where he clearly does not feel welcomed by the maternal family, to develop his relationship with X. He has also litigated for two years, with all of the expense and difficulty that entails, so X can have the opportunity to live in the same country as him. I do note the unchallenged evidence of the witness Mr E that when time between X and the applicant happened at his home, the applicant would usually only spend a short amount of time entertaining X before turning his attention to the respondent by saying things like “[Ms Todora], let’s talk” or “[Ms Todora], I need to talk to you” but I do not consider that evidence demonstrates that the applicant is not interested in spending time with and pursuing a relationship with his daughter.
Perhaps the best evidence of the respondent’s dedication to X is her continued presence in Australia, given the difficulty it imposes on her.
The evidence permits of a finding, which I make, that the respondent has fulfilled her obligations to maintain X. The evidence also shows that the applicant has made financial provision for X. He has sent money to the respondent when she was living in Country B and he has made financial provision for X here in Australia. She says that the payments from him were only after she made requests but there seems to be no complaint from her that he would not provide when he was requested to do so. The applicant offered to give the respondent money to enable her to get her driving licence when she was in Country B, but she declined his invitation.
The respondent’s primary proposal would see X living in Country B. The evidence of Ms C is that this will likely affect and diminish the possibility of X having a meaningful relationship with the applicant. It was not her evidence that a meaningful relationship would be impossible if X was to live in Country B. Save for the question of the language barrier between X and the applicant, it was not Ms C’s evidence that a meaningful relationship could not be maintained between X and the applicant if X lived in Country B. Nonetheless, her residence there would limit her opportunities to have him involved in her life to, effectively, holiday times and the occasions he can travel to Country B. This represents a significant disadvantage to X given that she has good, established relationships with each of her parents. It would also be unlikely that she would spend significant time with any of her paternal family members either.
But geography alone will not necessarily mean that X cannot have a meaningful relationship with the applicant. The tyranny of distance can be ameliorated to an extent by regular and frequent electronic communication. I do not suggest that is a substitute for regular and frequent face-to-face time, but it will permit the maintenance of X’s relationship with her father between face-to-face visits if it is ordered.

Of course, electronic communication will only be useful if X and the applicant can communicate. X does not have well developed English language skills. She communicates with the respondent in Country B as the family consultant observed. The applicant does not speak Country B. Apart from X’s underdeveloped English language skills she and the applicant have no common language. That circumstance necessarily weighs heavily against the efficacy of any orders for electronic communication between X and the applicant should she reside in Country B. This is a significant matter.
In the event that X's English language skills do not improve, not only will electronic communication be less than optimal between X and the applicant, so too will be face-to-face contact. Any proposal that would see X living in Country B carries with it this significant disadvantage unless I can be satisfied that efficacious communication (either electronically or face-to-face) can be established between X and the applicant.
The respondent suggests that she will ensure that X attends a school where she will learn English. Further, she said that her own mother is able to assist X to learn English. I do not have any evidence from her mother of her willingness to participate in this or her qualifications to teach X. But what is clear from the evidence of the respondent is that she has a close relationship with her family in Country B and her parents. It is likely, in those circumstances I think, that the respondent’s evidence on this issue is accurate and her mother has both the capacity and willingness to assist with X's English language skills. The information I have about the school X might attend in Country B is vague at best.
Notwithstanding these matters, given X’s current ability to speak English and that she would be immersed in the Country B language, these assurances from the respondent do little to ameliorate the concern that a language barrier would grow between X and her father, thereby impeding the continued development of their relationship. Notably, there was no suggestion from the respondent that she would attempt to improve her own English language skills with a view to assisting X. Her evidence that she and X converse in the Country B language rather than the English language tends to underscore the proposition that it is likely that X's English language skills would not be nurtured in the event she lived in Country B.
This is a significant disadvantage of the respondent’s primary proposal.
The respondent’s alternative proposal and the applicant’s principal proposal would avoid this disadvantage but those proposals introduce their own disadvantages. One of the disadvantages would see X missing out on spending significant time with her extended maternal family. She would, however, have greater opportunities to spend time with her father and his parents, who he says, would visit Australia from time to time. These alternative proposals would allow X to develop her relationship with both parents and to have each of them involved in her life in a substantial and significant way.
The submissions I received from the applicant regarding what changes, if any, I should make to the current regime for X were directed towards the issue of whether X should live in Country B or Australia, rather than whether I should make the orders which the applicant seeks. But lest it be said that I did not consider the applicant’s proposal that X spend more time with him than she does with the respondent, the following evidence in the second family report persuades me that such an arrangement is not and will not likely be in her best interests:
69.…Whilst [X] is able to develop strong bonds with other significant people in her life such as her father, her connection and time with her primacy care giver remains the most significant to her development. Changing a five year old from her primary care giver where no significant risks exist to warrant such a change and in light of her primary language being Country B is harmful and damaging. [X] would feel confused and rejected by her mother which will having significant emotional impact on her sense of security and trust in safe relationships
In short, the change would be harmful and there is no identified risk in or from the respondent’s care justifying imposing that harm on her.
I do not have any evidence before me on the cost or practicality of travel between Country B and Australia. Given the frequency of trips in the past, such travel has plainly been within the means of the parties prior to the commencement of proceedings. In the same way, the history of the parties indicates electronic contact between Country B and Australia has been feasible. Country B is presently the centre of international attention. No party considered it necessary to put evidence before me that by reason of that attention the practicability of travel to and from, or communication with, Country B has become more difficult or changed in any other way.
In the same way, I have scant evidence on the practicability of the respondent remaining in Australia. The little evidence I do have persuades me that the respondent would be able to remain in Australia while meeting X’s needs. She has done so until now. In terms of her own employment, her evidence is that she considers that her English language skills are insufficient to secure employment as a professional. That argument loses any real force given her evidence that she has never worked as a professional (in Country B or elsewhere) since receiving her degree. She said in cross-examination that she had not attempted to obtain any employment at all in Australia.
On the other hand, the respondent’s evidence is that she has employment waiting for her in Country B. Although she has never been employed in Country B as a professional, she does have employment as manager in an office. Annexed to her affidavit of evidence-in-chief purports to be a letter from her employer setting out that she is on “indefinite leave since October 14 2019 with her position and social package guaranteed upon return from leave”. That letter, dated 10 January 2022 suggests that the respondent’s employment position remains available to her.
I have no concerns about either parent’s capacity to meet X’s physical needs. She has been fed and housed for the last two years and I do not expect that to change. The respondent is at some disadvantage in this respect because she does not have a driving license nor a car. She travels using public transport which means that her journeys can sometimes be longer than they should otherwise be. Should the respondent and X return to Country B, the respondent has an apartment in City G where she might live with X. Her parents live close by and the school to which she proposes to send X is also close by.
The respondent has taken significant steps to ensure that X’s emotional needs are met by having a relationship with both of her parents. She would not be in Australia now otherwise. She has subverted her own needs and wants to ensure X has the benefit of a relationship with her father. There is no reason to think, on the evidence, that she will not continue to do so.
The argument made by the respondent in her trial affidavit at paragraph is persuasive:
58.I understand that he is [X’s] father, and that is why I have remained in contact with him and came to Australia and let him visit us in [Country B]. I have always recognized his importance in [X’s] life. I could have just stayed in [Country B] and blocked all contact and not let him see her when he came to [Country B], but I did not do that.
These are not hollow words. The respondent’s actions bear them out. I am confident that what she swears is in fact what she believes and that she recognises that the applicant is important to X.
With that said, she has at times put X’s relationship with the applicant second to her aversion to him. What I will refer to as the “dance school saga” is a clear example of that. During that event, the respondent asked to adjust the times that X would spend with the applicant so that she could take X to a dance performance for which X had been preparing. The applicant refused, as he wanted to attend the performance. He did not know where the dance school was or the details of the performance. The respondent had hidden these things from him so that he would not attend the dance school, as it decreased the prospect of him finding out where she lived or otherwise coming into contact with her. This explanation makes less sense when assessed against the orders that she seeks and her evidence that she is aware that the applicant knows where she lives and that he has deliberately approached her house. In that respect, I have in evidence a video of a car travelling outside of a house, including audio of what sounds like an exclamation in Country B language. This is said to be a video taken by the respondent of the applicant’s car travelling on her street. I accept that description is accurate.
However, if I accept this description, it demonstrates that the applicant has known where the respondent lived at least since at least 18 November 2021. None of the fears which the respondent uses to justify hiding the identity or location of X’s school and dance classes from the applicant have come to pass.
Additionally, the respondent seeks orders, if I should determine that X will remain in Australia, that she “forthwith advise [the applicant] of the school at which the child attends.” The location of X’s school has been withheld for much the same reasons as the location of her dance classes. It is not clear to me why it is safe for the applicant to have this information after the trial whereas it was not safe beforehand.
That is not to say that the applicant has behaved well. The correspondence from him to the respondent and his conduct toward her revealed by the evidence is appalling. Of considerable significance is the fact that he made a notification to the Department of Child Safety to the effect that X was a risk of sexual abuse in the respondent’s care. Her evidence, which I accept, is that she was interviewed by officers from the Department who took the matter no further.
X has the right to have her father involved in her life, including her extracurricular activities such as her dancing. Denying her that right to preserve the respondent’s safety might be justifiable, but the evidence shows the risks to the respondent, if any, have had ample opportunity to crystallise and they have not.
I conclude that the respondent less fears the applicant and more wants to avoid dealing with him. I empathise with that. However, while I will make orders regulating how the parties will deal with one another, I do not consider that the cost to X of excluding the applicant from things such as her dance performances was justified by the risk the respondent perceived he presented to her own safety.
I am less sure of the applicant’s attitude and capacity to meet X’s emotional needs. For one, the orders he seeks give me pause about the importance he places on X’s relationship with her mother. Spending more time with the applicant than the respondent, considering the evidence about X’s attachment, is not justified by the evidence. It presents as an attempt by the applicant to ‘win’ these proceedings at the expense of X’s relationship with her mother. In that respect his proposal is disadvantageous to X.
Further, his unwillingness to adjust the arrangements to accommodate X attending school and his inability to attend the ordered changeover times on time anyway, have resulted in X being late for school a number of times. That includes her first day of school. Having regard to his utterly unconvincing explanations about these events, he demonstrates a willingness to place engaging with the respondent as an adversary ahead of acting as X’s parent and meeting her needs.
His statements that the school he has chosen would better suit X’s needs fall flat when contrasted against his inability to prioritise X attending school at all. It again seems to me that, at times, he is more interested in getting his way than he is in X herself.
Perhaps the best summation of the applicant’s attitude is contained in Ms C’s most recent report, she says:
63.… The father appeared persistent in projecting strong convictions that his judgements and decision making, goals and rational are the most relevant to [X’s] wellbeing, almost eliminating the mother’s significance in [X’s] life.
Overall, the applicant comports himself as a man who frequently places being right and in control ahead of achieving the best outcomes for his child. His communications with the respondent, in terms of their tone and content reveal that the applicant does not hold the respondent in high regard. Those matters and his other actions such as making a notification to the Department of Child Safety in completely unwarranted circumstances are no doubt designed to undermine the respondent’s confidence in her own parenting as well as perhaps X’s relationship with the respondent. There is nothing in the evidence to suggest that the applicant understands the effects of his behaviours upon the respondent or the potential harm to X’s relationship with the respondent if his behaviours continue.
In contrast, while she has at times allowed her aversion to the applicant to supersede X’s needs, the respondent demonstrates a willingness and capacity to literally travel across the globe to meet those needs.
The possibility that the respondent’s parenting capacity would be impacted by contact with the applicant or by being required to choose between living in Australia with X or returning to Country B without her has troubled me. It is one of the most important issues that arises in this case. However, her evidence on this important matter is problematical.
The respondent has been attending counselling through L Services since May 2021. She does not give any express evidence about the purpose of that counselling. Her evidence is that she usually sees her counsellor 2 or 3 times per month. She swears “I do not know how I would have managed without the counselling. It has been a terrible time”.
The respondent’s solicitors sought a report from the respondent’s counsellor. The counsellor declined to make a report on two bases: first, that they are a counsellor to which Division 2 of Part II of the Act applies; and second because providing reports is not a service they offer.
Correspondence from the respondent’s solicitor to the counsellor annexed to her affidavit demonstrates that she dealt with the first issue – she made her consent for the report being prepared clear. She does not really offer an explanation on the second issue, except that she believed the counsellors’ refusal to provide reports was conclusive. That is wrong. An essential witness who does not want to give evidence can be compelled to give evidence. Sadly that did not occur in this case. When I raised this issue during the hearing, there was no application by the respondent for leave to issue a subpoena to the recalcitrant witness.
The respondent’s evidence about what it is that she discusses with her counsellor tends to indicate that the purpose of the counselling is to assist the respondent to cope with the applicant and the present conflict with him. The respondent swears:
145.… I have told her that I have started suffering from panic attacks. I started having panic attacks in approximately October 2021, around the time that I reported [Mr Todora] for breaching the Temporary Protection Order. They have become increasingly worse since I saw [Mr Todora] drive past my house in November 2021. I believe that these panic attacks are caused by the pressure placed on me by [Mr Todora] through his consistent and repetitive contact and allegations, and from being away from my family and being unable to return home.
146.[Ms K] tries to help me establish boundaries for myself and encourages me to think positively about my circumstances. I do think that attending counselling with [Ms K] has been helpful to me, although I continue to feel tired and emotionally drained. I do try to think positively, but I am feeling tired from constantly being scared, worried or anxious about [Mr Todora’s] next actions.
147.I never know what new allegation he might make against me and I am distressed every time I see an email from him. I hate opening and reading them. His constant criticisms are endless – no matter what I do he will criticise me. I feel constantly depressed and sad and don’t know what to do so that he will leave me alone and I can just focus on [X] and my life. My life here is very, very sad and very, very lonely.
Whilst the respondent swears to being friends with Mr and Ms E and having another acquaintance who has a young daughter slightly older than X, she has no other friends, family or support in Australia.
The family consultant, Ms C, gave evidence that the conduct the applicant has subjected the respondent to could induce a high level of stress in a person like the respondent. Further, that stress could impact her ability to focus on X’s needs. Ms C was not cross-examined and I have no evidence on the probability that this level of stress afflicts the respondent, nor the magnitude of this impact on X. What I do have, however, is the respondent’s unchallenged evidence that she suffers from panic attacks and that she feels tired, emotionally drained and is worried and anxious about the applicant’s actions. Without intending to convey a medical diagnosis I think, the respondent says that she feels constantly depressed and sad. That she is having counselling with a frequency of 2 to 3 times per month is consistent with these experiences and feelings reported by the respondent.
Connected with this issue is the family violence that has occurred between these parties and the impact of the family violence perpetrated by the applicant upon the respondent on her parenting capacity.
There has plainly been family violence involving X’s mother and father. I have already set out above my conclusions about the respondent’s claim that the applicant sexually assaulted her on 22 December 2017. I am also satisfied that the applicant has engaged in harassing behaviour that has caused the respondent to be concerned for her safety. Additionally, I note that the respondent accepts that she has been violent towards the applicant and in particular on one occasion she threw a slipper at the applicant when they were having an argument.
The applicant has commenced his own domestic violence proceedings against the respondent. One of his claims (perhaps his only claim) is that she slapped him prior to separation. He did not commence his proceeding until January 2021. It is difficult to see how in those circumstances his application is genuine. Whilst he raises complaint about the respondent’s attendances upon X and him when they have been spending time together in early 2020 and the behaviour of Mr and Ms E, I do not accept his evidence about these matters. I do not accept his claims of feeling harassed nor intimidated by either the respondent or Mr and Ms E and in particular Mr E. Rather, I am satisfied that he views these interactions as unwarranted incursions into his parenting of X and merely a source of irritation and frustration because his own views are challenged. The episode concerning X’s shoes is perhaps the best example of this.
Ms C suggests that by pursuing a protection order against the respondent, the applicant might be seen as engaging in systems abuse and inflicting further stress and pressure onto the respondent. I am satisfied that is exactly what the applicant’s actions in commencing and pursuing a protection order against the respondent represent and I so find. His complaints to the Department of Child Safety fall into the same category. Indeed, Ms C opines:
62.If the father is actively attempting to create a concerning narrative about the mother, people she associates with, generating doubts in her parenting efficacy in addition to seeking the DVO, reporting to Child Safety, those actions may be viewed as an extension of family violence and it is concerning. Whilst he may not be taking overt action to hurt [X] directly, system abuse as a form of violence can induce high level of stress on survivors, impacting on the mother’s ability to be focused on [X’s] needs, whilst she addresses and navigates such allegations. This is compounded by the mother’s increased vulnerability due to being a CALD woman with language barriers living in a foreign country, with no familial support network.

I am satisfied and I find that the applicant is indeed actively attempting to create a concerning narrative about the respondent and the people with whom she associates. His communications with her in both the tone and content, the reports to Child Safety and the attacks on those from whom the respondent has sought some support have all induced what she describes as “panic attacks”. In my view, that is merely a different way of saying that she is experiencing high levels of stress. That stress has reflected itself in the respondent’s parenting of X. The poor choices that she made in relation to the dance recital bear that out.
I have accepted generally the respondent’s evidence that the applicant and at times his family have continued to pressure her to reconcile with the applicant. The applicant’s overtures in this regard continued throughout last year. He is clearly unable to accept and respect the respondent’s decision to end her relationship with him. Ms C opines that this frequent and constant pressure would constitute further coercive and controlling behaviour considering the distress the respondent experiences through each individual event and increasing pressure collectively. The respondent’s evidence is that she is on edge and anxious and fearful of what the applicant might do next. According to Ms C’s evidence these tense emotional states as a result of the father’ behaviours are likely impacting on the respondent’s emotional health. As such, much of her energy is likely being diverted from X and towards managing her own sense of safety and security. Ms C records that X has witnessed her mother being sad and becomes sad herself. These experiences will affect X in the long-term. Ms C’s evidence is that extended states of sadness and stress will affect the way X makes sense of the adult world and relationships, associating negative feelings, anxiety and sense of loss in her relationships with the adults in her life. This may affect X’s confidence and trust in others to build positive connections with peers at this age or struggle forming trust in her relationships as an adult.
I am satisfied and I find, that the applicant’s behaviours towards the respondent that I have recounted above have caused her to feel stressed or to suffer “panic attacks” as she describes them. She is constantly worried and anxious about the applicant’s conduct towards her and since separation, the applicant has engage in behaviours towards the respondent that are designed to harass her. I am satisfied and I find that the respondent is “very, very sad and very, very lonely” (to use her words) and those feelings of sadness and loneliness are entirely understandable. Her sense that she is trapped in Australia by the actions of the applicant is entirely legitimate.
The impact of the applicant’s behaviours upon the respondent and her feelings of sadness and loneliness have and are likely to continue to impact upon her capacity to properly parent X in the ways explained by Ms C. More than that, those matters are likely to directly impact upon X in the ways explained by Ms C.
Conclusions
The presumption of equal shared parental responsibility does not apply in this case because I am satisfied that there has been family violence between the parties. Subsection 61DA(2) is clearly engaged. The parties’ co-parenting relationship and their communication skills are such that it would not be in X’s best interests for there to be an order which required her parents to make decisions about major long-term issues for her jointly. Ms C’s assessment of the applicant’s attitude towards the respondent’s place in decision-making for X satisfies me that an order for equal shared parental responsibility is likely to be fraught. I consider that it is best for the parent with whom X will spend most of her time to have responsibility for decisions concerning the major long-term issues for her to the exclusion of the other parent.
The applicant’s primary proposal carries disadvantages for X. The primary disadvantage is that it will have the effect, over time, of interfering with her most significant relationship – her relationship with her mother. There is no evidence that suggests that interfering with that relationship will be in X’s best interests. The expert testimony warns against it. I accept Ms C’s evidence in that regard.
The applicant’s explanation for why his primary order is in X’s best interests is difficult to understand. His proposal goes against the weight of the evidence and in the context of my findings concerning the applicant’s harassing and controlling behaviour, it is troubling. It might be seen as a continuation of the harassment of the respondent to which I have referred above. In the context of the matter as a whole, it sticks out as the codification of a petty ascendency over the respondent.
The applicant’s primary proposal also carries the decision manage that X’s mother will continue to be exposed to the stress soars that she has experienced since 2019 and which necessarily will have an impact upon her ability to provide the best possible parenting she can to X.
It is difficult to identify any advantages for X in the applicant’s primary proposal other than the maintenance of her present relationship with the applicant which on its face may develop over time but at what cost? I am satisfied that the cost will likely be a deterioration in the respondent’s parenting capacity which will not be in X’s interests.
The applicant provided no alternative proposal that I should consider in the event that I was against his primary proposal but nonetheless considered that X should remain living in Australia. His alternative proposal was posited on the basis that X would return to Country B. In any event, for the reasons I have set out below it is difficult to see what alternative arrangement might be put in place that meets X’s welfare and at the same time would see her living primarily in Australia with the respondent.
The respondent’s primary proposal also carries disadvantages for X. X will not be able to spend regular and frequent face-to-face time with the applicant. She may be able to have regular and frequent electronic communication with him but her undeveloped English language skills will present a hurdle to the further development of X’s relationship with the applicant. I have noted above, however, that the maintenance of a meaningful relationship between X and the applicant if she was to live in Country B is not impossible. Indeed, I am satisfied that the chances of a meaningful relationship being continued our high because I am satisfied that the respondent genuinely accepts that it will be to X’s advantage for her to have a meaningful relationship with the applicant. The respondent’s conduct since X’s birth bespeaks her commitment to X’s relationship with the applicant. Indeed, as she herself says, if she was not committed to that relationship she would not be in the predicament in which she now finds herself because she would never have brought X to Australia in the first place.
The respondent’s primary proposal also carries significant advantages for X. The respondent will be alleviated of the stress that she now experiences living in Australia. Her feelings of sadness and loneliness are likely to be ameliorated. She will have the support of her family. She will live in her own accommodation and she will have her own employment. Those matters in turn will put her in a position to provide X with the best parenting that she can. It will also mean that X is not exposed to the risks identified by Ms C from her mother’s experiences here in Australia.
Having regard to the matters I have set out above in my view, the respondent’s primary proposal is the most advantageous for X. Whilst it is not without its disadvantages and there will be challenges for the parties and for X, I am entirely satisfied that X’s relationship with the applicant will be fostered, encouraged and facilitated by the respondent notwithstanding there will be a significant geographical distance between the parties. For the reasons I have expressed above, I consider that the language barrier that might be seen to exist between X and her father will be addressed by the respondent. At the same time, the stress and anxiety presently experienced by the respondent which, as I have found above, necessarily affects her capacity to parent X and which may be impacting directly upon X, will be alleviated. Her primary relationship with the respondent will remain intact. That will be a much more advantageous position for X then remaining in Australia in the primary care of her mother but with her parenting capacity compromised.
One matter which is often addressed in cases such as this is the efficacy of any orders in the jurisdiction in which a parent who wishes to live outside of Australia intends to reside. That matter, however, was not addressed in this case. There is no evidence about whether it is possible to either make orders which are enforceable in Country B or whether there is a process whereby orders mirroring those made here might be made in Country B and thereafter be enforceable. In the absence of such evidence, it occurs to me that there is not much point in making any order other than that X live with the respondent and that she be permitted to remove her from the Commonwealth of Australia. However, out of deference to the endeavours of the parties to formulate orders that might be made depending upon the findings made by the court, I have adopted the orders suggested by the respondent as her primary proposal.
The applicant proposes orders that would impose an obligation on the respondent to make enquiries and if possible affect the making of Nero orders in Country B so as to assist the enforceability of any orders made in this court. I do not intend to make that order because such an order will not be enforceable in Country B in any event and there is simply no evidence before me to suggest that marauders could be made.
The respondent suggested orders that would require her to provide a security or security of $40,000 to secure her performance of the orders that might be made by this court. Again, I do not intend to make that order because I cannot see the point of it. There is no suggestion that the orders that I might make here will be enforceable in Country B so that even if the applicant had access to $40,000 to assist him to enforce the orders in Country B it would be for naught. At best it would provide him with $40,000 but little else. At worst, it deprives the respondent and $40,000 which you might otherwise use usefully towards X’s welfare.
The orders proposed by the respondent at the conclusion of the trial (save for the orders for the provision of security) meet X’s needs in my view. They are preferable to the orders suggested by the applicant because, on their face they are sensitive to X’s age and development. They recognise that X will not spend much face-to-face time with her father by reason of the tyranny of distance. Moreover, the orders proposed by the applicant for time between he and X should she reside Country B are ill-formed and lack particularity. For example, as drawn, they seem to oblige the respondent to bring X to Australia for 2 periods of 4 weeks per year (and then later when she reaches school for a period of 8 weeks per year) but the orders say nothing about how X should spend time with the applicant when she is here. They make no particularised provision for X to spend time with the applicant in the event he is able to travel to Country B.
I prefer the orders proposed by the respondent. Accordingly, I make the orders at the commencement of my reasons.

I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.
Associate:
Dated: 14 June 2022

File number(s):	BRC1283 of 2020
Judgment of:	JARRETT J
Date of judgment:	14 June 2022
Catchwords:	FAMILY LAW AND CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – best interests of the child – where the child is a citizen of Country B and Australia –where Country B has been the child’s primary country of residence since birth – where proceedings commenced while mother and child in Australia for brief travel to facilitate paternal relationship – where the mother seeks to maintain Country B as the child’s primary country of residence – where the mother values and facilitates the child’s relationship with the father – where the child has limited English skills and English is her only common language with the father – where the mother is the child’s primary caregiver – where remaining in Australia, by virtue of social isolation, imposition and the father’s conduct impact upon the mother’s parenting capacity– where the mother’s parenting capacity will likely continue to decline if the child remains in Australia
Legislation:	Evidence Act 1995 (Cth) s,140 Family Law Act 1975 (Cth) ss, 4AB, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(2), 61DA, 62G(2), 64B(2), 69ZT
Cases cited:	AMS v AIF (1999) 1999 CLR 160 B and B: Family Law Reform Act (1997) FLC 92-755 Briginshaw v Briginshaw (1938) 60 CLR 336 Goode & Goode (2006) FLC ¶93–296 R v Lillyman [1896] 2 QB 167 at 170 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	163
Date of last submission/s:	4 May 2022
Date of hearing:	3 and 4 May 2022
Place:	Brisbane
Counsel for the Applicant:	Mr Cameron
Solicitor for the Applicant:	Life Law Solutions
Counsel for the Respondent:	Ms Carmody
Solicitor for the Respondent:	Legal Aid Queensland
Counsel for the Independent Children’s Lawyer	Ms McArdle
Solicitor for the Independent Children’s Lawyer	Jenny Boulton Solicitor

BRC1283 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR TODORA Applicant
AND:	MS TODORA Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	JARRETT J
DATE OF ORDER:	14 June 2022