Vinogradov & Traversi - [2024] FedCFamC2F 1770

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vinogradov & Traversi [2024] FedCFamC2F 1770

File number(s): NCC 2366 of 2022

Judgment of: JUDGE BECKHOUSE

Date of judgment: 19 December 2024

Catchwords: FAMILY LAW – CHILDREN – International relocation – Where mother seeks to relocate to United States with child who has a medical condition – Where child requires lifelong medical treatment and support – Where the mother has a disability – Where limited weight is placed on the Single Expert Report – Mother permitted to relocate with the child.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 60CG, 61CA, 61DAA

Cases cited:
A & A: Relocation Approach (2000) FLC 93-035

AMS v AIF (1999) 199 CLR 160

Franklyn & Franklyn [2019] FamCAFC 256

Isles & Nelissen (2022) FLC 94-092

Morgan & Miles (2007) FLC 93-343

Oswald & Karrington (2016) FLC 93-726

Sayer & Radcliffe (2012) 48 Fam LR 298

U v U (2002) 211 CLR 238

Division: Division 2 Family Law

Number of paragraphs: 198

Date of hearing: 7-10 May and 29 August 2024

Place: Sydney

Counsel for the Applicant: Mr Guterres

Solicitor for the Applicant: Conditsis Lawyers

Counsel for the Respondent: Mr Mathews

Solicitor for the Respondent: Jones Hardy

Counsel for the Independent Children's Lawyer: Ms Windsor

Solicitor for the Independent Children's Lawyer: Ashby Family Solicitors
ORDERS

NCC 2366 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VINOGRADOV

Applicant

AND:
MR TRAVERSI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

19 DECEMBER 2024

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous orders be discharged.

Parental Responsibility
2.The parents have joint decision-making responsibility for X, born in 2019 and in relation to major long-term issues:
2.1the Mother has sole decision-making responsibility for X’s health and education needs; and
2.2the parents must otherwise make joint decisions in relation to all other major long-term issues.

3.Prior to exercising sole decision-making responsibility in Order 2.1, the Mother must:
3.1provide the Father with no less than 14 days’ notice in writing of any such proposed decision;
3.2the Mother is to consult with the Father via written communication with regard to any such proposed decision and make a genuine effort to consider his expressed view and make a genuine effort to reach agreement with the Father about any such proposed decision; and
3.3in the event that no agreement is reached, the Mother shall make the final decision and within seven (7) days of doing so, provide the Father with written confirmation of the decision.

Live with arrangements
4.X live with the Mother.
5.The Mother will be permitted to relocate X's residence to City B, State D, the United States of America (“USA”).
6.The Mother is restrained from relocating X's residence outside State D.

Spend time with arrangements
7.X will spend time with the Father as agreed between the parties, and failing agreement, as follows:
7.1Until the Mother and X relocate to the USA in a two-weekly cycle as follows:
7.1.1In week 1:
7.1.1.1Each Wednesday from 10.00 am to 12.00 pm; and
7.1.1.2Each Saturday from 11.00 am to 6.30 pm.

7.1.2In week 2:
7.1.2.1Each Wednesday from 10.00 am to 12.00 pm; and
7.1.2.2Each Saturday from 10.30 am to 6.00 pm Sunday.

7.2While X is living with the Mother in the USA:
7.2.1During a period of no less than 14 consecutive days in the USA summer vacation period (between June and August) as agreed between the parties and failing agreement as follows:
7.2.1.1For the first and second USA summer vacation period following the date of these orders as follows:
7.2.1.1.1Each Monday, Wednesday, and Friday from 9.00 am until 3.00 pm; and
7.2.1.1.2 Each Saturday from 9.00 am to 3.00 pm Sunday.

7.2.1.2For the third and fourth USA summer vacation period following the date of these orders as follows:
7.2.1.2.1Each Monday and Wednesday from 9.00 am until 5.00 pm; and
7.2.1.2.2Each Friday from 9.00 am to 5.00 pm Sunday.

7.2.2For the purpose of X’s time with the Father during the USA summer vacation period in Order 7.2 herein:
7.2.2.1X’s time with the Father shall occur in the USA in even-numbered years; and
7.2.2.2X’s time with the Father shall occur in Australia in odd-numbered years.

7.2.3On any other date that the Father travels to the USA for a period of no less than 14 consecutive days PROVIDED THAT the Father provides the Mother with 60 days' written notice of the dates he intends to spend time with X pursuant to this order, as follows:
7.2.3.1For the first 24-month period following the date of these orders as follows:
7.2.3.1.1Each Monday, Wednesday, and Friday from 9.00 am until 3.00 pm if X is not due to attend school that day, or from the conclusion of school until 7.00 pm if X is due to attend school that day; and
7.2.3.1.2Each Saturday from 9.00 am to 3.00 pm Sunday.

7.2.3.2For the second 24-month period following the date of these orders as follows:
7.2.3.2.1Each Monday and Wednesday from 9.00 am until 5.00 pm if X is not due to attend school that day, or from the conclusion of school until 7.00 pm if X is due to attend school that day; and
7.2.3.2.2Each Friday from 9.00 am to 5.00 pm Sunday.

7.2.4In addition to Order 7.2.3 above, should the Father travel to the USA during the Christmas period as set out in Order 12.4 below.
7.2.5After the end of the fourth year following the date of these orders, the parties shall attend family dispute resolution with a view to reaching agreement regarding increasing X's overnight time with the Father in a manner that is child-focused and appropriate given her stage of development and medical needs.
7.2.6In the event that the parties are unable to reach agreement pursuant to Order 7.2.5 above, the Father shall continue to spend time with X in accordance with Order 7.2.3.2 above.

8.For the purpose of changeover:
8.1When X is spending time with the Father in Australia, changeover shall occur at Suburb C Railway Station until X has relocated to the USA and thereafter at such location nominated by the Father unless otherwise expressly agreed in writing between the parties.
8.2When X is spending time with the Father in the USA, changeover shall occur at either X’s home or X's school (as nominated by the Mother) unless otherwise expressly agreed in writing between the parties.

Cost of travel
9.The cost of X's return airfare to Australia shall be shared equally between the Mother and Father.
10.The Father shall be responsible for his airfare and accommodation when he is travelling to the USA.
11.The Mother shall be responsible for her airfare and accommodation when she is travelling to Australia.

Spend time with arrangements on special occasions
12.X spend time with each parent on the following special occasions:
12.1With the Mother on the Mother’s Day weekend from the conclusion of school on the Friday prior to Mother’s Day (or 3.30 pm if X does not attend school that day) until the following Monday at the commencement of school (or 9.00 am if X does not attend school that day).
12.2With the Father on the Father’s Day weekend from the conclusion of school on the Friday prior to Father’s Day (or 3.30 pm if X does not attend school that day) until the following Monday at the commencement of school (or 9.00 am if X does not attend school that day).
12.3Until X relocates to the USA, with the father during the Christmas period from 2.00 pm on 23 December until 2.00 pm on Christmas Day;
12.4Upon X’s relocation to the USA, should the Father travel to the USA during the Christmas period PROVIDED THAT the Father provides the Mother with 60 days’ notice of the dates he intends to travel to the USA, that he spend time with X as agreed, but failing agreement, as follows:
12.4.1In even-numbered years:
12.4.1.1With the Father from 2.00 pm on 23 December until 2.00 pm on Christmas Day.

12.4.2In odd-numbered years:
12.4.2.1With the Father from 2.00 pm on Christmas Day until 2.00 pm on 27 December.

12.5On X’s birthday, unless this is a day changeover occurs pursuant to these orders, X shall spend time with the parent who she is not otherwise living or spending time with, as follows:
12.5.1On days X attends school: from the conclusion of school until 6.00 pm; and
12.5.2On days X does not attend school: from 10.00 am until 2.00 pm.

Communication with X
13.The Mother and Father shall have online video calls with X whilst in the care of the other, three (3) times per week at a time that suits both parents, unless otherwise agreed in writing.
14.Each parent will facilitate any video calls X wishes to make to the other parent whilst in their care.

Parenting App
15.Within seven (7) days of the date of these orders, the parents shall each subscribe to a parenting application as agreed between the parents in writing and shall ensure that all non-emergency communication regarding X is conducted through that application.

Information sharing
16.Each parent shall keep the other parent informed at all times of their residential address, a contact telephone number, email address, and shall notify the other in writing as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours for change in contact details, and seven (7) days for change of residential address.
17.In the event of X being admitted to hospital for emergency treatment, receiving treatment by ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, the parent who has X at the time shall immediately, by the best means available, notify the other parent of the following details:
17.1The name and contact details of the medical professional administering the treatment; and
17.2The medical or other complaints for which X was taken to the medical professional; and
17.3Any treatment and/or medication prescribed for or provided to X and the reason for same; and
17.4The prescribing or provision of such medication and/or treatment; and
17.5If admitted to hospital, the name and contact details of the hospital.

18.In the event of X attending upon a medical specialist or being referred for any treatments or procedures or being prescribed any medication, the parent who has X at the time shall immediately, by the best means available, notify the other parent of the following details:
18.1The name and contact details of the medical professional attended by X or referred for X; and
18.2The medical or other complaints for which X were taken to the medical professional; and
18.3Any treatment and/or medication prescribed for or provided to X and the reasons for same; and
18.4The prescribing or provision of such medication and/or treatment; and
18.5The views and recommendations of the treating professional.

Medical authority
19.These orders act as an authority for any treating medical practitioner/health care provider associated with X to release and provide both parents with information about X and act as an authority for either parent to speak to any treating medical practitioner/health care provider associated with X and to obtain from them copies of all reports and any other document associated with X’s health care and wellbeing, and all information that either parent may, from time to time seek in relation to X’s health care and wellbeing.
20.By this order any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by X as they are lawfully able to provide about X, and in determining the extent of their lawful actions.

Restraints
21.Each party is restrained from:
21.1Denigrating the other party, X or any other member of the other party’s family, in the presence or hearing of X, and each party shall do all acts and things necessary to prevent any third party from denigrating the other party or any member of the other party’s family in the presence or hearing of X, including denigrating the other party to any third party who is through school or medical care in contact with X;
21.2Discussing these proceedings, including the contents of any document filed on or on behalf of either party, with X;
21.3Questioning X about the other party’s partner, fiancée, spouse or that party’s family;
21.4Discussing financial matters concerning either party’s financial position or obligations with X; and
21.5Using X for conveying messages concerning medical care, and or parenting arrangements with such information to be provided as set out as per the orders directly between parents.

Travel
22.Each party shall do all acts and sign all documents necessary to renew X’s passport/s within 14 days of a written request from the other party to do so, with the parties to share the costs of that passport/s renewal in equal shares. Pursuant to s 65YA of the Family Law Act 1975 (Cth), should either parent wish to travel internationally with X, they may do so, provided that:
22.1The travelling parent shall provide to the non-travelling parent with the following no less than 60 days prior to the intended departure date:
22.1.1The proposed dates of the intended travel;
22.1.2The proposed itinerary including the accommodation/s where X will be staying and the contact details of the accommodation/s (unless that travel occurs within the USA or Australia);
22.1.3A flight itinerary and copy of the return flight tickets;
22.1.4A copy of a travel insurance policy covering the travelling parent and X that is inclusive of cover for medical evacuation;
22.1.5The international travel shall not occur during time that X is due to be attending school unless agreed between the parties.

22.2The Mother shall provide X’s passports to the Father no less than 21 days prior to any date that X is due to depart for international travel with the Father and the Father shall return X’s passport to the Mother no later than 21 days after the date X returns to her usual place of residence.

Independent Children’s Lawyer’s costs
23. The Independent Children’s Lawyer’s oral application for costs is dismissed.

THE COURT NOTES THAT:
A.Orders 4, 12.1, 12.2, 12.4, 12.5, 13 – 22 are made by consent.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The applicant mother, Ms Vinogradov (“the mother”) is in dispute with the respondent father, Mr Traversi (“the father”) about the ongoing parenting arrangements for their 5-year-old daughter, X.
The decision is especially difficult because the mother is disabled and X was born with a medical condition which results in many challenges for her including developmental delays.
The mother is seeking orders permitting her to relocate X to the United States of America (“USA”) where she was born. While the father was also born in the USA, he opposes this application arguing that X’s medical needs will be much better met in Australia. He seeks orders that X remain in Australia so that he can spend increased time with her.
This is a finely balanced case. I have come to the conclusion that X should live with the mother in the USA. These are my reasons for so concluding.
Background
The father was born in 1960 and is 64 years old. He is a dual citizen of the USA and Australia.
The mother was born in 1981 and is 43 years old. She migrated to Australia in 2007 and became an Australian citizen in 2012. She is also a dual citizen of the USA and Australia.
The mother was born with a disability. Since 2019, the mother has received funding through the National Disability Insurance Scheme (“NDIS”).
In 2015, the parties commenced cohabitation.
In 2019, X was born. X is also a dual citizen of the USA and Australia.
In early 2020, X was diagnosed with a medical condition.
In mid-2020, X underwent surgery.
On 7 November 2020 according to the mother or 5 April 2020 according to the father, the parties separated under one roof. They ceased living together on 1 April 2021 when the mother left the home. It is not necessary to make a finding about the actual date of separation.
On 11 August 2022, the mother commenced proceedings seeking orders in relation to parenting and property matters.
On 25 January 2023, a Child Impact Report was completed by Court Child Expert, Ms E (“the Child Impact Report”).
On 14 March 2023, interim parenting orders were made which in summary provided for X to live with her mother, spend time with her father and restrained the parties from removing X from Australia.
On 8 August 2023, orders were made listing the matter for a final hearing.
On 20 February 2024, a Single Expert Report was prepared by clinical psychologist, Ms F.
A four-day final hearing commenced on 7 May 2024. The hearing did not conclude within those four days and it was adjourned for a further day of hearing on 29 August 2024.
As at the date of the final hearing:
(a)The mother was living in rental accommodation in Suburb G with X. It contains an enclosed private yard.
(b)The mother is currently working on a casual basis as an educator. The mother has not re-partnered.
(c)The father was living in rental accommodation in Suburb H which he is sharing with his flatmate.
(d)He had retired, but is currently working on a full-time basis in sales. He has not re-partnered.
(e)The father has been spending time with X in accordance with the current interim orders which in summary provide that:
(i)The father spend time with X each Wednesday from 10.40 am to 12.40 pm and in week 1 on Saturdays from 11.00 am to 6.30 pm and in week 2 from 10.00 am on Saturday to 10.30 am on Sunday.
(ii)The father spends time with X on special occasions including her birthday and on Christmas day.
COMPETING APPLICATIONS
The parties reached agreement in relation to a range of issues.
The mother handed up a final Minute of Order on the last day of the hearing. In summary she seeks that:
(a)X be permitted to relocate and live with her in the USA.
(b)She have sole parental responsibility for X but provide the father with notice of any decisions to be made and consider his views.
(c)X spends time with the father each Wednesday and Saturday until she relocates to the USA.
(d)Upon X relocating to the USA, X spend time with the father during the USA summer vacation period with such time to occur in the USA in even numbered years and in Australia in odd numbered years.
(e)The father spend time with X on any other date he travels to the USA, provided 60 days’ written notice has been provided to her.
(f)In the event X is not permitted to relocate to the USA, the mother proposed that she have sole parental responsibility for X, that X live with her and spend time with the father each Wednesday and each alternate weekend, with such time to increase once X commences school.

The father set out his final orders sought in his Case Outline. An additional Minute of Order containing an alternative proposal was also handed up. By way of summary, he seeks that:
(a)The parties have equal shared parental responsibility for X and that X live with the mother.
(b)The mother be restrained from relocating X’s residence from outside the Sydney metropolitan area.
(c)X spend time with him on a graduated basis culminating in four nights a fortnight.
(d)In the event X is permitted to relocate to the USA, that he spend time with X for up to four weeks, with such time to be in the USA in even numbered years and in Australia in odd numbered years.
(e)Orders for time with X in the event he undertakes additional travel to the USA.
There were a range of matters in which the parties agreed. They were contained in a Minute of Agreed Orders tendered on the last day of the hearing. Those orders have been incorporated into the final orders and are made by consent. In summary those agreed matters are that:
(a)X live with the mother.
(b)X spend time with each parent on a range of identified special occasions.
(c)Communication with X.
(d)The sharing of information about X.
(e)A range of restraints.
(f)Orders permitting the issuing of passports and travel with X.
An Independent Children’s Lawyer (“ICL”) was appointed to act in the best interests of X. There have been two ICLs in this matter. The current ICL filed a Notice of Address for Service on 27 April 2024, only 10 days prior to the commencement of the final hearing. The ICL did not provide the Court with a Proposed Minute of Final Orders or a Case Outline document. In closing submissions counsel for the ICL advised the Court that the ICL supported the Court permitting the mother to relocate to the USA with X.
ISSUES
The issues for determination are:
(a)The allocation of parental responsibility;
(b)Whether the mother should be permitted to relocate the residence of X to the USA;
(c)Whether it is in the best interests of X to live in Australia in the primary care of the mother; and
(d)The time that X should spend with her father.
In determining these issues, findings of fact as to the present circumstances and a prediction of change based on the proposed move to the USA must be made. In doing so, I have regard to what was said by the Full Court in Isles & Nelissen (2022) FLC 94-092 at [50]–[51] about the distinction between proof of historical facts and the prediction of future possibilities.
EVIDENCE
The parties each filed a Case Outline document setting out the documents relied on.
The mother relied on the following documents:
·Further Amended Initiating Application filed on 15 April 2024
·Affidavit of Ms Vinogradov filed on 6 May 2024 (“the mother’s affidavit”)
·Affidavit of the maternal grandmother filed on 19 April 2024
·Affidavit of Dr J filed on 15 April 2024
The father relied on the following documents:
·Amended Response filed on 13 December 2022
·Affidavit of Mr Traversi filed on 10 April 2024
·Affidavit of Mr Traversi filed on 24 April 2024
·Affidavit of Dr K filed on 16 April 2024.
The ICL relied upon the Single Expert Report prepared by Ms F (“the Single Expert”).
It is perhaps worth noting that despite the claims of the parents’ past behaviours and current risks, neither parent proposed supervised or conditional time should be spent by X with the other parent. Each parent acknowledged that the current relationship between them is poor and the level of conflict is high.
SINGLE EXPERT REPORT
The Single Expert saw the parties with X on 5 December 2023.
As well as providing an evaluation in her Report, she made a range of recommendations which can be summarised as follows:
(a)If the mother is granted permission to relocate to the USA with X:
(i)The mother have sole parental responsibility.
(ii)X live with the mother and spend time with the father for two weeks over the summer midyear break, building it to three weeks and alternating between the USA and Australia.
(iii)X have scheduled video calls with the father three times per week.
(b)If X remains living in Australia:
(i)The parties have equal shared parental responsibility.
(ii)X lives with the mother.
(iii)X spends time with the father on alternate weekends and overnight each Wednesday during school terms, and on a week about basis during school holidays.
Her evidence came under considerable challenge. From the outset counsel for the mother maintained that the Report was “woefully deficient”. The expressed concerns included that the Single Expert was not provided with the orders made by the Court on 8 August 2023, meaning that the Single Expert was not clear on what she was being asked to assess. It was therefore argued that “the report fails to address a number of the matters identified in those orders or matters that ordinarily arise in cases involving international relocation”. I did not form this view.
Counsel for the mother also complained that the Report was deficient because the Single Expert did nothing to accommodate the mother’s disability. Tendered was a letter dated 9 August 2023 from the mother’s legal representatives to the Single Expert advising them of the mother’s disability. Under cross-examination the Single Expert conceded that:
(a)she was unaware (despite the letter of 9 August 2023) that the mother had a disability until around 15 minutes of the interview had elapsed;
(b)once aware of the mother’s disability, she put nothing in place to accommodate it; and
(c)she had not read the mother’s material prior to interviewing her. Nor had she read the father’s material. She did not have a follow up interview with either of them, yet made some adverse conclusions in her Report, without them being tested.
I am asked to find that the mother’s participation in the assessment was compromised. Having heard from the Single Expert I was concerned about the weight that I can place on her evidence for the following reasons:
(a)The mother tendered a report provided by a disability service provider in 2021. It had been provided to the Single Expert (as an annexure to the mother’s material) but not read by her before the interview. It observed that even using aids, the mother experiences comprehension difficulties. For example, “it may take her longer to absorb […] information, which may result in her needing repeats and/or the confirmation of […] information. […]” and then further on, it recommended that the mother:
has access to [accommodations], particularly in […] situations that require extended periods of listening. [Ms Vinogradov] is likely to experience increased cognitive load and […] fatigue [over] extended periods of time […].
(Annexure [MV]-01 of the mother’s affidavit)
(b)The Single Expert’s interview with the mother went for 2.5 hours and was followed by a 45 minute observation of the mother’s interaction with X. The same amount of time was allowed to the father for both the interview and observations.
(c)It appears that the Single Expert gave no thought to additional measures that might have been required for the mother, once she became aware of her disability. Instead, she concluded at paragraph 56 of her Report that, “[…] she was able to communicate without any major issues”.
(d)No consideration was given by the Single Expert to reasonable adjustments that could have been made to the interview or assessment process to ensure there was no distortion in the test results arising from her disability. For example, in light of the report tendered by the mother, extra time might have been given to the mother to process questions asked, or another accommodation provided (as occurred for every Court event). This was confirmed under cross-examination:
[COUNSEL FOR THE MOTHER:] You don’t say in your report, for example, that you took more regular breaks than you might otherwise have taken, did you?
[SINGLE EXPERT:]     No, I didn’t. But I also didn’t – they weren’t requested.
…
[COUNSEL FOR THE MOTHER:]      You didn’t, for example, do something like send the mother written questions prior to or after the assessment?
[SINGLE EXPERT:] The mother provided logical responses … and she also said that she could understand, so I – I don’t know … why I, well, needed to.
(Transcript 10 May 2024, p. 324 lines 21-30)
(e)The Single Expert described some of the mother’s responses as “vague” and described her thought processes as “disorganised”. Despite attributing these labels to her, her Report gives no indication of the impact of the mother’s disability on her presentation.
(f)The Single Expert administered psychometric tests. In her Report she discloses that the “Personality Assessment Inventory”, used for evaluating personality and psychopathology, is recommended to take “50 – 60 minutes” to administer.
(g)The Single Expert observed that “[t]he Family Strengths and Needs Assessment Tool assesses parents and caregivers based on significant psychological and psychosocial risk factors”. What is not made clear is what, if any, impact the mother’s disability has on the assessment of psychosocial risk factors.
(h)The Single Expert made the following comments in relation to the validity of the test results:
Validity of Test Results
The PAI provides a number of validity indices that are designed to provide an assessment of factors that could distort the results of testing. Such factors could include failure to complete test items properly, carelessness, reading difficulties, confusion, exaggeration, malingering, or defensiveness. For this protocol, the number of uncompleted items is within acceptable limits.
There was no evidence to suggest that the mother was generally motivated to portray herself as being relatively free of common shortcomings or minor faults or in a more negative or pathological light than the clinical picture would warrant.
(Single Expert Report, paragraphs 79-80; emphasis in original)
(i)Another question that then arises is whether any adjustments might have been required to the particular tests administered, having regard for the mother’s disability. When this was tested in cross-examination the Single Expert was defensive and appeared unable to concede that the mother’s disability may have affected her responses in any way. For example:
[COUNSEL FOR THE MOTHER:] Well, could it be that the problem is with the question? …
[SINGLE EXPERT:] I’ve written hundreds of … I ask this question of everyone. So if you would like to question all my reports, please do.
(Transcript 10 May 2024, p.333 lines 4-6)
She was cross-examined at length about her assessment of the mother’s allegations of family violence which she described as “inconsistent”. Counsel for the mother was critical that she didn’t put this to the mother and give her the opportunity to explain it. Had this alone been the only criticism of her evidence it may not have weighed heavily upon me, but there were other concerns that were raised in cross-examination. These included:
(a)She concluded that the maternal grandmother could provide only limited practical support to the mother and X. She reached this conclusion based on assertions made by the father (and the impression she got from the mother) but had not met nor spoken to the maternal grandmother.
(b)She had an inadequate understanding of what supports might be available to the mother in the USA.
(c)She confirmed that she applied a “lay person” view in concluding that:
[X] would be significantly disadvantaged in the USA without access to Medicare in Australia, including low-cost medication, with universal healthcare unavailable in USA and exorbitant medical fees and costly private insurance.
(Single Expert Report, paragraph 183)
She said this conclusion was based on her own experience, yet her only experience was of the health care, disability sector and NDIS systems in Australia. It was therefore asserted that her personal views had infected the whole Report.
The Single Expert gave useful evidence about X's emotional, psychological, medical development and maturity, especially in the context of how she can maintain relationships between the parties. This aspect of her evidence does not seem to be infected by some of the problems that were raised.
But when it comes to her overall recommendations, I am more cautious. It is possible that the test results provided an accurate reflection of matters such as parental risk factors. Taken alone, her personal views about health care in the USA might be excluded. But given the significant concerns raised with both the process she adopted and the conclusions and recommendations she reached, only limited weight should be placed on most aspects of the Report and especially its conclusions.
THE LAW
The principles to be applied when determining competing parenting applications are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When making a parenting order, the Court must consider what is in the best interests of the child pursuant to s 60CA.
The Act specifies six matters which must be considered in determining what is in a non-indigenous child’s best interests at s 60CC(2).
In contemplating these matters, s 60CC(2A) of the Act requires the Court to consider any history of family violence, abuse or neglect involving the child or a person caring for the child as well as any family violence order that applies.
The Act does not treat relocation cases as a special category of parenting orders. In Morgan & Miles (2007) FLC 93-343 (“Morgan & Miles”), Boland J set out the core principles to be applied. Those core principles are as follows:
80.
…
-that the child’s best interests remain the paramount but not sole consideration;
-that a parent wishing to move does not need to demonstrate compelling reasons;
-that a judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests; and
-the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement.
The Full Court in Sayer & Radcliffe (2012) 48 Fam LR 298 observed:
48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
However, the Court is not bound by those proposals in determining what is in the child’s best interests (U v U (2002) 211 CLR 238 at [80] (“U v U”)).
While the best interests of the child is the paramount consideration in the making of a parenting order, it is not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires and the right of a parent to live where they wish is an important consideration.
In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence (AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”); U v U). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration (U v U at [89]).
In Oswald & Karrington (2016) FLC 93-726, their Honours in the Full Court observed in the following terms:
17. Consequently, as emphasised by the Full Court in D and SV and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
In Franklyn & Franklyn [2019] FamCAFC 256, the Full Court explained the applicable law in these terms:
27.There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
X
X has a medical condition and developmental delay. She was diagnosed with the condition in 2020.
X currently sees the following specialists and allied health professionals:
(a)Medical professional, Dr L - every 3 to 6 months
(b)Medical professional, Dr M - annually
(c)Medical professional, Dr N – biannually
(d)Allied health professional - weekly
(e)Allied health professional - fortnightly on Mondays
(f)Therapy, Ms O - weekly on Saturday
(g)Lessons with Ms P - fortnightly on Mondays
(h)Psychology - weekly on Mondays
(i)Physical activity - weekly on Saturdays
(j)Allied health professional - quarterly each school holidays
(k)Ms Q NDIS/NDIA Coordinator
(l)Allied Health professionals, R Clinic
(m)Medical professional, Dr S
X is currently on the waitlist to see another medical professional who specialises in diagnosing and treating certain medical conditions, arising from some further health issues.
Both parents say that X is making good progress as a result of the therapies she is engaged in. It is not clear that X will ever be able to live independently. It is likely that she will require lifelong support.
The mother has been X’s primary carer. The mother has had sole parental responsibility for making decisions about X’s medical care since interim orders were made on 14 March 2023. She takes X to most of her appointments and has been primarily responsible for ensuring X’s day to day and long-term medical needs are met. She also manages X’s NDIS funding, which is around $50,000 per annum and covers most of her medical treatment.
The father has remained in contact with her therapists and allied health professionals. He gave evidence that he reviews all reports about X and discusses her treatment and progress with her treaters. I accept his evidence about this.

X requires medication to be administered to her. The parents have received training in how this is done, and the father was administering this from September 2023 when X commenced overnight time with him.
The mother was critical that the father did not initially accept X’s diagnosis (and by implication did not support her treatment) and for his lack of involvement in several aspects of X’s life since separation. For example, she complained that he has only attended one of the therapies each week and three other appointments with the allied health professional and psychologist.
The father’s evidence was that he researched X’s condition and worked with the mother to assemble a team of medical and allied health professionals to provide therapy and treatment for X. I concluded that the mother was highly critical of the role played by the father and downplayed his involvement in X’s care and treatment.
X’s interactions with each of her parents, as observed by the Single Expert, indicate that she has a close and loving relationship with each of them.
Whilst the mother deposed some concerns she had about X’s level of comfort when in the care of her father, particularly for extended periods, there was no evidence to suggest that X is uncomfortable in the care of the father or that his care for her is inadequate.
It is observed that this case does not turn on which parent has a better or closer relationship with X. She is fortunate to be close to both of her parents. However, in light of the mother’s relocation proposal, her willingness to facilitate the father’s relationship with X is of some significance.
The father argued that the mother has actively sought to reduce his time with X. Some examples included that:
(a)He was initially seeing X on several occasions each week for a period of four months when the mother (in August 2021) changed this to a weekly visit.
(b)In early 2022, the mother proposed that she travel to the USA to attend a wedding. The father asked to accompany the mother and X on the same departing flight. The mother went alone, leaving X in the care of her family day care teacher and her babysitters.
(c)He complained that in 2023 the mother moved to Suburb T, a suburb not in the vicinity of the father’s residence.
In his evidence the father ultimately conceded that the mother always facilitated him spending time with X, and his greater concern was the amount of time she allowed him.
While the father was critical of the mother placing X in the care of her family day care teacher and babysitters to attend a wedding, it arose because the father had not consented to the mother leaving Australia with X either. While he visited X in the mother’s absence, he did not propose that X remain in his care during this period.
I was also left to conclude that the mother’s move to Suburb T was the result of her financial position and the difficulties she experienced locating suitable accommodation as a single parent with a disabled child.
There was insufficient evidence to satisfy me that the mother had set out on a course of conduct that minimised the father’s involvement in X’s life. For example, text messages tendered by the mother corroborated the mother’s account that she had communicated quite freely with the father in 2021 and 2022 to plan for him to spend time with X. There was also evidence that despite the mother’s offers to the father to spend time and provide support for X, the father at times declined to do so or delayed it.
X’S PARENTS
The mother was born with a disability. Her condition will continue to deteriorate. She has a plan under the NDIS which supports her.
The father is 64 years old, and X is his only child. Whilst working full-time, it is likely that he will retire in the foreseeable future.
The mother raised concerns about the father’s capacity to care for X, especially on an overnight basis. The father says he recognises the risks that arise from X’s medical condition and has addressed those risks in the following ways:
(a)Risk of a medical emergency: He lives near V Hospital and has access to a car for emergencies. He is also volunteering at the hospital’s children’s ward so he can learn more about managing potential risks with children.
(b)He has been trained to administer X’s medication.
(c)He is confident that he can manage X’s anxiety and changes to her routine because he has been spending time with X alone consistently since 1 April 2021. He says that he understands how to calm her down, and that he has completed courses on how to adapt to her changing needs.
(d)He has regularly been spending time with X since separation. Since March 2023 this has included overnight time. It would appear that no concerns have been expressed about the father’s care of X. X enjoys spending time in her father’s company.
(e)He has completed several parenting courses to improve his capacity to parent X.
The mother argues that the father’s conduct during the relationship and post separation has created or contributed to what could be described as an unsafe environment for X in Australia, including instability in securing stable housing, social isolation and a lack of support for the mother. She complained of being in a position of financial strain since separation. She had turned to a social support service in circumstances where the father in 2021 was receiving the family tax benefit and rent assistance from Centrelink.
Particular focus during the hearing was given to the father’s financial dealings and financial support for X. Counsel for the mother contended that the father’s assertion that he is committed to providing financial support for X should not be accepted.
The evidence also suggested that the father has made financial decisions that may have been favourable for him but that have disadvantaged X. For example, he ceased work at around the time of separation later advising the mother that he had retired. He resumed employment after the parties had signed consent orders to adjust their interests in property.
Until June 2021 he paid private health insurance for X but then stopped her coverage, notwithstanding her complex health issues. His actions were in response to receiving advice that the mother had applied for a child support assessment.
He also deposed that “[s]ince the middle of 2021, I have been paying child support … in accordance with the assessed amount by Services Australia” (Father’s affidavit filed 10 April 2024, paragraph 62). However, material tendered indicated that he did not commence paying child support until late 2021 and that he has sought to reduce his child support payments through administrative review processes.
He deposed in his affidavit filed on 24 April 2024 that he resumed employment in order to support X and spend more time with her. Yet only a few weeks earlier he applied to the Child Support Agency to reduce his child support assessment in response to the mother’s application to change the assessment.
In mid-2023, he was assessed to pay child support of $41 per month and this remains the current assessment. This was based on his taxable income from 2022/2023 when he was not in employment. His contract of employment dated early 2023 reflects a significantly higher base income of $120,000 per annum. I was left to conclude that the father has actively minimised his income for the purposes of the child support assessment process.
In his affidavit he said: “I am willing to help with long-term medical expenses for [X] if we are equally responsible for her” (Father’s affidavit filed 10 April 2024, paragraph 63). This tends to imply that his support for X is conditional upon where she lives or how much time he spends with her.
The mother identified in her affidavit, that between May 2020 and January 2024 she paid out of pocket expenses of $4,527.66. On 3 May 2024, the father paid the mother the sum of $2,513 as a 50 per cent contribution towards these costs, a payment he described as “child support” on his bank records. This was explored at final hearing. The father argued at the trial that he was prepared to contribute towards X’s medical expenses and had not done so previously because he was unaware of them until reading the mother’s affidavit. I formed the view that the father should have had an awareness that the mother was meeting some of X’s medical expenses from her own funds. While I accept that the father might have been unaware of many of these costs, there was no evidence before the Court to satisfy me that he had ever tried to contribute towards them or even shown an interest in how he might do so. I viewed this payment as being opportunistic and therefore cannot be satisfied that it reflects an ongoing intention to equally share with the mother X’s medical costs on an ongoing basis.
The mother said that the father’s conduct and attitude impacts upon her emotional and psychological wellbeing and her capacity to engage with the father. The mother gave evidence about the erosion of her confidence during the relationship and after separation, and the difficulty she experiences in her dealings with the father.
The mother deposed that she has been engaged with a range of mental health services since X’s birth. She cites the causes for this as her relationship with the father and dealing with X’s high needs. Her treatment has included:
(a)In mid-2020, 10 sessions with a counsellor at U Clinic.
(b)In 2022, five sessions with a counsellor through V Hospital.
(c)From early 2022 to late 2022, 14 sessions at W Clinic.
(d)From late 2022 to mid-2023, 22 sessions with a counsellor at Y Clinic.
(e)Since late 2023 she has attended 10 sessions with a counsellor every fortnight. In mid-2023 she disclosed to her counsellor that she was having thoughts of self-harm. Since early 2024 she has been prescribed medication daily.
HISTORY OF FAMILY VIOLENCE
Section 60CG of the Act requires the Court, when considering what parenting order to make, to ensure that any orders made do not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
In this case, the mother contends that there is a history of family violence perpetrated by the father which included incidents of physical and sexual violence, verbal abuse, controlling and coercive behaviour particularly regarding financial matters.
I am required, when assessing safety, to consider a past history of family violence and any family violence orders made. The father was the subject of a previous Apprehended Domestic Violence Order made for the protection of his previous partner.
The mother deposed that the father made insulting remarks to her about her physical appearance and intelligence. The father denied that he has been verbally abusive towards the mother. He said that they both argued and raised their voices on occasion.
The mother deposed that she suffered from financial abuse because the father controlled how she would access funds and spend money. The father denied this, arguing that the mother had her own bank account throughout the relationship where her income from her business was deposited which he never accessed.
The mother deposed that in 2015 during an argument the father hit her with an object. This is denied by the father.
The mother deposed that in early 2020, during an argument over a two-hour period, the father pushed her causing her to fall and then physically restrained her from leaving the house with X. This is denied by the father.
In late 2020 during an altercation, the mother alleged that the father spat on her and pushed her whilst she was holding X. The mother alleged that they separated on this date and thereafter lived separately under the one roof. The father denied the mother’s version of this.
The mother deposed that the father touched her sexually and without her consent in 2021. This allegation is denied by the father.
Conclusions
The mother tendered notes from V Hospital taken by the social worker in 2019 alluding to family violence being of concern. The letter written on the mother’s behalf by BB Support Service in 2021, alleged financial control by the father towards the mother but did not contain allegations of other forms of family violence.
Of the incident in early 2020, counsel for the father argued that whatever took place, the mother later allowed the father to drive her and X to a cultural event, perhaps indicating a lack of fear on the part of the mother.
I was left unable to make a positive finding that family violence was a feature of the relationship. Rather I was left with an impression that the conflict was situational, regarding issues about which the parties disagreed.
There was insufficient evidence for me to conclude that the father subjected the mother to coercive controlling behaviours, especially financial abuse. The father’s demeanour in the witness box was observed to be calm and polite but he tended to provide long answers and with intensity. This was consistent with his own evidence that “[l]istening has always been a struggle for me”. He appeared to be a dominating figure. He expressed an awareness that at times he has difficulty managing his emotions. For example:
I am aware of some of my ‘negative’ traits that I need to work on, which include being impatient, anxious, over-thinking, overly sensitive, overly talkative, overly confident, defensive, demanding, pushy, sometimes accidently hurting people’s feelings, focusing too much about finances and thinking I am always right. To help recognise and rectify these traits I consciously try to address them in situations before they negatively affect people.
(Father’s affidavit filed 10 April 2024, paragraph 113)
He said he is working with a psychologist and provided evidence that he had attended once post separation in 2021 but could not recall the details. He gave evidence that more recently he saw a psychologist on two occasions in 2024 and had no further appointments booked. No report was provided on the nature of the therapy or his commitment to the process. Following cross-examination, I formed the view that his engagement with a psychologist arose from his desire to improve the strength of his application before the Court. I cannot be satisfied that it reflects an ongoing intention on his part to change the manner in which he interacts with the mother.
The mother said that as a result of his past conduct towards her (such as what the father has described), she finds it difficult to communicate with him other than in writing because she finds him both intimidating and uncomfortable to be around.
I accept that this is a reasonable reaction for the mother to have to her dealings with the father and that it is unlikely to change in the foreseeable future. This is one of the reasons why I have determined that a cooperative parenting relationship in the future is not currently foreseeable.
I observe that neither party alleged that X was at an unacceptable risk in each other’s care. By the time of the hearing, it was conceded that the communication and co-operation between the parties had considerably improved with the mother proposing that X spend unsupervised overnight time in the father’s care each alternate weekend if she were not permitted to relocate to the USA.
Apart from their inability to develop a cooperative parenting relationship, I am satisfied that both parents have good capacity to meet X’s needs and that she will not be subjected or exposed to any risk of physical harm, neglect, abuse or other harm in the care of either parent.
SHOULD X BE PERMITTED TO RELOCATE TO THE USA?
The authorities establish that the child’s best interests, whilst a consideration in a relocation case, is not the sole consideration (A & A: Relocation Approach (2000) FLC 93-035; Morgan & Miles).
Therefore, it is now necessary to balance and weigh X’s best interests with the right of the mother’s freedom of movement.
It is necessary to capture why the mother wishes to relocate and why the father is opposed to such a relocation.
The mother’s proposal if she is permitted to relocate to the USA
The mother proposed that:
(a)She would live with X in her mother’s home in City B, State D.
(b)X would attend a local elementary school through which she would access therapeutic support.
(c)The mother expects to register X for a range of State D medical benefits as well as arrange medical insurance coverage.
(d)There was some uncertainty about her proposed departure date. She will leave within a few months of orders being made. This is because X will start school in 2025. The USA school year commences in around August/September 2025. X would need to relocate to the USA well before then in order to establish a network of doctors and treaters and obtain an Individualised Education Program (IEP) to ensure appropriate educational supports are put in place. If she remained in Australia beyond February 2025 there may be a requirement that she commence school here. The mother does however depose that she has engaged the services of a consultant, Ms Z, who has provided her with advice about services available in the USA. She proposed that if the relocation is permitted, Ms Z would assist her in setting up X's medical providers and therapies prior to relocating to ensure there is a seamless transition and that X does not go without her regular therapies for an extended period of time.
(e)Once X has settled in the USA and all necessary supports have been put in place, she intends to return to work as an educator.
(f)The father will spend time with X for an extended period once each year, alternating between Australia and the USA. She also proposed additional time if the father visits the USA.
The father said that he intends to visit X in the USA annually but proposes an order that would allow him annually to spend up to four weeks with X on up to two occasions. He does not have family in City B. His family are in the City EE area. The orders he proposed do not confine him to remaining in City B when he spends time with X in the USA.
The mother argued that I should not discount the ability of the father to move to the USA if she does. She contended that his relatives remain living in the USA. He has maintained his citizenship and travels there frequently. In Australia, he does not own property, has not re-partnered and intends to retire shortly. The father said that he is unwilling to do so and has ruled out the possibility of relocating. He considers Australia his chosen place of residence.
It has been observed that “it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined” (U v U at [175]).
I find it unlikely that the father will relocate back to the USA. I was satisfied that the father is able to travel regularly to the USA and will do so. I am also satisfied that he has some supports available to him when he is there, although they are some distance from the mother’s proposed residence.
The father’s proposal if X remains in Australia
If X remains living in Australia with her mother:
(a)The mother and X will remain living in Sydney. The father will continue to live in shared accommodation at Suburb H but ultimately proposes finding rental accommodation in the same area that he is living, but that it will better accommodate X and her needs.
(b)It is agreed that X will commence at either FF School or GG School in February 2025, a school close to the mother and X’s residence in Suburb G. It appears that the school she attends is dependent upon her residential location and the ability of the school to meet X’s special needs.
(c)The father would like to extend the time X spends in his care including on alternate weekends, mid-week and half of all school holiday periods. The mother accepted that an incremental increase is also in X’s best interests if she were to remain in Australia. They just do not agree on the progression of this. The father also proposed that he will continue to take X to regular activities.

The mother seeks an order for sole parental responsibility for long-term decisions about X, whether she remains in Australia or not.
The advantages if X is permitted to relocate
The mother argued that she will receive much better support for herself and her care of X in the USA. This support, she said, will positively impact on a number of significant areas of her life including ensuring more stable housing, more frequent familial contact and support, improved employment prospects, and her personal happiness. All of this she argued leads to much better financial security and will enhance her parenting capacity.
Employment
The mother argued that her employment prospects are limited in Australia. Her qualifications are better recognised in the USA. She has the primary care of X with little back-up or support. She argued that she will have a greater opportunity to seek employment because family members (namely her mother) will be available to assist in X’s care.
Familial contact and support
The mother submitted that X would benefit from growing up amongst an extended family network from both maternal and paternal sides.
She said this is of critical importance for X due to her medical condition. While there is no current prognosis about her ability to function independently in future years, it is likely that X will require day to day support and care for the rest of her life. The father is currently 64 years of age. It was argued that his capacity to provide the care and support that X requires in later life is likely to diminish. Neither party has any extended family in Australia, indeed they all reside in the USA. Neither party was able to identify other people who they were close to and could rely upon for back-up and support with X’s care, noting that while the father stated that two individuals had signed enduring powers of attorney, none of these individuals were named or swore affidavits.
The mother’s disability
The mother has a disability and her condition will continue to deteriorate.
Mental health
The mother said that her circumstances in Australia have caused her to be anxious and depressed. She reported an episode of considering self-harm in 2023. She contended that her mental health would improve if she were living in the USA and hence her parenting capacity would be enhanced.
Stability
The mother remains in a financially precarious position and has experienced insecurity in her housing. The mother is concerned that her unstable housing and limited employment prospects will remain if she and X live in Australia.
The mother argued that her relocation with X to the USA will provide her with the physical and financial security to ensure X has a stable living environment. She remained concerned about the father's ability to provide any meaningful ongoing financial support for X.
The disadvantages if X is permitted to relocate
The father argued that the mother’s proposal to relocate to the USA with X brings with it a range of disadvantages for X.
X will not receive the same level of health care in the USA
The father raised a concern that there is no evidence that can satisfy the Court that X will receive the same level of health care and support in the USA. He contended that she has access to a universal health care scheme in Australia and is supported by NDIS funding. He said that the mother would be required to pay costly insurance and would not have access to low-cost medication for X. He is most concerned that a relocation will remove X from a well-established network of support that the parents have worked hard to establish in Australia. This sentiment was adopted by the Single Expert although I have determined that the evidence she gave about this was beyond her expertise.
There will be a negative impact on X’s relationship with her father
The father contended that X’s relocation to the USA would result in a deterioration in their relationship. He is especially concerned that her developmental delay will impact on her ability to comprehend the loss of her relationship with her father and indeed she would have no understanding that her father lives in another country and they will only see each other (on the mother’s proposal) on very limited occasions. Even planning for X to spend time with the father would involve significant difficulties in circumstances where she is only able to be told of plans on the day they are occurring because she has little concept of time.
The mother will not encourage a relationship between the father and X if the relocation is permitted
The father argued that the Court should accept that if the mother were permitted to relocate, X would lose her current relationship with him, would be limited to screen time and visits on mostly one occasion each year. He argued that the mother will:
(a)be dismissive of his capacity and willingness to care for X;
(b)act to minimise his role in X’s life;
(c)seek to control X’s time with him and the manner in which X spends that time with him; and
(d)will not facilitate and encourage a relationship between him and X.
Australia offers a better quality of life for X
The father argued that Australia offers X a better quality of life than what she would experience in the USA. In support of this proposition, he offered that X has always lived in Australia, he and the mother have lived in Australia for 26 and 17 years respectively and both chose to have a child and raise her in Australia.
The only evidence offered in support of this proposition was from the Single Expert who appeared to accept the father’s assertion. For the reasons already set out, I am disinclined to place any weight on the evidence she gave on this matter as it was a conclusion she made devoid of professional qualification or training.
Before analysing these assertions, it is important to also capture the benefits and detriments involved for X. Some of these are naturally incorporated in the analysis above. But to be sure, some other advantages and disadvantages for X were identified should the relocation not occur.
The advantages if X is not permitted to relocate
If X remains living in Australia, both parties will be able to maintain a meaningful relationship with her. Importantly, it allows much more physical contact with the father. This is relevant because the evidence before the Court suggested that X is a person who communicated through touch and displays of affection.
Most of X’s health, medical and educational needs would be met and supported in Australia via Medicare and the NDIS. There would remain a continuity of her current treatment and support.
The disadvantages if X is not permitted to relocate
X and the mother will likely continue to live some distance from the father which is not as conducive to a co-parenting relationship.
The mother and X will continue to live with some insecurity in terms of their accommodation and financial security.
The mother’s parental capacity will remain affected by her poor mental health.
ANALYSIS
The father argued that the Court must be cautious about accepting that the mother’s life in City B will be as positive and supportive as she presents it to be.
At various times he complained that:
(a)The mother over-states the support she will receive from her extended family. For example, he alleged to the Single Expert that the mother’s relative “has his own family and lives about 50 km away”. Furthermore, the mother’s assertions about long-term family support for X in the USA are entirely speculative.
(b)The mother proposes to live with the maternal grandmother. The father complained to the Single Expert that the maternal grandmother “is a […], and the home is [too small]”.
(c)The maternal grandmother is not physically capable of caring for X and this means that the mother will have no greater opportunity to seek employment in the USA. Indeed, she may find re-entry to the workforce in the USA difficult as she has not worked there for the last 20 years.
The maternal grandmother gave evidence. She is 75 years old. She clearly enjoys a close and loving relationship with both the mother and X. She visits them in Australia on a regular basis often for extended periods of time.
The maternal grandmother confirmed that she would initially house the mother and X rent free. The accommodation seemed suitable for X. There was no evidence to support the father's allegation that the home is too small. The maternal grandmother owns another property, which is currently rented. She suggested that once X was settled, her supports were in place, and her mother was employed, renting the property might be an option for them.
She deposed to being familiar with the State D health system, having raised the mother who is disabled. She also has education training.
She confirmed that she has health issues. She still drives. Notwithstanding her health issues, she has been caring for X’s relative one day a week from around 10.30 am to 6.30 pm since he was an infant. From time to time, she also cares for another relative. She deposed enjoying a very close relationship with her son and his family who live in the vicinity. She would like to ensure that X gets the opportunity to regularly spend time with her extended family.
The Single Expert repeated the father’s assertions that the maternal grandmother was limited in her ability to provide practical support due to her age and health. I place limited weight on this as she did not speak to her nor read her affidavit.
Ultimately, there was no evidence to support the father’s assertions that the maternal grandmother would be unable to care for X or had unsuitable accommodation to house her in.
Nor did any of the evidence she gave support the father’s suggestion that the support for the mother in City B would be limited to the maternal grandmother. She corroborated the picture painted by the mother of a supportive family who had X’s best interests at the forefront of their minds.
The mother argued that if the Court accepted that X would have close family relationships and support in the USA, I should be confident that a relocation there would enable the development of familial bonds that X could rely upon in the future, even when neither the mother nor father would be available to support her. She asserted that these bonds were unlikely to develop if X grew up in Australia.
In response, the father argued that this assertion was premised on X's maternal family one day assuming a caring role for her. He observed that the mother had failed to call any evidence from her relative or any other person who was or would be ready, willing, and able to take on this role.
While I accept that there is no evidence upon which I could make a finding on this, I also observe that the father told the Single Expert that X has two guardians in Australia, along with his relative in City EE, who were willing to step in if he and the mother passed away. He stated that two had signed enduring powers of attorney. However, none of these individuals provided affidavits.
I did not find this argument persuasive. Both parties have extended family in the USA. In the event that X is permitted to relocate, I am satisfied that X would become more acquainted with family members from both sides of her family. In the event that both parents are unable to care for or support X in the future, due to her familial connections, there appears to be more opportunity for her to secure longer term future support in the USA, as perhaps compared to institutional care in Australia.
The mother asked the Court to conclude that overall, her financial position and security will improve in the USA. I accept the mother’s evidence about the difficulties she has experienced in obtaining suitable accommodation in Sydney in circumstances where she has a disability and the care of a child with a medical condition. I am also satisfied that she will be in a position to obtain secure, long-term housing with her mother in City B.
While the father raised valid concerns about the age of the maternal grandmother and her long-term capacity to provide support to the mother and X, I am satisfied that she is willing and capable of doing so in the short term at least. That support, combined with the proximity of the mother's relative, would provide the mother with greater support than she appears to have in Australia. With greater support, she will be in a position to leave X in the care of trusted people at short notice and call on her family to assist with day-to-day matters such as emergency pickups from school or childcare. This would allow the mother to more often attend to more mundane life matters alone, such as attending a doctor for her own medical needs, attending a gym, or going to the shops. Due to her current arrangements, she must take her disabled child with her everywhere unless she either ensures the appointment is made during the father's fairly limited time with X or she has first arranged for a support worker to be in attendance. While I do not discount the father's desire to play that role, there was no evidence before me that supported the proposition that either he would reduce his work hours, move to live in closer proximity to the mother, or take other steps that would allow him to be more available to assist when and if needed by the mother. Even if he did so, I am not satisfied that the mother will ever have the confidence and trust to ask him to do so.
I was asked to accept that the mother is supported in Australia by way of social security, child support and NDIS funding, and that I cannot be as certain that she will receive such financial support in the USA. I accept that the mother has what might be described as a “safety net” in Australia. However, her financial position was precarious, especially because she cannot rely upon an income stream from full-time employment or a fixed and regular child support payment. She gave evidence that even to obtain suitable rental accommodation in Australia she had to propose that her mother in the USA act as a financial guarantor.
I was also asked to accept that the mother would have access to more employment opportunities in the USA. There was insufficient evidence to allow any conclusions about this.
I am not satisfied about the father’s ongoing commitment to provide financial support for X by way of child support and/or by making contributions towards her other expenses. The amount of child support he pays is minimal and it is likely to remain so given his intention to retire in the foreseeable future. I expect that if a relocation is permitted, the father will focus on ensuring that whatever money he has available is allocated to the costs associated with spending time with X. I make no criticism of this.
The mother, if she continues to live in Australia, remains in a financially precarious position. She cannot rely upon regular financial support from the father. Due to her own disability and carer responsibilities, she is not assured of returning to the workforce on a full-time basis. On the other hand, I am satisfied that there is a better safety net available to the mother in the USA whilst she lives with her mother and can access services.
The mother’s evidence that since 2019 she has attended upon a range of mental health practitioners, was not challenged. However, the mother did not put before the Court any evidence from those treaters as to either a diagnosis or treatment plan. She agreed with the proposition that she was not forthcoming about her mental health.
A mental health diagnosis or treatment plan would have better supported the mother’s case. There was no evidence that would permit a finding to be made that the mother’s parental capacity has been affected by her mental health diagnosis and/or that her prognosis for recovery is better if she were to live in the USA. But even without that evidence, I have concluded that the mother would likely be a happier person with a better sense of wellbeing living in the USA because:
(a)She would have the ability to leave X alone in the care of family when she needs to attend to unexpected, unplanned or impromptu issues.
(b)She would be confident that her housing is secure, and that she has a further safety net offered by her familial support.
Should the mother remain in Australia there is a risk that she will continue to experience poor mental health and wellbeing due to her isolation. Whilst I consider her parenting will still be adequate, X will lose out on the opportunity to be parented by her best self.
One of the most critical issues for X is the level of educational, medical and financial support she would receive living in the USA.
The father’s concerns were articulated earlier.
From the outset it is observed that it is difficult to determine exactly what services X will be eligible for because she needs to be assessed in the USA and provided with an Individualised Education Program which would to determine her eligibility for some therapies.
The mother deposed that X has a social security number in the USA. When she visited the USA in 2019, she received medical treatment in the USA. In State D X might be eligible for a healthcare insurance program for low-income individuals or those with a disability. The mother also offered that X may qualify for another scheme. Her enquiries also suggested that X may be eligible for in-home support and that the mother may qualify for financial benefits as her carer.
The mother also deposed that she and X are eligible to receive health insurance through another insurance provider.
X’s eligibility for insurance and universal health coverage in the USA was tested in evidence. Her eligibility for these services is also uncertain.
Understandably, this leads the father to question whether these schemes would provide X with the same level of care that she currently receives.
The Court had the benefit of evidence from an expert witness Dr J. She works in the field relating to X’s medical condition. She gave evidence about the medical services available in State D and what treatment and supports are available in the USA for people diagnosed with X’s condition.
She outlined available programs and treatment options for X in State D. There are several suitable options for her multispecialty care, but they are a distance from City B. For example, CC Clinic, is located in City DD, State D (approximately a 2 hour drive from City B). It is the only dedicated program in State D that provides comprehensive care for children, adolescents, and adults with X’s medical condition.
Whilst the centre would be some distance from X, Dr J’s evidence was there are different treatment models available including the most common model, which sees a partnership or collaboration between a local team of therapeutic providers, the family and this service.
During cross-examination, counsel for the father asked Dr J what she might expect the cost of care at CC Clinic would be. Dr J answered that she did not know details about the cost of care but that “the large majority of individuals with [X’s medical condition], if not all, are amenable to […] insurance in [State D], and the coverage for this is quite good” (Transcript 9 May 2024, p.147 lines 28-30).
She further gave evidence that “[this insurance scheme] may serve an underserved population. [The insurance scheme] should serve the population – and, in general, for children, it would apply for individuals with complexity. They would naturally get this insurance, which [X] would qualify for” (Transcript 9 May 2024, p.152 lines 43-46). She was of the view that it would be uncommon to find a doctor or health professionals who would not accept patients under this scheme.
Dr J’s evidence satisfies me of the existence of suitable services to treat X’s medical condition. Her evidence was consistent with the evidence of the mother (including from her enquires and dealings with Ms Z).
There is no doubt that X receives excellent treatment for her condition in Australia from a range of treaters. I am also satisfied that there are obvious strengths in X remaining in the continuity of their care, especially when the NDIS program means that there is little financial impact on the mother.

But I am also satisfied that X will receive adequate treatment in the USA and that her medical and educational needs will be appropriately assessed, planned for, and funded.
Perhaps an important short-term detriment for X will be the consequences of severing or disrupting her treatment network in Australia and the delay that might be experienced whilst a new network is established. Dr J spoke of a recent case where she saw much put in place for a client in a three-month period. However, it is more difficult to assess the impact on X of severing her contact and ties with the vast network of treaters that the parties have built and put in place.
The father argued that the Court should not order the relocation in circumstances where the mother is likely to minimise the father’s relationship with X. He sees the real risk as what he describes as the mother’s “gatekeeping” of X’s relationship with him. I have already made a finding that there was insufficient evidence to satisfy me that the mother has deliberately acted to minimise the father’s involvement in X’s life.
Beyond this, the father is concerned about the impact that a relocation would have on his relationship with X. The Court heard evidence about X’s sensory needs for physical touch. This sensory experience would not be possible with communication through other electronic mediums. The maternal grandmother was asked about her experiences of communicating with X via electronic mediums. She confirmed that X was easily distracted and had a short attention span. However, despite these challenges they appear to communicate on a regular basis and maintain a close and affectionate relationship.
Obviously if I order X to remain in Australia, she will benefit from the current strength of her relationship with the father. He will be physically present in her life both for significant events and also the mundanity of daily life.
The mother’s proposal ensures that X will continue to enjoy a relationship with her father. I remain confident that the mother would facilitate the time she proposes the father spending with X.
Under both proposals before the Court, I am satisfied that X will be able to benefit from relationships with both her parents. But obviously the amount of time which X will be able to spend with the father will be substantially reduced if the mother is permitted to relocate. I accept that this will impact on X’s relationship with her father.
CONCLUSIONS
Both proposals have advantages and disadvantages that have been identified earlier in these reasons. Relocation cases are inherently difficult because ultimately one party will feel aggrieved by the decision and feel that some of their fundamental rights are compromised. This is certainly the situation here for X’s parents.
In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence (AMS v AIF; U v U). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration (U v U at [89]).
X has received excellent, low cost medical and therapeutic treatment in Australia during her short life. She will continue to do so should she remain in Australia.
It is not however the task of the Court to engage in a comparison of the American and Australian health systems or determine which is the better country to live in. Whilst there is some uncertainty about exactly what entitlements X and the mother will receive, and how long it will take to put them in place, I am satisfied that there are appropriate services available in the USA to meet X’s needs and that they are accessible both in terms of location and X’s eligibility for them.
Whilst I remain concerned about the impact on X of disrupting her current well-established network of treaters, I am satisfied that the mother will take the necessary steps to ensure that X receives the intervention she needs in the USA.
To date the mother has been responsive to all of X's needs and has ensured that they are attended to appropriately. I am confident that she will continue doing so within either the American or Australian systems.
If I permit the mother to live with X in the USA, she will receive greater day to day support personally and in her capacity as a parent by her immediate family. I am confident that she will be happier with the security that she can draw upon through the resources offered by the maternal grandmother. This is likely to result in the mother’s enhanced wellbeing. Given that ability on the part of the mother to respond to and provide for X's needs, the most crucial aspect of X's best interests is to ensure that the mother herself is adequately supported and is able to continue carrying on that function throughout X's life. I am not as confident about her ability to do so should she remain living in Australia.
However, this must be weighed against the impact on the relationship between X and her father. A move to the USA would mean that X will lose the regular and frequent physical presence of the father in her life. I have concluded that the benefits that the mother will attain from her improved wellbeing and increased support and security outweighs the detriment that arises from X spending a greatly reduced amount of time with her father. I am satisfied that the father loves and cares for X and will take advantage of all orders made that allow him to spend time with X both in Australia and the USA.
I will therefore allow the mother to relocate to the USA with X in a timeframe of her choosing. I will however limit the relocation to City B, State D as her proposals were premised on this outcome. She will be formally restrained from moving X’s residence outside of State D without the father’s agreement.
WHAT ORDERS ARE IN X’S BEST INTERESTS?
Parental Responsibility
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interests of the child as the paramount consideration.
Should a parenting order deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child, then provision can be made for joint or sole decision-making in relation to all or specified major long-term issues (s 61D(3) of the Act).
As set out in s 61DAA of the Act, the effect of making an order providing for joint decision-making on major long-term issues is that each party is required to consult each other in relation to such a decision and to make a genuine effort to come to a joint decision.
The father says that if the mother were permitted to relocate, he does not concede that sole decision-making must follow. He seeks an order for joint decision-making.
Whilst there has been parental conflict both leading up to and following separation, both parties acknowledge that their communication in the last 12 months has improved. The father argued that in the absence of any emergency, the parties would still be able to communicate, liaise and agree upon a whole range of matters including non-urgent health, education, allied treatment, culture and religion.
I accept that the mother finds it difficult to communicate with the father other than in writing because she finds him both intimidating and uncomfortable to be around. I have determined that whilst there has been an improvement in their communication, a cooperative parenting relationship in the future is not currently foreseeable.
Finally, I am concerned that the distance between them, and their current communication difficulties impacts upon their ability to reach informed and timely decisions, especially about X’s health and education.
For these reasons, the mother will continue to exercise sole decision-making authority for major long-term decisions about X’s health and education.
I will also make orders that the mother consult with the father and seek his views prior to making any final decision. This will ensure that the father is aware of the decisions that need to be made, can make his own enquiries about those matters and then express a view about them.
In so far as other major long-term issues such as X’s religious and cultural upbringing, and name changes, decision-making about these matters should be joint. There is nothing to warrant sole decision-making responsibility being vested in one parent alone.
Spend time with orders
Until X departs from Australia, the father’s time with her should be extended so that he spends time with her each alternate Saturday from 10.30 am through to 6.00 pm on Sunday.
Once the relocation has taken place the mother proposed orders that provide for the father to spend time with X in a staggered and graduated fashion, alternating between the USA and Australia. In addition, he will have the opportunity to travel to the USA and spend time with her there. These orders are in my view in X’s best interests.
One controversy between the parties is when the father’s time with X would increase to longer block periods. The mother was not prepared to propose the father’s time with X graduating beyond what she offered by 2028. That would mean that the father would not spend more than two consecutive nights with X (unless agreed otherwise). By contrast, the father proposed an incremental increase so that over a one-month period he would spend time with X:
(a)In weeks 1 and 2, for the first 4 nights and the 6^th night with the father and the remainder of the time in the mother's care.
(b)In weeks 3 and 4, for the first 5 nights and the 7^th night with the father, with the remainder of the time in the mother's care.
I appreciate the mother’s reluctance to commit to more time in the context of X’s medical condition. From the evidence of both Dr K and Dr J I observe that:
(a)X may continue to experience health issues at any time in her life.
(b)Whilst she has not yet encountered significant health issues, there is a concern that she will.
(c)X may struggle with mood disorders, anxiety and other mental health afflictions that may require ongoing therapy. She will experience difficulties fitting into social constructs. I note that in 2023, Dr L reported that X experienced separation anxiety from her mother and maternal grandmother.
(d)Her condition requires lifelong monitoring.
(e)X’s ability to communicate is made difficult because she has been assessed as having low cognitive functioning and she struggles with language comprehension. She is at risk of serious social difficulty.
I understand the father’s desire to “lock in” a longer progression of time. This would, I assume allow him to travel with X to stay with family in other parts of State D. The orders proposed by him would also overcome his concern about the mother “gatekeeping” his time with X. But I am afraid that what he has proposed may not be suitable for X in four years’ time due to the complexities that might arise from her medical condition. I was left satisfied that the mother had not developed her Minute of Order with the intent of limiting the father’s time with X, but rather she was focussed on X’s needs and medical condition. For these reasons, I will make the spend time with orders proposed by her.
The father suggested that the parties share the costs of X’s travel to Australia and that they are each responsible for their own travel costs. This has also been incorporated into the final orders to avoid future controversy.
Thankfully, the parties reached agreement on all other matters connected to the future parenting arrangements for X and those orders have been incorporated into the final minute and are made by consent.

I certify that the preceding one hundred and ninety-eight (198) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.
Associate:
Dated: 19 December 2024
Monday, Wednesday and Friday from 9.00 am to 3.00 pm; and

File number(s):	NCC 2366 of 2022
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	19 December 2024
Catchwords:	FAMILY LAW – CHILDREN – International relocation – Where mother seeks to relocate to United States with child who has a medical condition – Where child requires lifelong medical treatment and support – Where the mother has a disability – Where limited weight is placed on the Single Expert Report – Mother permitted to relocate with the child.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 60CG, 61CA, 61DAA
Cases cited:	A & A: Relocation Approach (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 Franklyn & Franklyn [2019] FamCAFC 256 Isles & Nelissen (2022) FLC 94-092 Morgan & Miles (2007) FLC 93-343 Oswald & Karrington (2016) FLC 93-726 Sayer & Radcliffe (2012) 48 Fam LR 298 U v U (2002) 211 CLR 238
Division:	Division 2 Family Law
Number of paragraphs:	198
Date of hearing:	7-10 May and 29 August 2024
Place:	Sydney
Counsel for the Applicant:	Mr Guterres
Solicitor for the Applicant:	Conditsis Lawyers
Counsel for the Respondent:	Mr Mathews
Solicitor for the Respondent:	Jones Hardy
Counsel for the Independent Children's Lawyer:	Ms Windsor
Solicitor for the Independent Children's Lawyer:	Ashby Family Solicitors

NCC 2366 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS VINOGRADOV Applicant
AND:	MR TRAVERSI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	19 DECEMBER 2024