Vrolijk & Beaulne - [2023] FedCFamC1F 416

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vrolijk & Beaulne [2023] FedCFamC1F 416

File number(s): ASC 5 of 2021

Judgment of: BERMAN J

Date of judgment: 24 May 2023

Catchwords:
FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – Where the mother lived in Country B until 2021 – Where the child was born in Country B – Where the mother has employment, housing and family support in Country B – Where the mother cannot work in Australia because of her visa – Where the mother cannot afford rental accommodation – Where the father has not financially assisted the mother – Where there is a significant disadvantage in not affording the mother the ability to relocate with the child – Consideration of whether the child could develop a meaningful relationship with the father if relocated – Consideration of the child’s young age – Orders providing for the father to establish a relationship with the child free of the condition of supervision prior to relocation permitted.

FAMILY LAW – CHILDREN – With whom a child spends time with – Where the mother alleges family violence and inappropriate sexualised behaviour by the father – Where the court finds that the mother’s evidence was not reliable and that the father does not present as a risk to the child – Whether the mother is able to support the child’s relationship with the father –Where the mother is opposed to the father spending any time with the child that is not supervised – Consideration of the extent to which a final order that a party’s time with a child should be the subject of long term supervision – Consideration of orders that would best maintain the child having a meaningful relationship with the father until the mother is permitted to relocate – Orders.

FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the parties have a demonstrably poor relationship – Where the parties are unable to communicate – Where equal shared parental responsibility would not be in the child’s best interest – Orders.

Legislation:
Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth), Division 12A, ss 60CA, 60B(1), 60B(2), 60CC, 60CC(2), 60CC(2)(A), 60CC(3), 61DA, 65DAA, 69ZT, 69ZT(3), 69ZN

Migration Act 1958 (Cth) s 114

Cases cited:
AMS v AIF [1999] 199 CLR 160

Baglio & Baglio [2013] FamCA 105

Beckham v Desprez [2015] 55 Fam LR 310

Blanding v Blanding [2016] 55 Fam LR 218

Champness & Hanson (2009) FLC 93-407

Cotton & Cotton (1983) FLC 91-330

Dennison & Wang [2010] FamCAFC 182

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

MRR v GR (2010) 240 CLR 461

Sigley v Evor (2011) 44 Fam LR 439

Starr & Duggan [2009] FamCAFC 115

St Claire & St Clair and Ors [2013] FamCA 108

Wang & Dennison (No 2) [2009] FamCA 1251

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 199

Date of hearing: 14, 15, 16 and 20 February 2023

Place: Adelaide via MS Teams

Counsel for the Applicant: Mr Lipert

Solicitor for the Applicant: Grays Legal NT

Counsel for the Respondent: Ms Heske

Solicitor for the Respondent: Kelly & Partners Lawyers
ORDERS

ASC 5 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VROLIJK

Applicant

AND:
MS BEAULNE

Respondent

order made by:

BERMAN J

DATE OF ORDER:

24 may 2023

THE COURT ORDERS THAT:
1.Ms Beaulne (“the mother”) have sole parental responsibility for X born 2020 (“the child”).
2.The child shall live with the mother.
3.The child be permitted to leave the Commonwealth of Australia on or after 1 July 2025, or at such earlier date if the mother receives notice of an intention to be deported and her application for an appropriate visa has been rejected following the exercise of ministerial discretion, and it is requested that the Australian Federal Police remove the name of the child from the Family Watch List in force at all points of arrival and departure in the Commonwealth of Australia on or after that date NOTING THAT for the purposes of these Orders, the mother is no longer permitted to remain in Australia despite her reasonable efforts if the mother:
(a)has sought a Protection Visa and is denied a Protection Visa at first instance; and
(b)has sought review of the decision by the Administrative Appeals Tribunal and is denied a Protection Visa; and
(c)has sought ministerial intervention that will enable her to remain in Australia and is denied such ministerial intervention.

4.Until the mother and child shall depart from the Commonwealth of Australia, the child shall spend time with Mr Vrolijk (“the father”) as follows:
(a)for a period of three (3) calendar months from the date of this order, every second Saturday or Sunday as may be elected by the father for a period of four (4) hours with such time to be unsupervised;
(b)for a further period of three (3) calendar months, each alternate weekend on Saturday and Sunday for a period of six (6) hours, unsupervised;
(c)for a period of six (6) calendar months, each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday, unsupervised; and
(d)thereafter, each alternate weekend from 4.00 pm Friday to 9.00 am on the following Monday.

5.All handovers shall occur at D Contact Centre or otherwise as may be agreed in writing between the parties.
6.The mother is permitted to relocate with the child to City C at her election but will provide the father with thirty (30) days’ notice of her intention to relocate and will provide the father details of the residence of the child and the mother’s contact details.
7.At times as may be agreed between the parties:
(a)the mother shall facilitate two (2) video calls between the father and the child per week each of up to fifteen (15) minutes duration while the child is three (3) years of age;
(b)the mother will facilitate two (2) video calls between the father and the child per week, each up to twenty five (25) minutes duration while the child is four (4) years of age or older; and
(c)The mother will facilitate three (3) video calls between the father and the child per week, each up to one (1) hour in duration while the child is eight (8) years of age or older.

8.Upon the child being relocated to Country B either on or after 1 July 2025, the father will spend two (2) blocks of thirty (30) consecutive days between the period 1 July and 30 June of each year in either Country B or in Australia.
9.If the father sends notice of his intention to spend time with the child in Australia then:
(a)the mother must apply for the relevant tourist visa for herself and the child at her own expense within one (1) month of receiving the father’s notice where a tourist visa is necessary prior to travelling;
(b)if the mother’s tourist visa application or the child’s application is rejected the mother must provide the father with correspondence verifying this from the relevant government authority as soon as is reasonably practicable; and
(c)if the mother’s tourist visa application or the child’s application is rejected the father may select a new destination to spend time with the child.

10.In relation to the first block of time, the mother must purchase air tickets including return flights for herself and the child not less than forty (40) days prior to the block of time and the mother is to provide the father with:
(a)a copy of return tickets for the child; and
(b)a copy of confirmed flight itinerary and proof of payment including return airfare for the child.

11.In relation to the second block to time, the father must purchase air tickets including return flights for the child not less than forty (40) days prior to the block of time and the father is to provide the mother with:
(a)a copy of return tickets for the child;
(b)a copy of the confirmed flight itinerary and proof of payment including return airfare for the child; and
(c)any other documentation necessary to enable the mother and child to board flights other than travel visas.

12.The father is to arrange and book the costs of accommodation for himself and the child if in Country B or if the time is taken in Australia noting that it is the responsibility of the mother to arrange, book and bear the costs of accommodation for herself and the child if she seeks to travel with the child.
13.Each party is to keep the other party advised of any changes to their respective email or phone contact details for the purpose of such communication.
14.The mother is to keep the father informed of any educational enrolments, religious ceremonies or major medical procedures related to the child.
15.The mother is to keep the father informed of any milestones or significant events in the child’s life.
16.Each party is hereby authorised to obtain from the child’s school, preschool or other educational facility all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activity to which the parents are invited, by video conference if possible and appropriate.
17.The mother authorise any medical practitioner, psychologist or other health care professional seen by the child to contact the father so as to provide him, at his expense, with any information about the child that he may seek.
18.In the event the mother is no longer permitted to remain in Australia the mother is permitted to relocate to Country B with the child as provided herein.

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

Mr Vrolijk (“the father”) and Ms Beaulne (“the mother”) are unable to reach agreement in respect of the future parenting arrangements for X born 2020 (“the child”).
The father seeks orders as set out in his Amended Initiating Application filed 15 November 2022 namely, that the parties have equal shared parental responsibility for the child and that the child live with the parties on a week about basis. In the event that the mother is unable to remain living in Australia, the father seeks that he have sole parental responsibility and for the child to live with him. The father also seeks an order that the child remain on the AFP Airport watch list.
By further Amended Response filed 31 January 2023, the mother seeks orders for sole parental responsibility and that she be permitted to change the child’s place of residence to Country B. The orders sought by the mother in relation to the time that the father spends with the child are both lengthy and complex in that the mother proposes that the father spend time with the child on two block occasions each year, and that the father either fly to Country B or in the alternative, the mother and child fly to an international location as set out in the further Amended Response. The mother’s proposal for the time spending between the father and the child is to be supervised by a professional nanny.
A more significant difficulty in the mother’s proposed Minute of Orders circulated on 14 February 2023, is the cost involved in effecting the father’s time with the child and the extent to which a final order that a party’s time with a child should be the subject of long term supervision. Insufficient evidence was presented to assist the Court in determining whether the mother or the father had sufficient funds to ensure that the orders could be effected on an ongoing and final basis, nor was there sufficient evidence in relation to how a professional nanny would be hired in each country that the mother proposes the father can elect for time spending to occur.
If the mother is unsuccessful in seeking orders that permit the child to relocate to Country B, then it is proposed that the father spend limited, supervised time with the child and that the father not be permitted to engage in activities where the child’s genital area is exposed.
The proceedings are made further complex by the mother’s current difficulty in obtaining a visa. During the relationship, the mother had commenced her application to obtain a Spousal Visa however, following the breakdown of the relationship, the mother was no longer able to pursue this application.
At present, the mother currently has a pending application for a Protection Visa which would enable her to remain in Australia. It is estimated that it may take a further four to twelve months before the initial decision regarding the application is determined. The mother’s immigration lawyer opines that the application will likely be rejected following which there will need to be a merits review appeal to the Administrative Appeals Tribunal and thereafter, an application to the Minister.
A condition of the mother’s current visa application is that she is not able to engage in paid employment. A primary factor for the mother and the child relocating to Country B is that the mother submits that in Country B, she will have access to full-time employment on her father’s property and the ability to reside in the maternal grandmother’s residence which is in close proximity to the property.
DOCUMENTS RELIED UPON
The father relies upon the following documents:-
(1)Amended Initiating Application filed 15 November 2022;
(2)Affidavit of Mr Vrolijk filed 19 January 2023; and
(3)Financial Statement filed 4 January 2023.
The mother relies upon the following documents:-
(1)Further Amended Response to Initiating Application filed 31 January 2023;
(2)Affidavit of Ms Beaulne filed 2 February 2023;
(3)Affidavit of Mr E filed 9 January 2023;
(4)Affidavit of Ms F filed 6 July 2022;
(5)Affidavit of Ms G filed 31 January 2023;
(6)Financial Statement filed 9 January 2023;
(7)Notice of Risk filed 2 February 2023; and
(8)Amended Minute of Order.
Both parties filed a Case Outline and a Summary of Argument that they sought to rely on. The Court was assisted by a Family Assessment Report dated 9 December 2022 prepared by Child Court Expert, Ms J.
BACKGROUND
The father was born in Australia in 1977 and is presently 46 years of age.
The mother was born in Country B in 1982 and is presently 40 years of age.
The mother moved to Australia with the child in early 2021, with the intention to relocate and reside with the father.
The father maintains employment on a casual basis as a labourer. Prior to the father’s present employment, the father was employed on a full-time basis as a public servant however, following an incident in the former matrimonial home, the father was charged and subsequently, his employment was terminated.
The mother is currently unemployed and is engaged in the full-time care of the child. Due to a restriction and condition of her current visa, the mother is unable to obtain employment. In Country B, prior to relocating, the mother maintained specialist employment and operated a business on her father’s property.
The father has a daughter from a previous relationship who is 13 years of age. The father’s daughter lives interstate and at present, the father spends no time with her.
The father is presently living and working in H Town, a remote community. The mother and the child reside in City K, roughly 400km away.
The child lives with the mother and in accordance with the Orders of 21 July 2022, the father spends time with the child for a period of two hours, every third week, at D Contact Centre in City K. The father also has FaceTime with the child during the first week of every month. The FaceTime communication is supervised by a Pastor from the mother’s church.
The parties met online in 2019 and commenced a long distance relationship in or about mid‑2019. The father travelled to visit the mother in Country B on two occasions in 2019. The first visit being in mid-2019 and the second visit in late 2019. During the father’s second visit, the parties decided to get married and in late 2019, the parties engaged in a religious marriage ceremony. The parties’ marriage was never formalised.
The father returned to Australia 10 days after the religious marriage ceremony. Shortly thereafter the mother discovered she was pregnant. The parties planned for the father to return to Country B for the birth of the child, however Covid-19 restrictions prevented the father’s travel.
The child was born in Country B in 2020.
In early 2021, the mother and child travelled from Country B to Australia with the intention to relocate and live with the father. The mother and child spent a period of 14 days in hotel quarantine in Brisbane following which they briefly spent some time with the paternal grandmother before returning to L Town with the father. The father had not met the child prior to the mother and child leaving their hotel quarantine in early 2021.
In approximately the following month, the parties reaccommodated to M Town, a remote community, about 250 km from City K, where the father was employed as a public servant.
The mother alleges that upon her arrival in Australia, the father subjected her and the child to family violence which ultimately led to the breakdown of the relationship and the police issuing the interim Domestic Violence Order (“DVO”) in mid-2021.
The mother alleged that in mid-2021, the father pointed a weapon towards both her and the child and thereafter pointed another weapon towards the floor, but angled in the mother’s direction. Ten days later, the police issued the mother and the child with an interim DVO listing the father as the defendant.
The police assisted the mother and child to leave M Town and travel to City K in mid-2021.
Since residing in City K, the mother deposes to living in a variety of temporary accommodations however, she has mostly resided at the residences of various persons from the N Church and other Christian associations. The mother holds a genuine concern for her prospects of obtaining permanent and stable accommodation in circumstances where she is unable to work and she receives no financial support from the father.
The mother alleges that she was a victim of family violence and she deposes to several incidents which culminated in the irretrievable breakdown of the relationship. The mother also alleges that the father has engaged in sexually inappropriate behaviour towards her and also the child.
TREATMENT OF EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) ("the Evidence Act").
Neither party spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles of s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to the evidence, particularly, if it is contentious.

Consideration was given to the objections to affidavits of evidence by application of the Rules in s 135 of the Evidence Act.
EVIDENCE OF THE PARTIES
The father
The father confirmed that the parties underwent a religious commitment ceremony conducted by a person who was not authorised to solemnise a marriage.
By reason of the father’s employment as a public servant, the mother undertook the majority of the domestic duties. As discussed, the parties lived at M Town with other people which was effectively a residential compound.
The father was shown an aerial map of the location and whilst the accommodation was adequate, the evidence readily supports a finding that the family lived in what could only be described as remote and isolated accommodation.
The compound was able to be locked. The parties owned a small motor vehicle however, the father acknowledged that it was suited only to sealed or high quality unsealed road surfaces and for any other driving, a four wheel drive, usually a work vehicle, was necessary.
It is likely that the mother and child were ill prepared for the remoteness of the father’s accommodation.
The distances that were required to be travelled were extensive and the catchment area often required the father to be absent from the home for extended periods of time. It was his estimate that he ate meals with the family at home, on a minimum of three times per week but only occasionally would he eat lunch.
The father joined the public service in 2008 and he agreed that as part of his training, but in any event consistent with his hobby interests, he underwent extensive weapon safety training.
The father’s evidence is that he was diligent in keeping his skills to an appropriate level, would undergo regular training in weapon management and was broadly familiar with a document relating to weapon safety guidelines.
The parties separated after the mother alleged that in mid-2021, the father pointed a weapon at the child and handled another weapon in a threatening manner towards the child and the mother.
Following separation, the mother and child were removed to City K and there was an investigation by the father’s employer as to the father’s conduct.
In mid-2021, the father was charged with four offences.
The matter was listed for hearing in the Local Court of City K. The father entered a plea of not guilty and in late 2021, the father was found not guilty on three of the four charges but he was found guilty on a weapons related charge. No conviction was recorded and the father was fined including an amount by way of victims of crime levy.
Immediately after the separation of the parties, the father was the subject of a s 41 Domestic Violence Order (“DVO”). The father challenged the DVO and following a hearing in early 2022, the DVO was discharged and the application dismissed.
The mother has alleged that in the short time that the parties were together, the father perpetrated family violence not just arising out of the alleged assault using weapons but also in terms of his conduct being aggressive, threatening and coercive towards her.
The father’s employer took disciplinary action against the father which ultimately resulted in his employment as a public servant being terminated.
At the hearing, the father’s evidence was that an appeal had been lodged against the tribunal decision to terminate his employment but at that time, no date for the rehearing had been set.
As discussed, the father has obtained employment as a labourer on a remote and isolated property.
A significant focus of the mother’s case was her belief that the father either intended to frighten the mother by pointing the weapon at the child and then using the other weapon in a threatening manner or that his conduct was so reckless that the child and the mother were placed at risk.
The father was subjected to detailed cross-examination as to his knowledge of the safety guidelines document but also his understanding of weapon safety and the extent of his training in the use of a weapon.
The father readily acknowledged that he had used the weapon as part of a game. At no time did the father activate the weapon although he accepts that it was a breach of guidelines to use the weapon in the way that he did even if it was meant to be part of a game.
The father confirmed that on the day of the alleged incident, he had been working and he returned from work at about 3.47 pm. He agreed that he had unsecured and lifted his weapon by about 2 to 3 inches but he denied that he had removed it completely from its case.
As he lifted the weapon, he said words mimicking the sound of the weapon. When asked what he was trying to achieve by using the weapons, his explanation was that it was a spontaneous action and was intended to amuse the child but not create fear or put the child or the mother at risk.
At the commencement of the proceedings, the mother sought to admit seven transcribed audio recordings. It was conceded that the father was unaware that the recordings were being made. The father objected to the admission into evidence of each of the audio recordings and the transcription.
The objection was upheld other than the transcribed audio recording that appears at page 105 of the mother’s trial affidavit. This transcription is different to the transcription used in the criminal proceedings in that the mother has added her own interpretation of events and sound effects. Whilst it is unnecessary to restate the reason why the objection was dismissed, the transcription is of the weapons incident. Further, the transcription was also admitted into evidence in the criminal proceedings.
The transcription is relevant to the extent of the weight and the gravamen of the mother’s evidence concerning the alleged incident and as such, is set out as follows:-
[Mother]:        Hmmm? Hmmm
[Father]:footsteps walking (inaudible) Cheeky choo, cheeky but there was none. [Screen door sound] No.
[Mother]:        You’re home early.
[Father]:I’m going back to work. Hello little man [screen door still making noise in the background].
[Mother]:        Awhh.
[Father]:         How are you, little man? [screen door still making noise].
[Mother]:He’s been very busy. [clicking sound not screen door] 0:34 {that could be [weapon] removed}.
[Father]:[mimicking weapon sound] [clicking sound much louder] {that could be [weapon] replaced} [mimicking weapon sound]. Laughs. Busy hey?
[Mother]:        Hmmm I’m making mama run already and I can’t even walk yet.
[Father]:Hmmm [affirmative] Is that right? [Baby grunts] Well I can’t pick you up cause I have all this on me. [Taps body] […] See? {removing the [weapon]}.
[Mother]:Oh gosh [sounding nervous]. Please do not aim that at the baby. That’s better. [Plastic slides/clicks into place] {replacing [weapon]} Rather aim it at me.
[Father]:[Laughs]. You would love to play with these toys wouldn’t you? [Laughs]. You would be like yeah. [mimicking weapon sounds]. Yeahs. No, I can’t hold you little man. You would get very uncomfortable very quickly.
[Father]:         All right. See you soon.
[Mother]:        All right.
[Screen door closes]
[Baby cries out]
[Mother]:[Country B language] […]. [translated, Awh, my child mommy is truly sorry]
The father agreed that he had partially withdrawn the weapon from its case and the clicking sound was likely to be from the weapon.
The father gave evidence that it was not his intention to frighten the mother, put the child at risk or to in any way engage in an aggressive act by the use of the weapons.
Given the content of the transcript of the audio recording, even with the mother’s interpretation of events, the transcript is entirely benign. That is not to suggest that there may not have been a significant breach of protocol by the father in terms of the misuse of weapons but that is different to a finding that it was the intention of the father to harass, threaten, frighten or intimidate the mother.
As considered, the father is currently a labourer on a property situate over 300 km from City K. The father is also experienced in another profession and was frank in his concession that he could put his hand to most things.
The father was hoping to re-join the public service and agreed that that was still a matter to be considered pursuant to a tribunal hearing, but if successful, where he would be stationed is likely to be a matter of negotiation.
The father was asked to consider the orders he sought that there be week about time in respect of the child in terms of his current employment and living circumstances. The father conceded that he would not be able to care for the child without significant assistance and in that regard, he considered that the child would be home schooled and his care would be assisted by two nannies. His proposal for the parenting of the child was heavily reliant on the assistance of Ms P and Ms Q. His evidence on this topic was unconvincing.
Whilst not a significant issue in the proceedings, there may be some contention between the parties as to whether the child should be brought up on a specific diet and whether the parties agree as to the need for the child to receive necessary vaccinations.
The father is not currently paying Child Support and when asked as to whether he offered any financial assistance to the mother, his response was that the mother would make a shopping list of items that she needed and the father would arrange it.
The father’s evidence as to the extent to which he financially assists the mother and the child was unsatisfactory and exaggerated.
The father did agree that the mother’s current inability to work and her less than stable accommodation was a matter of concern.
The mother’s case also refers to a purported level of insensitivity on the part of the father evidenced by the arrangements made for the mother and child to assist in driving a motor vehicle from Brisbane to L Town. The mother’s concern was that she considered that the child was distressed by the car trip and the father did little to ameliorate the child’s distress.
The father recognised that the trip was likely to be arduous however, he considered it was necessary to drive from Brisbane to City R in order to pick up the motor vehicle and thereafter the mother drove the father’s other motor vehicle to M Town and L Town.
The father is considered generally to be a reliable witness. On the balance of probabilities, I am satisfied that whilst foolish and regrettable, the father did not intend to threaten, frighten or place at risk either the mother or the child by the activation of one weapon and the partial withdrawal of the other weapon. The transcript audio recording corroborates the father’s version of the events and indicates that the mother understood that the father was attempting to amuse the child rather than place the child or the mother at risk.
The mother
In evidence, the mother confirmed that she resides in accommodation she considers unsatisfactory. If the mother is able to drive a motor vehicle, she is about twenty minutes from City K or three and a half hours on foot.
The mother has remained at her current location since February 2023 and was able to stay until the last day of March but after that, there was only a possibility that she could stay longer.
The mother’s rent and board is about $250 per week conditional upon the mother rendering cleaning services.
The mother and child do not live alone. They share the premises with a number of others.
At the time of trial, the mother had been accepted for Centrelink Pension Benefit or Allowance and received fortnightly payments of $746.30.
The mother relied upon her trial affidavit filed 2 February 2023.
The mother agreed that in anticipation of her travel with the child to Australia, the father advised her that the parties could live in a number of different locations some remote, some closer to a population centre.
The mother alleged that as part of the father’s aggressive conduct, she had been the subject of sexual assault. The incident is set out in paragraph 10(h) of her trial affidavit and occurred at L Town.
The allegation is based upon an assertion that the father had consumed large amounts of beer given to him by his mother, that he was intoxicated and behaved differently than his usual demeanour. The mother contends that the father proposed that they engage in sexual intercourse and whilst the mother considered that he was drunk, she was confused at his conduct and did not tell him that she was an unwilling partner. Her concern was that he might be angry and given her perception of his level of intoxication, she considered that the father’s conduct may escalate.
The mother acknowledged that the father would come home at odd hours consistent with his employment and would spend time with her and the child at night rather than during the day.
Following contact with the police after the weapons incident, the mother was questioned over an extended period of time and was assisted by the police to leave the compound. The mother conceded that the father had given her his debit card and that it had remained in her possession over an extended period of time. The implication is that it could not be said that the father engaged in controlling financial behaviour towards the mother.
The mother agreed that she considered the child to be at risk in the unsupervised presence of the father and that at present, the father’s visits were limited and supervised by a pastor known as ‘Mr S’ who assisted in supervising the video calls.
The mother’s primary proposal is that leave be given for her to relocate with the child back to Country B. The mother understood that there would have to be some arrangement for the child to keep in contact with the father and providing it is supervised, the mother proposes that there be two occasions in each year when the father would see the child either in Australia or Country B or at some other destination in the world. The mother’s financial position is that she could afford the cost of approximately $10,000 towards travel expenses derived from a business that she continues to own, with a possible income of $160,000.
The mother did not present any cohesive evidence that underpins her financial assessment and I do not consider that her evidence should be considered as reliable in terms of either her income or the ability to which she is able to contribute to the travel expenses of the child for the purposes of a spend time with order.
The mother is still not able to work in Australia but she does receive a Centrelink benefit, pension or allowance for the child.
The mother also referred to an incident wherein she was breastfeeding the child and the father entered the room at about 2.00 am. The mother decided that she would focus on feeding the child and accordingly, she left the bed and laid down on the floor. The mother contends that her action was motivated by an intention not to have the child next to the father in bed.
The mother then alleges that the father went to the bedroom and when he came back he was naked and stood over her. The light was apparently dim and the mother considered that the father was masturbating.
The mother made no objection to the father’s alleged conduct but was unsettled by his behaviour and it added to her belief that the father has a propensity to exhibit sexualised behaviour in front of the child.
The mother presented as an unreliable witness. An issue arises when the content of the police synopsis of the transcript of the recording made in mid-2021 is compared to the mother’s amended statement annexed to her trial affidavit. The mother’s document adds a sinister gloss to the benign documents prepared by the police.
As considered, the father’s evidence as to the reason why he engaged one weapon and handled another is far more credible than the gloss placed on the evidence as advanced by the mother.
The mother’s evidence on aspects of the father’s purported sexualised behaviour was also unconvincing.
I am however satisfied that the mother’s evidence as to her current predicament in terms of accommodation, inability to obtain work and her precarious financial circumstances is reliable.
Mr E
Mr E is a registered migration agent and has been assisting the mother in obtaining a visa to enable her to remain in Australia.
It is not controversial that the mother was granted a visitor visa in 2020. A condition of that visa is that the mother is not able to apply for any further visas whilst she remains in Australia.
Whilst there are some exceptions, they are unlikely to be of assistance to the mother. Mr E considers that the mother has no prospects of obtaining a future visa unless she departs Australia and lodges an offshore application.
The child is an Australian citizen and can remain in Australia. The mother accepted Mr E’s advice that her only option was to lodge a protection visa which would allow her to remain in Australia on a bridging visa.
It is a complicated option and involves an assumption that the mother would not be successful in obtaining a protection visa but as a result of a refusal, she would then be able to apply to the Minister to exercise his discretion pursuant to s 114 of the Migration Act1958 (Cth). Simply put, it is unlikely that grounds exist for the mother to obtain residency pursuant to a protection visa but it may be possible to seek the exercise of ministerial discretion in circumstances where the child could remain in Australia but she could not.
The process would likely involve a period of two to four years with some reasonable prospect of success.
I consider that Mr E is a reliable witness. He holds a law degree and has been practicing as a migration agent for 22 years. I find the mother has taken Mr E’s advice and whilst she has the ability to remain in Australia in the short to medium term, that is only because of the inefficiency of the system of visa allocation. There can be no finding that the mother will obtain the necessary permission to remain in Australia.
Ms J
Ms J is a Court Child Expert who prepared a Family Report dated 9 December 2022 (“the Family Report”). She observed the child and the mother together for about 20 minutes. She considered that the interaction was positive and that the mother was clearly attuned to the child’s needs. There was an obvious emotional attachment.
The child was able to converse with the mother both in English and Country B language and at one point the child told his mother that he needed a nappy change.
The father was not able to be observed with the child because of a mix up with the letter of appointment to the father. The concern of the Court Child Expert is that the child would not have a meaningful relationship with the father if the mother is permitted to return to Country B.
Given the age of the child, the Court Child Expert was not convinced that the mother’s proposal would provide an appropriate foundation for a meaningful relationship to develop.
The Court Child Expert carefully considered the risk factors principally comprising family and domestic violence with a proper focus on the child’s safety and wellbeing. The Court Child Expert considered that the child may be at emotional and psychological risk if not provided with an opportunity to spend time with the father in circumstances where the mother alleges that the father presents as a risk arising from family violence and the father’s alleged propensity to engage in sexualised behaviours but that the risks presented can be appropriately dealt with by the father’s time with the child being supervised.
The issues identified by the Court Child Expert in the Family Report focus on the following:
(1)The child’s age;
(2)The mother’s allegations relating to the father perpetrating family violence and demonstrating sexualised behaviour;
(3)The extent to which the mother has the capacity and willingness to support the child’s relationship with the father;
(4)The potential adverse outcome for the mother if required to stay in Australia and the effect that it might have on her parenting of the child; and
(5)The consequence on the child of the potential to lose a relationship with the father if relocation to Country B is permitted.

The Court Child Expert considered that if there was substance to the mother’s claim of family violence and demonstrated sexualised behaviour by the father towards the child and the mother, then her conduct in removing the child from any effective communication with the father and enlisting the assistance of police is justified.
If the father’s account is accepted namely, that he has not perpetrated family violence or demonstrated inappropriate sexualised behaviour, then the mother’s conduct could form the basis for a finding that the mother intends to disrupt or interfere with the father’s relationship with the child.
The Court Child Expert considered that, providing it is safe to do so and the child is not at risk, there would be significant benefit to the child spending regular time with the father if he remains in the primary care of the mother. The time spent with the father should increase and be sufficient to ensure that the child can develop a meaningful and loving relationship with each of the parties.
Should the child live in Country B with the mother, then the concern expressed by the Court Child Expert is that the mother’s proposal namely, a visit of eight to ten weeks in each year together with video calls would be unlikely to promote a meaningful relationship. Simply put, the child is currently too young to develop an appropriate level of memory retention that would enable the child to maintain a continuing memory and connection with the father.
The recommendations of the Court Child Expert contemplated that the child should live with the mother and if there is no unacceptable risk relating to the father, then the father should spend unsupervised time with the child every Saturday and Sunday for a period of two hours and then for the father’s time to increase following the parties successful completion of appropriate parenting courses.
A significant matter of concern for the Court Child Expert is the ability of the mother to understand that if the Court finds the father does not present as an unacceptable risk then it is in the child’s interest to promote a relationship not to undermine it.
PRINCIPLES RELEVANT TO PARENTING ORDERS
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest are to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I note the directions contained in s 60CC(2)(A) of the Act, and I have regard to the allegation of the mother that the father has engaged in family violence.
I propose to adopt the following approach:-
(1)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)To have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)To have regard to the provisions of s 60CC of the Act in order to determine, in each case, what is in the child's best interests;
(4)To have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit of the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm;
(5)To have regard to the additional considers under s 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment.
Section 61DA(2) and (4) of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters, as set out in s 61DA of the Act (if relevant), would rebut the presumption.
In circumstances where the parties seek an order of equal shared parental responsibility and it is not rebutted, then s 65DAA of the Act requires the Court to consider whether there should be an order for equal time. If not, then substantial and significant time must be considered. The test is whether the orders sought would be in the best interests of the child and reasonably practicable. In MRR v GR (2010) 240 CLR 461, it was said that the considerations of whether equal time was feasible required a “practical assessment”.
Following the remarks of Finn J in Blanding v Blanding [2016] 55 Fam LR 218 where her Honour considered the Full Court decision in Beckham v Desprez [2015] 55 Fam LR 310, there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
THE PRINCIPLES APPLICABLE TO RELOCATION CASES
In AMS v AIF [1999] 199 CLR 160, Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218. To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father ... or to be in the custody of the mother ... . That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother's custody ...
The Full Court in Starr & Duggan [2009] FamCAFC 115 ("Starr & Duggan"), gave clear direction as to the co-existence principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38. ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties' respective proposals. In the case of Starr & Duggan (supra), it was the wife's application that she be permitted to relocate to Germany with the children.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children, and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90, the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48."Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
PARENTING CONSIDERATIONS
The parties are not agreed as to parental responsibility.
The mother seeks sole parental responsibility on the basis that whether she is required to remain in Australia with the child or is permitted to relocate the child’s residence to Country B, the relationship between the parties is so highly conflicted arising from the father’s alleged family violence and sexualised behaviour that there is no possibility of effective and child focused communication occurring.
The father’s proposal is that his time should increase immediately to an equal shared care arrangement. If the mother cannot remain in Australia, then the father proposes that the child reside with him and that he have sole parental responsibility.
The orders sought by the mother would have the child in her primary care and any time to be spent with the father would be under strict supervision. The uncertainty, as considered by the Court Child Expert, is whether either if required to remain in Australia or if leave is given for the child to relocate to Country B, the mother would promote and support the child’s relationship with the father.
Meaningful relationship
In Mazorski v Albright [2007] FamCA 520, Brown J commented on the definition of "meaningful" and said:-
26.What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence"… when considering the primary considerations and the application of the object and principles, a meaningful relationships or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405, the Full Court said:-
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
I must therefore consider orders that serve the best interests of the child and must weigh up the competing primary considerations namely, the benefit to the child of having a meaningful relationship with both parents but also, the need to protect them from physical or psychological harm.
The latter consideration therefore requires a focus on whether the child is at risk of being subjected to physical or psychological harm or being exposed to abuse, neglect or family violence.
In Cotton & Cotton (1983) FLC 91-330, Nygh J at 78,252, considered that whilst it was generally desirable for a child to maintain a meaningful relationship with both parents:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Sigley v Evor (2011) 44 Fam LR 439, in the context of a relocation case, the Full Court undertook a review of the authorities with a view to defining "meaningful relationship" and in doing so at [136], quoted the following from the decision of Champness & Hanson (2009) FLC 93-407 ("Champness") at 83,502:-
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a "meaningful relationship" with both parents. This is an incorrect assumption. The Court's obligation is to make the orders most likely to promote the child's best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider "the benefit to the child" of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all the other relevant factors. …
(Emphasis in original)
In Champness (supra), the Full Court said at 83,513:-
191.The first and very important observation we would make about this complaint is that the expression "meaningful relationship" is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a "meaningful relationship".
In St Claire & St Clair and Ors [2013] FamCA 108, Cronin J was confronted with a seven year old child who had not had any contact with their father for three years. The child's 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father, was subject to the child's consent. The final orders provided for the younger child to spend time with the father in accordance with a strict therapeutic regime conducted over a period of 12 months. His Honour said:-
209.It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had 'something to offer' the children.
(Emphasis in original)
His Honour recognised that it was difficult to determine the extent of the benefit that may come to the child for a meaningful relationship with the father in the following terms:-
211.Just what benefit [the child] will receive in a limited and controlled environment is hard to know. The husband strongly resisted what he described as the prison-like environment of a contact centre. His view about [the child] just treating him as a normal father was unrealistic. Having said that, properly prepared, he could explain to [the child] just who he is and how important it is for her to know that if she needed a father, he could be available to her.
In Wang & Dennison (No 2) [2009] FamCA 1251, Bennett J made final orders that the children live with the mother but declined to make any orders for them to spend time with the father. This was based on the reluctance of both children, aged almost 10 and 12, to re-establish a relationship with their father and his inability to see the children's "need for peace". Her Honour had previously tried therapeutic intervention which was considered unsuccessful. There was evidence before her Honour, that the continuation of reunification therapy would place the children at an unacceptable level of emotional and physical risk. The following paragraphs of the judgment are apposite:-
76.… [The father] has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [the children] but has not done so out of any bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide.
77.It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, at least to the extent of any conflict. …
In Dennison & Wang [2010] FamCAFC 182, when considering the father's appeal against her Honour's orders, the Full Court cognised that at the heart of the father's appeal was an inability for the father to:-
5.…understand how, at the end of a lengthy trial where the trial judge made strong and adverse comments about the mother, and no comments of a serious nature against the father, that the orders provide him with no physical contact…
Implicit in the disposal of the appeal, is clear support for the objects of the Act namely, that the best interests of the child or children should be the paramount concern. Importantly, the Court recognised that:-
142.The "reality of the situation of the parents and the child" (MRR v GR (2010) 263 ALR 368 at 372) was clearly a significant part of the trial judge's reasons for making no orders, as opposed to the desirability for a parent having a "meaningful relationship" with his children.
In Baglio & Baglio [2013] FamCA 105 ("Baglio"), Murphy J had to consider the father's application to spend time with an almost six year old child who he had not seen for almost three years. The mother was opposed to the child spending time with the father and she freely admitted that she would not encourage a meaningful relationship. She said that she lived in constant fear of the father and it was clear that she had intentionally alienated the child from the father.
In Baglio (supra) at [111] his Honour found that there was a "chance of a meaningful relationship…which is beneficial to the child" and that the absence of such a relationship may well cause harm in the long-term. At [121], following a finding of no unacceptable risk, his Honour said "if there is no unacceptable risk of harm to her, the child should have the opportunity to know, and have an image of, a father who did not hit her."

In Baglio (supra), the following appears:-
148.…I am concerned by the mother's actions in intentionally alienating the child from her father and removing from her life all references to him, other than references to violence. The child's rights, enshrined in Part VII Objects and Principles, pertain. I am also concerned by the mother's repeated assertions that she will not encourage a relationship between the child and her father, even if the Court were to find that the father does not pose an unacceptable risk of harm to the child. I consider such statements and conduct to be completely antithetical to the child's best interests and demonstrative of an inability on the part of the mother to place the child's needs, and in particular the benefit she may obtain from a relationship with her father, over her own issues with the father.
Whilst there may be some conjecture as to the underlying motive of the mother, at face value, each of the proposals of the parties recognise that it is to the child’s advantage that he maintain a meaningful relationship with each of them. If the child remains in the primary care of the mother, then the extent of the mother’s ability to promote a relationship becomes an important consideration. If the child remains in the primary care of the father in circumstances where the mother would be forced to leave Australia and return to Country B, the issue of the parties separate ability to facilitate a relationship made difficult by the tyranny of distance must be considered.
Should the child return to Country B with the mother, both considerations namely, the tyranny of distance and the mother’s preparedness to facilitate a relationship are in issue. Particularly, given the view of the Court Child Expert that on the mother’s current proposal but also by implication relevant to the father’s proposal, should the mother be required to leave Australia, given the child’s current age, eight weeks per year would be inadequate to maintain an appropriate relationship.
The father’s primary position is that the parties should equally share the care of the child.
It is likely that such an option would be problematic.
The father currently works as a labourer on a remote station. The mother’s living circumstances are precarious in City K where she has at least some community support but would likely be intolerable if she moved to City C.
Neither of the parties presented comprehensive evidence as to their future arrangements but it is difficult to find that the father would be in a position to share the care of the child with the mother given his current employment circumstances. I do not ignore that the father has a current appeal against his termination as a public servant but at this stage, it is a matter of uncertain speculation as to the father’s future plans.
In any event, the father has presented evidence that his ability to care for the child would only be possible by the use of two friends who would act as nannies for a relatively limited time.
The evidence presented by the father of the reliability of the support that would be required to give effect to either his primary care of the child or equal shared care was unsatisfactory and unreliable.
Given that finding, the issue in reality is that the child would likely continue to reside with the mother and the focus is the extent of time he will spend with his father.
I do not ignore that whilst important, a finding that a meaningful relationship would be in the interests of the child is an important consideration but nonetheless, it needs to be considered against the other factors.
Is the child at risk?
The mother alleges that the child has been exposed to family violence and that there is a risk that the father has demonstrated inappropriate sexualised behaviour towards the child.
The mother’s concerns are set out in paragraph 11 of her trial affidavit under the heading of “Domestic Violence”, paragraphs 16 to 20 under the heading of “Sexualisation of [the child]” and paragraphs 21 to 33 under the heading of “Parental capacity”.
Significant consideration was also given to the mother’s allegation that the father used his weapons to threaten, intimidate and frighten both her and the child.
In relation to the latter, I have found that whilst the father’s conduct was likely to be a breach of protocol for which he has been disciplined and had his employment terminated, it was not his intention to threaten, frighten or harm the mother and the child. Whilst noting that the mother made a complaint to the police and repeated her concerns in florid detail to the Court Child Expert, the evidence does not support the mother’s presentation. I consider that the mother has relied upon the incident to support her decision to separate from the father and to provide some basis for the DVO being put in place.
I am also not satisfied that the evidence supports a finding that the father perpetrated family violence towards the mother or that he demonstrated intended sexualised behaviour in front of the child. Whilst the mother considers that the father’s conduct amounted to grooming, I do not consider that the evidence comes close to such a finding.
On the topics of family violence and sexualised behaviour, the mother’s evidence was unreliable and exaggerated.
Absent from those considerations, there is still the potential for the child to be placed at risk. If the child remains in the primary care of the mother whether she is able to relocate to Country B or is required to remain in Australia, the concern of the Court Child Expert is the extent to which the mother would support the father’s relationship with the child. Implicit in the recommendations of the Court Child Expert is a concern that without appropriate counselling and therapeutic assistance, it could not be said with any certainty that the mother would support the child’s relationship with the father. In Australia it would be difficult however, in Country B it may well be a self-fulfilling prophecy.
A further consideration is that if the mother is required to remain in Australia then this may not accord with a decision that would cancel her current protection visa or if able to stay in the medium term, her ability to support herself financially and find suitable accommodation is almost non-existent.
Whilst I have more confidence that the father would support the child’s relationship with the mother, his own circumstances are far from certain.
The risks to the child therefore are likely to be situational given that the evidence strongly supports a finding that the child’s best interests would be served living with the mother. The focus then turns to the mother’s ability to support the child’s relationship with the father and if not, then whether in all the circumstances, she should be permitted to return to Country B.
In recognition of the Court having to consider the extent to which the mother is prepared to facilitate the father having a relationship with the child and the issue being raised by the Court Child Expert, the mother’s counsel prepared a Summary of Argument document which summarised the mother’s position in the following terms:-
36.Despite her own difficult relationship with the father, the mother accepts that it is important for the child and the father to have a relationship.
37.The mother also understands that non-compliance with any orders made to facilitate the father spending time with the child would enable the father to apply to have the child returned to Australia and to seek an order for sole parental responsibility. Further, she understands that in this situation there is a risk that she may not have immigration approval to enter and reside in Australia and her ability to remain in close proximity to the child would be substantially impacted. The mother has devoted all her time and energy to raising and loving the child and finds this potential outcome highly distressing. She is therefore highly motivated to comply with the Court’s orders.
Taken at face value, it is an integral part of the mother’s case that whether she remains in Australia with the child or is permitted to relocate the child to Country B, the Court can have confidence that she will comply with orders made.
The mother does not state that compliance with orders to promote, encourage and facilitate the child’s relationship with the father would occur if the child’s time with the father is unsupervised.
The submissions made on behalf of the mother must be tempered by her position stated to the Court Child Expert that she considers the father’s conduct to be controlling, that she wants nothing to do with the father and that if contact is required to occur that it be very minimal.
The mother’s presentation to the Court Child Expert did not impress as is self-evident from the following remarks in the Family Report:-
164.The risks of this proposal are the writer’s assessment that [the mother] is unlikely to promote the relationship between [the child] and [the father]. If [the child] is permitted to relocate to [Country B], his relationship with [the father] will be dependant solely on [the mother]’s discretion and commitment for [the child] to share relationship with his [father]. Furthermore, given [the child]’s young age and stage of development, he is not able to express his views and wishes in relation to the relocation, nor is he able to understand the significance of such a decision, or what the relocation means for his relationship with either parent.
The practical difficulties and expense of the children spending time with each of the parties
The mother states that her inheritance comprising of a property and various related enterprises will enable her to contribute to the costs of travel.
At this stage, there is significant uncertainty as to the financial ability of the father to fund travel to Country B and given the mother’s stated concerns to the Court Child Expert as to that prospect, it is unlikely that the mother would readily facilitate that occurring.
There is a good basis for the concern expressed by the Court Child Expert as to the mother’s ability to facilitate a relationship with the child particularly, if the mother is permitted to relocate sooner rather than later and before the child has had an opportunity to establish a relationship with the father free of the condition of supervision.
I am not satisfied that at this time, either the mother or the father have the ability to give effect financially to the orders being sought by the mother if relocation is permitted.
Some of the aspects of the mother’s orders are unusual in that she proposes the child spend time with the father in up to ten different overseas locations with the father’s time to be supervised by a nanny who must be agreed between the parties in writing. It is not clear how this would be arranged and at what costs. The proposal is presented with little or no rigour and unlikely to be workable.
The capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs.
The Court Child Expert observed a close emotional attachment between the mother and the child. No such observation was able to be made in respect of the father. It is however assumed that there is some relationship arising from the ongoing supervised time, albeit of short duration.
The Court Child Expert considers that the father’s time should resume for a few hours each week on an unsupervised basis and then to increase, consistent with the parties gaining assistance from various parenting programs and the mother obtaining specific therapeutic assistance in order to bolster her ability to facilitate the child’s relationship with the father.
Family violence
The Court has given significant consideration to the allegations of family violence raised by the mother. As discussed, I did not consider that the mother’s evidence was reliable and her presentation was likely tainted by her dislike of the father and as a desire to strengthen her case for a relocation of the child to Country B.
I bring to account that there have been domestic orders made following the parties’ separation however, after various court hearings, those orders were dismissed including the criminal proceedings also taken against the father.
It is an assumption by the mother that the Court would consider that because the DVO and the criminal proceedings were dismissed, this in some way casts doubt on the mother’s evidence in the present proceedings. If that were to be the Court’s position, it would be impermissible.
The mother contends that she and the child were not parties to the proceedings and that the prosecution of the DVO, and possibly the criminal proceedings, were compromised by the father’s employer having a conflict of interest. I do not accept the proposition that there was bias in favour of the father. It is relevant that the father lost his employment.
Irrespective of the DVO and the criminal proceedings, I have assessed the evidence separately and do not consider that the father presents as a risk to the child arising from family violence or attempting to groom the child by the display of sexualised behaviour.
ADVANTAGES OF RELOCATION
If permitted to relocate, the mother will have the advantage of employment, accommodation and the ongoing support of her extended family and religious community.
The child was born in Country B and spent the first months of his life there without physically spending anytime with the father. There is no reason to suggest that, other than for the issue of time spending between the child and the father, the experience in Country B would be other than of benefit to the child.
DISADVANTAGES OF RELOCATION
The most significant disadvantage would be the inability for the child to further develop a meaningful relationship with the father. Given the child’s young age, I am satisfied that the relationship which the child has with the father would be something less than meaningful if relocation was permitted.
Unfortunately, there is little evidence as to the full impact on the child of the diminution of the relationship or the extent of any adverse impact upon the child in the mid to long term.
There would however, be a significant disadvantage in not affording the mother the ability to relocate with the child. The mother is currently unable to work as a condition of her visa and the evidence presented by Mr E is that it a significant amount of time will pass until her application has been heard, determined and finalised. A further disadvantage is that the mother has not been able to afford rental accommodation and has been residing in various homes for free. It is an unfortunate aspect of this case that the father has not assisted the mother financially nor has he paid any Child Support.
Conversely, there is uncertainty as to whether the mother and/ or the father, would have the financial ability to effect the orders sought by the mother and further, what would happen in the event that either of the financial circumstances of the parties were to change in the future.
PARENTAL RESPONSIBILITY
As considered, the parties are not agreed as to the future parental responsibility for the child. The mother seeks an order that she have sole parental responsibility but agrees to keep the father informed of any educational enrolments, religious ceremonies, major medical procedures, milestones or significant events that occur in the child’s life.
The determination of parental responsibility for the child is to be informed by a consideration of what is in the child’s best interests.
The parties have a demonstrably poor relationship. There is conflict and a deep mistrust between the parties. The mother is strongly opposed to the father spending any time with the child that is not supervised by a professional person, an approved nanny or in the presence of the mother should she so elect.
The parties are also not able to communicate effectively. The mother contends that communicating with the father has an impact on her mental health and thereby adversely affecting her ability to parent the child. No evidence was presented as to that aspect but the mother’s presentation would suggest that it is unlikely she would be easily reconciled to speaking to the father.
The matters raised as between the parties would readily support a finding that the presumption of equal shared parental responsibility would not be in the child’s best interests. There is little likelihood that the parties are able to reach consensus and the issues that impact upon the child need to be the subject or ready resolution and determination which would not be possible if any action required was dependent on the parties reaching agreement.
CONCLUSION
The focus has been upon a consideration of the orders that would best maintain the child having a meaningful relationship with the father in circumstances where there is little other option but for the child to reside in the primary care of the mother.
The complication is that the mother’s circumstances in Australia are dire. With the wisdom of hindsight, there may well have been a level of naivety on the part of the parties that it was viable for the mother and the child to leave Country B and enter into a life with the father in an isolated and remote area. Moreover, the inability of the mother to secure an appropriate visa enabling stability of residence in Australia, as opposed to a torturous process of going through the motions of visa rejection in anticipation of a favourable exercise of ministerial discretion, is untenable.
Given that the primary care of the child should remain with the mother, her personal circumstances are difficult in that she is not able to secure employment, is reliant upon a Centrelink benefit or pension in respect of the child rather than in her own right and where the father does not contribute financially by way of Child Support.
Those considerations must be tempered by a focus on the needs of the child and in particular, that where there is uncertainty if the mother is permitted to relocate as to whether she will genuinely support the child’s relationship with the father, I consider that whilst the mother should be permitted to relocate the child’s residence to Country B, it should not occur for a period of 24 months during which time the child will spend gradually increasing unsupervised time with the father and enable the mother an opportunity to demonstrate both compliance with Court Orders but also to undertake the therapeutic assistance as suggested by the Court Child Expert.
The mother’s proposal for immediate relocation of the child is compromised by the uncertainty that she and the father have the financial ability to give effect to the orders that she seeks. Moreover, the evidence of Mr E is that the visa process will take between two and four years and so there is some reasonable certainty that the mother would not be deported during the period that is contemplated by these Orders. Were the visa process to become expedited and the mother not able to remain in Australia at an earlier time, then that would be the basis for the earlier relocation of the mother and child relocating to Country B.
I have given careful consideration to the separate proposals of the parties. The advantages and disadvantages are self-evident and doing the best I can, I consider that over a period of eighteen months a relationship will better develop between the child and the father, the mother’s financial circumstances in Country B will likely crystallise and there will be an opportunity for the mother to recognise that her own view of the father must be subordinate to the child’s best interests being served by a relationship being developed.
It is also reasonable that if the mother is able to find more appropriate accommodation, financial and community support in City C that she should be permitted to relocate acknowledging the father’s preparedness to also move to City C.

I make the orders that appear at the commencement of these reasons.

I certify that the preceding one hundred and ninety-nine (199) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 24 May 2023

File number(s):	ASC 5 of 2021
Judgment of:	BERMAN J
Date of judgment:	24 May 2023
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – Where the mother lived in Country B until 2021 – Where the child was born in Country B – Where the mother has employment, housing and family support in Country B – Where the mother cannot work in Australia because of her visa – Where the mother cannot afford rental accommodation – Where the father has not financially assisted the mother – Where there is a significant disadvantage in not affording the mother the ability to relocate with the child – Consideration of whether the child could develop a meaningful relationship with the father if relocated – Consideration of the child’s young age – Orders providing for the father to establish a relationship with the child free of the condition of supervision prior to relocation permitted. FAMILY LAW – CHILDREN – With whom a child spends time with – Where the mother alleges family violence and inappropriate sexualised behaviour by the father – Where the court finds that the mother’s evidence was not reliable and that the father does not present as a risk to the child – Whether the mother is able to support the child’s relationship with the father –Where the mother is opposed to the father spending any time with the child that is not supervised – Consideration of the extent to which a final order that a party’s time with a child should be the subject of long term supervision – Consideration of orders that would best maintain the child having a meaningful relationship with the father until the mother is permitted to relocate – Orders. FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the parties have a demonstrably poor relationship – Where the parties are unable to communicate – Where equal shared parental responsibility would not be in the child’s best interest – Orders.
Legislation:	Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth), Division 12A, ss 60CA, 60B(1), 60B(2), 60CC, 60CC(2), 60CC(2)(A), 60CC(3), 61DA, 65DAA, 69ZT, 69ZT(3), 69ZN Migration Act 1958 (Cth) s 114
Cases cited:	AMS v AIF [1999] 199 CLR 160 Baglio & Baglio [2013] FamCA 105 Beckham v Desprez [2015] 55 Fam LR 310 Blanding v Blanding [2016] 55 Fam LR 218 Champness & Hanson (2009) FLC 93-407 Cotton & Cotton (1983) FLC 91-330 Dennison & Wang [2010] FamCAFC 182 Mazorski v Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Sigley v Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 St Claire & St Clair and Ors [2013] FamCA 108 Wang & Dennison (No 2) [2009] FamCA 1251 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	199
Date of hearing:	14, 15, 16 and 20 February 2023
Place:	Adelaide via MS Teams
Counsel for the Applicant:	Mr Lipert
Solicitor for the Applicant:	Grays Legal NT
Counsel for the Respondent:	Ms Heske
Solicitor for the Respondent:	Kelly & Partners Lawyers

ASC 5 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VROLIJK Applicant
AND:	MS BEAULNE Respondent

order made by:	BERMAN J
DATE OF ORDER:	24 may 2023