Weekes & Kendrick - [2023] FedCFamC2F 358

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Weekes & Kendrick [2023] FedCFamC2F 358

File number(s): NCC 2354 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 30 March 2023

Catchwords: FAMILY LAW – parenting – competing residence applications - where a five year old child has been denied a meaningful relationship with one parent by the other – refusing to promote a reintroduction of parental relationship in accordance with interim orders culminating in recent interstate relocation - where a material possibility of psychological and/or emotional harm to the child is posed by the mother - where no risk of significant harm in the father’s household is found - careful weighing up of evidence required - extensive supports required to assist the child during transition – to encourage positive social development and reduce anxiety – encourage and develop a meaningful relationship with both parents – change of residence appropriate with supports in place – restraints to ameliorate risk of child’s exposure to conflict - best interests of child

Legislation: Family Law Act 1975 (Cth)

Cases cited:
A v A (1998) FLC 92-800 at 84,996

AMS v AIF [1999] HCA 26

B and B (1993) FLC 92-357

Berys & Berys [2022] FedCFamC2F 1162

Blinko & Blinko [2015] FamCAFC 146

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

Eastley & Eastley [2022] FedCFamC1A 101

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Saunders [2007] FamCA 102

Hepburn & Noble [2010] FamCAFC 111

Isles & Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

Mazorski & Albright [2007] FamCA 520

Morgan & Miles [2007] FamCA 1230

MRR & GRR [2010] HCA 4

Napier & Hepburn [2006] FamCA 1316

Russell & Close [1993] FamCA 62

Star & Duggan [2009] FamCAFC 115

Sweet & Sweet [2022] FedCFamC2F 676

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 2 Family Law

Number of paragraphs: 254

Date of hearing: 16-17 February 2023 & 3 March 2023

Place: Newcastle

Counsel for the Applicant: Mr Friedlander

Solicitor for the Applicant: Sharah & Associates

Counsel for the Respondent: Mr Karp (Day 1 & 2) and Ms Windsor (Day 3)

Solicitor for the Respondent: Grace Family Lawyers (at defended hearing) and Cragg Braye & Thornton (at judgment delivery)

Counsel for the Independent Children's Lawyer: Ms Van Oosterom

Solicitor for the Independent Children's Lawyer: Harpers Legal
ORDERS

NCC 2354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WEEKES

Applicant

AND:
MS KENDRICK

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

30 MARCH 2023

THE COURT ORDERS THAT:
1.All previous Orders relating to the child, X born in 2017 are discharged.
2.The applicant, MR WEEKES (‘the father’) shall have sole parental responsibility for X.
3.In the exercise of his sole parental responsibility at Order 2, the father shall, prior to making the sole ultimate decision:
(a)Within 14 days of having to make the decision, advise the respondent, MS KENDRICK (‘the mother’) in writing of the decision being considered and its particulars;
(b)Within seven (7) days of receipt of notification from the father pursuant to sub‑paragraph (a) above, the mother is to provide the father with her written response;
(c)Upon considering any response the father may receive from the mother in accordance with sub-paragraph (b), the father is to advise the mother in writing as soon as reasonably practicable of his ultimate decision; and
(d)If there is an emergency situation that does not permit the father to advise the mother, the father will make a decision that is in the best interests of X to address that emergency and will, in no more than 24 hours’ notify the mother of the emergency, the advice provided to him by any professional and the decision made by the father.

4.X shall live with the father.
5.To facilitate Order 4, upon the handing down of this judgment the mother is restrained and an injunction shall issue –
(a)prohibiting her from attempting to contact or approach the child until otherwise permitted by these Orders;
(b)prohibiting her from attending or attempting to enter level 2 of the Newcastle registry building (‘the registry’) until the child has left the registry;
(c)prohibiting her from loitering within the curtilage of the registry until after the child has left the registry; and
(d)prohibiting her from requesting any agent of hers (including her adult daughter MS B) from doing any act that is contrary to the injunctions contained within this Order.

6.To assist in the transition of X to the care of the father, as soon as practicable, the mother and the father’s nominee will attend at the McDonalds Restaurant Suburb C so that the mother can deliver to the nominee items belonging to X including:
(a)Any comfort items/blanket;
(b)At least five (5) outfits (clothing);
(c)At least two (2) pairs of shoes; and
(d)An assortment of toys.

7.The father shall obtain a referral for X to attend counselling with a qualified child therapist to assist with matters including transition to his care and in doing so, the father shall ensure that X attends counselling for as long as considered necessary by the therapist and the father shall follow all recommendations of the therapist.
8.In the event that by 6 April 2023, the father is unable to engage X in therapy in accordance with Order 7, THEN in the intervening period until he does so, the father is to make enquiries with X’s current psychologist, Ms D, about the possibility of continuing X’s therapy with Ms D.
9.By 6 April 2023, the father shall enrol X at a local primary school and is to liaise with the school and follow their directions regarding an appropriate transition for X to school.
10.For the purpose of facilitating Orders 7, 8 and 9, Order 3 is suspended.
11.Until 4.00pm 25 May 2023, X will spend no time and have no communication with the mother (‘the moratorium’).
12.Subject to Order 11, upon the conclusion of the moratorium, X will spend time with the Mother as follows:
If the Mother lives more than 200 kilometres from the Town E area:
(a)During school terms as exercised by X’s school, on the second, fifth and ninth weekends from the conclusion of school (or 3.00pm) Friday until 5.00pm Sunday.

If the mother lives less than 200 kilometres from the Town E area:
(b)During school terms as exercised by X’s school, on each alternate weekend from the conclusion of school (or 3.00pm) Friday to the commencement of school (or 9.00am) Monday; and
(c)From 2.00pm Christmas Day until 2.00pm Boxing Day in 2023 and each alternate year;
(d)From 2.00pm Christmas Eve until 2.00pm Christmas Day in 2024 and each alternate year; and
(e)On X’s birthday, from 3.00pm until 6.00pm (if her birthday falls on a school day) and from 10.00am until 1.00pm (if her birthday falls on a non-school day).

13.Subject to Order 11, X shall spend time with the parties as follows:-
(a)During the Autumn, Winter and Spring school holidays –
(i)In 2023 and every following alternate year –
A.With the father from the conclusion of school (or 3.00pm) on the last day of the preceding school term until 12.00noon on the middle Sunday; and
B.With the mother from 12.00noon on the middle Sunday until 12.00noon on the day before the first day that X is required to attend school for the new school term; and

(ii)In 2024 and every following alternate year –
A.With the mother from 9.00am on the day after the last day of the preceding school term until 12:00noon on the middle Sunday; and
B.With the father from 12:00noon on the middle Sunday until the new school term commences; and

(b)During the Summer school holidays –
(i)In 2023 and every following alternate year –
A.With the father from 9:00am on the day after the last day of Term 4 until 12:00noon on 8 January; and
B.With the mother from 12:00noon on 8 January until the 12.00noon on the day before X is required to return to school for the commencement of Term 1; and

(ii)In 2024 and every following alternate year –
A.With the mother from 9.00am on the day after the last day of Term 4 until 12:00noon on 8 January; and
B.With the father from 12:00noon on 8 January until 4:00pm on the last Sunday before the first day that X is required to return to school for the commencement of Term 1;

(c)Mother’s Day weekend – with the mother from the conclusion of school (or 3.00pm) on Friday until 5.00pm on Sunday;
(d)Father’s Day weekend – with the father from the conclusion of school (or 3.00pm) on Friday until 5.00pm on Sunday.

14.X shall spend time with the mother at all other times as agreed in writing between the parties, PROVIDED THAT the mother gives the father at least two weeks’ written notice of her intention to do so and undertakes that X will stay within a 200km radius of the father’s home.
15.Subject to Order 11, X shall have telephone or video communication with the party she is not spending time with on at least two (2) occasions per week and failing agreement between the parties, on Wednesday and Saturday between 5.00pm and 5.30pm.
16.Unless changeover occurs at school, changeovers shall occur at the McDonalds Restaurant at Suburb C by either the parties or their nominee/s (being a person known to X).
17.The parties shall maintain a dedicated email address to be used to inform each other about, and not contain any subject matter other than:
(a)X’s school and extra-curricular activities;
(b)X’s health and any appointments she may have with health care providers;
(c)X’s prescribed medications and recommended treatment, diagnosis, prognosis and recommendations by health practitioners; and
(d)Any other information as may relate directly to X and the carrying out of these Orders.

18.Subject to Order 11, each party is authorised, and these orders are sufficient authority for the parties to:
(a)attend X’s school and extra-curricular events that each party could ordinarily expect to attend, including but not limited to awards ceremonies, performances and sporting games (at their own expense);
(b)liaise with X’s treating medical professionals and to obtain any available records and information (at their own expense);
(c)liaise directly with X’s school to obtain any information that can reasonably be expected to be available for provision (at their own expense).

19.For the purposes of Order 18, the father is to ensure that the mother is kept informed of the details of X’s treating practitioners and any schools that X is enrolled with.
20.Each party shall notify the other as soon as reasonably practicable of any medical emergency, serious injury or illness involving X including, but not limited to, providing details of the medical facility at which X is being treated and the nature of the injury/illness.
21.The parties are to keep the other informed as to their current contact details (mobile number and email address) and advise the other party of any change to these details within 24 hours of such change occurring.
22.The parties are restrained and an injunction shall issue prohibiting them from denigrating each other in the presence of hearing of X and will remove X from any situation where any third party is doing so.
23.The parties are restrained and an injunction shall issue prohibiting them from discussing these proceedings, or issues related to the parenting dispute in the presence or hearing of X and will remove X from any situation where any third party is doing so.
24.The mother is restrained and an injunction shall issue prohibiting her from changing X’s regular health care provider or therapist, without the prior written consent of the father and to facilitate this Order, the father is permitted to provide a copy of these Orders to such third parties.
25.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), from 30 March 2024, the parties are permitted to remove X from the Commonwealth of Australia to travel for a holiday to a Hague Convention ratifying country only during a period of time when X is in that party’s care pursuant to these Orders, provided that the travelling party provides the other party with:
(a)No less than 35 days written notice of the intended travel, or other such notice period as agreed between the parties in writing;
(b)No less than 7 days prior to the travel:
(i)A copy of the return airfare tickets for X and the travelling party;
(ii)A contact number for the travelling party and X whilst they are overseas;
(iii)Proof of travel insurance for X;
(iv)A copy of the final travel itinerary.

26.Within 14 days of a written request to do so by either party, both parties shall do all acts and things necessary and sign all documents required for the purpose of obtaining a passport or renewing a passport for X with the costs of such application or renewal to be borne by the requesting party.
27.The Australian passport issued to X shall be held by the father, with the father to make the passport available to the mother no less than 48 hours prior to the departure date for the purpose of overseas travel with X, as permitted under these Orders.
28.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders

IT IS FURTHER ORDERED THAT:
29.By 30 March 2024, the mother is to make a contribution towards the costs of the Independent Children's Lawyer fixed in the sum of $7,004.50.
30.By 30 March 2024, the father is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $7,004.50.
31.All outstanding applications are withdrawn and dismissed.

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

As a result of the fears of a mother and her adult daughter, a young girl has no working memory of her father. Both parents allege the other poses risks to the girl and for that reason the child should live with them. The independent children’s lawyer sees more risk in the mother’s home. Where should the girl live and what arrangements should be put in place (if any) for her to have a relationship with the other parent?
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and, where possible, there will be an avoidance of the use of gendered pronouns.
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth). Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth).
The proceedings were commenced by the Applicant, MR WEEKES (‘the father’) with the Respondent being MS KENDRICK (‘the mother’).
The subject child is X (‘the child’ or ‘X’).
The child was independently represented by Natalie Bremner (‘the ICL’).
PRECIS
The genesis for the commencement of the substantive proceedings by the father was the breakdown in the informal arrangement he had with the mother to spend overnight time with the child, who at the time was about three (3) years of age.
The mother asserted that the father posed an unacceptable risk of harm and the child has not spent any substantive time with the father since March 2020. In essence, the mother said that the risks posed by the father included that he was a perpetrator of family violence and a perpetrator of sexual abuse and/or had a propensity to engage in sexually inappropriate behaviours arising in part upon the abuse that the mother’s adult child, Ms B said the father had committed. The mother had an alternative position for the father to spend time with the child should her primary position fail to find favour with the Court.
The father and ICL were ultimately united in submitting that it was the mother who posed the unacceptable risk of emotional and psychological harm to X and that the only way the child would have any chance of a meaningful relationship with the father and otherwise be safe, was for X to live with the father.
For the reasons that follow, I have largely adopted the joint position of the father and the ICL (with some changes to reflect what I heard during closing submissions) which will mean in summary that –
(a)The child will live with the father;
(b)The father will have sole parental responsibility for the child;
(c)After a hiatus of eight (8) weeks, the child will spend regularised time with the mother dependent on where the mother lives;
(d)The child shall be permitted to travel overseas in 12 months’ time; and
(e)Each party shall have 12 months to pay their share of the ICL’s costs fixed in the sum of about $7,000 each.
In order to determine these issues, it is important that I traverse the applicable law.
THE APPLICABLE LAW – PARENTING PROCEEDINGS
In these proceedings the parties invite me to make a parenting order (s 64B), which I can, provided I think it is proper to do so in light of the objects of the Act and the underpinning principles of those objects: ss 65D and 60B.
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and in doing so s 60CC (2) and (3) set out the matters to which I must have regard to. This consideration of the child’s best interests is also mandated within s 65DAA to which I shall return.
The legislation makes clear that s 60CC(2)(a) is not intended to alleviate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the specified objects of Pt VII are to ensure that the best interests of children are met.
In Godfrey & Saunders [2007] FamCA 102, Justice Kay, sitting as the Full Court at [36] observed that what the Act aspires to is the promotion of a meaningful relationship, not an optimal one.

In Mazorski & Albright [2007] FamCA 520 (‘Mazorski & Albright’) Justice Brown at [26] said this about the concept of meaningful relationship -
26.…A meaningful relationship 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.
The two primary considerations require a consideration about whether the child will benefit from a meaningful relationship with their parents and the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
The need to protect takes precedence over the benefit to the child arising from a meaningful relationship.
In reflecting on the Court’s role when matters of risk are raised, Judge Morley in Berys & Berys [2022] FedCFamC2F 1162 (‘Berys’) said this at [177] –
117. Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
(1) Assess whether that risk is an acceptable risk or an unacceptable risk;
(2) If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
(3) Decide what orders are proper in all the circumstances in the best interests of the child.
In the decision of McClelland DCJ in Sweet & Sweet [2022] FedCFamC2F 676 (‘Sweet’), His Honour neatly summarised the issues and unacceptable risk. At [55] His Honour said this:
55.The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
• In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
• It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996[1]; M v M at 77.
• Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148] (‘DFCS v the Colt Children’).[2]
• The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
[1] Referred to as ‘A v A’
[2] Referred to as ‘DFCS v the Colt Children’
A finding of unacceptable risk need not be demonstrated according to the civil standard of proof: see Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) at [6], [7], [46]-[51] and [81]. Isles & Nelissen was followed in the decision of Eastley & Eastley [2022] FedCFamC1A 101 (‘Eastley’) at [45] where the Full Court observed that a finding of unacceptable risk was open on the available evidence because the evidence demonstrated a material possibility of risk, which need not have been demonstrated according to the civil standard of proof.
If the Court identifies the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] (‘Blinko’) referring to Russell & Close [1993] FamCA 62 (‘Russell & Close’).
In Napier & Hepburn [2006] FamCA 1316 (‘Napier & Hepburn’), the Full Court emphasised that it is not for the Court to find a solution which eradicates the chance of serious harm. Rather, the Court must balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy parent-child relationship not being permitted to flourish.
Relevantly to these proceedings –
(a)‘family violence’ is defined at s 4AB as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. For children, exposure to family violence means that they have seen or heard family violence or otherwise experience the effects of family violence: s 4AB(3); and
(b)‘abuse’ in relation to a child is defined at s 4 as meaning an assault, including a sexual assault, of a child.
Whenever the court is asked to make a parenting order, the court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility: s 61DA. Section 61B defines parental responsibility as encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example instances of child abuse and family violence: s 61DA(2) & (4).
No one sought the allocation of equal shared parental responsibility. As such, the mandatory considerations within s 65DAA are not triggered, albeit the allocation of any time, (including substantial and significant time, as defined within s 65DAA(3)) must still satisfy the “best interests” test.
“Substantial and significant time” is defined to mean time spent between the child and the parent that includes days falling on weekends and holidays and days that fall outside these periods, and time that enables the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, as well as allowing the child to be involved in occasions and events that are of special significance to the parent: s 65DAA(3).
When making determinations as to whether a child should spend equal time with their parents or substantial and significant time with a parent, s 65DAA (5) says this:-
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)   how far apart the parents live from each other; and
(b)   the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)   the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)   the impact that an arrangement of that kind would have on the child; and
(e)   such other matters as the court considers relevant
Note:          Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
“Reasonable practicability” is an important consideration in parenting disputes where the Court has to consider a child spending equal or substantial and significant time with each of their parents. As identified by the High Court in MRR & GRR [2010] HCA 4 at [13] & [14] and also within s 65DAA, the Court must consider both questions, namely
·Is it in the “best interests” of a child to spend equal (or substantial and significant) time with each parent pursuant to s 60CC? and secondly,
·Whether it is reasonably practicable for the child to spend equal (or substantial and significant) time with each parent pursuant to s 65DAA(5)?
When considering s 65DAA(1), MRR & GRR at [15], said that the focus was on –
…the reality of the situation of parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
(my emphasis)
The High Court previously considered the issue of relocation in AMS v AIF [1999] HCA 26 (‘AMS v AIF’) where at [47] and [191] the High Court rejected the proposition that a parent needed to demonstrate “compelling reasons” for the relocation of a child’s residence.
In AMS v AIF, Kirby J eruditely said this about the issue of relocation –
111.Behind the constitutional and other legal arguments of the parties lies a difficult problem. … On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent whilst it is growing up. On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.
144.… a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides…
145.… One of the objects of modern family law statutes … is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents...
(my emphasis and footnotes omitted)
Relevant to the parties’ various proposals, which will be canvassed shortly - in U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416, Gaudron J said this -
37.It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF
38.In the present case, the need to give proper consideration to the wishes of the parent was not the only reason why each of the proposals had to be separately evaluated. Rather, in a context in which each of the proposals involved some disadvantage for N (the child), as the trial judge acknowledged, a determination could only be made as to what was in her best interests by separately evaluating each of them.
(my emphasis and italicise with footnotes omitted)
In Taylor & Barker [2007] FamCA 1246 the Full Court expressed the following about the approach to be taken to disputes involving relocation:
62.…given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.’
In Star & Duggan [2009] FamCAFC 115 at [38], the Full Court set out a ‘logical approach’ in addressing the relevant legislative provisions at [38], being 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.
In Hepburn & Noble [2010] FamCAFC 111 the Full Court preferred this approach over the previous approach in A & A: Relocation Approach (2000) FLC 93-035.
The Full Court in Franklyn & Franklyn [2019] FamCAFC 256 at [27]-[28] said this:
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] HCA 36; (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] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (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).
(my emphasis)
There is no legislative definition of ‘relocation’ and ‘relocation cases’ are not a special category of case and there is no presumption for or against a parenting order involving relocation.[3]
[3] Morgan & Miles [2007] FamCA 1230 at [72] & [73]
If after considering and rejecting firstly equal time and secondly ‘substantial and significant’ time, then the allocation of less than ‘substantial and significant’ time to one parent is ‘at large’.
Mandatory and prohibitory injunctions can be made by me for the welfare of a child that affect the parties: see s 68B.
Section 65Y of the Act sets out the circumstances in which a person can take a child outside of Australia, including without the written consent of both parents.
THE EVIDENCE
Where required and with consent, leave was granted by the Court for the late filing of trial material.
Statements of facts as set out below should constitute findings of fact unless otherwise expressed.
In exercising my discretion as to the weight I should otherwise give to the reports[4] prepared by Ms F (‘the court child expert’) and/or the oral evidence of the court child expert, I was satisfied that the court child expert was open to persuasion about different scenarios that were put to them in cross-examination. The court child expert gave thoughtful and consistent evidence. When giving opinions, the court child expert’s analysis was clear from the identified facts/propositions put to them. There was a clear and logical pathway to the conclusion/s formed and/or expressed.
[4] References to the contents of the various reports and paragraph numbers shall be identified with ‘FR’ for the family report dated 16 September 2021, ‘SR’ for the specific issues report dated 19 October 2022 and ‘AFR’ for the addendum family report dated 23 January 2023.
I have read all the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
62….A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Before setting out a chronology of the parties’ circumstances I will canvas their proposals.
THE PARTIES’ PROPOSALS
As can sometimes happen in matters involving complex issues, the positions of the parties changed over the course of the trial.
In this case, the mother unilaterally re-located the child to south-east Queensland late last year and this event caused varying degrees of reflection on the outcomes I was invited to make.
The father’s proposal ultimately became aligned to the ICL’s proposal[5] such that –
[5] Exhibit ‘ICL 7’
·The father to have sole parental responsibility for X provided that in the exercise of his discretion he seek and consider feedback from the mother before ultimately making a decision;
·X to live with the father;
·Mandatory injunctions to be made to support X’s transition to the father’s household;
·X to be enrolled at a local primary school;
·X to spend no time with the mother for a period of eight weeks after which X spend time with the mother for regularised specified periods of time that reflect where the mother lives and includes significant blocks of school holiday time;
·X to have communication twice per week with the parent she is not spending time with twice per week;
·Changeovers to occur either at school or the McDonalds restaurant at Suburb C (but the father proposed that for the first 12 months, the parties’ use a nominee for the changeovers);
·Mandatory injunctions to be made to support communication between the parties;
·Prohibitory injunctions to be made to avoid X’s exposure to parental conflict and unnecessary changes to X’s regular health care provider/s;
·X to have an Australian passport and be able to travel overseas.
The mother altered her long-held position of “no time” to incorporate an alternate position should the Court not find that the father posed an unacceptable risk of harm to X. In summary the two options looked like this:
Primary Position
·X to live with the mother;
·The mother to have sole parental responsibility;
·X to spend no time and no communication with the father;
Alternate position
·X to live with the mother in New South Wales;
·The mother to have sole parental responsibility for X provided that in the exercise of her discretion she seek and consider feedback from the father before ultimately making a decision;
·Both parties to be restrained from re-locating X’s residence to more than 200km away from Town E, NSW;
·X to initially spend supervised time with the father for three months for a minimum of two hours each fortnight, and then on an unsupervised basis starting with alternate Saturdays and building to alternate weekends (Friday to Sunday) along with special occasions but no significant blocks of school holiday time;
·X to have communication twice per week with the parent she is not spending time with;
·Changeovers to occur either at school or at a midpoint location between the parties’ homes being either a McDonalds restaurant or another agreed place;
·Mandatory injunctions be made to support communication between the parties;
·Prohibitory injunctions be made to avoid X’s exposure to parental conflict and unnecessary changes to X’s regular health care provider/s;
·X to have an Australian passport and be able to travel overseas.
·X to attend school by the start of 2024.

The ICL’s application for costs was for each party to pay $7,004.50.
In order to consider the various applications, it is necessary to set out a chronology of the significant events in the parties’ circumstances. There may be other significant circumstances that I miss in the chronology which are picked up elsewhere in this decision.
CHRONOLOGY
In 1964 the father was born and he is now 59 years of age. The father is of Country G descent and he has five (5) adult children, who live in Country G.
In 1978 the mother was born and she is now 44 years of age. The mother is Aboriginal and she identifies with the H Nation at Town J.
Ms B was born in 1999 and she is now 23 years of age.
In 2016 the parties commenced their relationship.
In 2017 when she was about 17 years old, Ms B said that the father had come up behind her whilst she was at the kitchen sink. She said that she felt someone (the father) brush up behind me, carefully moving their body from right to left over my behind. Nothing was said between the two and Ms B withdrew to her bedroom and at the time, Ms B did not say anything about the incident to the mother.[6] For ease of reference I shall refer to this event as “the kitchen sink incident”. The father denied the allegations.
[6] B-[28]
During 2017 the mother said, and the father denied, that the father committed various physical acts of family violence causing injury. When asked if she had sought hospital treatment for the injuries, the mother could not remember and there was no relevant business health record tendered.
During that same year, the parties attended sex therapy with Ms K to assist the father manage what he says (and I find) to be difficulties in coming to terms with the breakdown of his lengthy marriage which caused him to continue engaging in on-line communications through dating apps despite being in a committed relationship with the mother.[7] In making that finding, and noting the mother’s version of events was tested, I found the father’s evidence to be consistent and compelling and I was unable to make any finding that the father has or had a “sex addiction” or engaged in any inappropriate behaviours (whether sexual or otherwise) with persons under the age of 18 years. I accept the father’s evidence that he has sought counselling to manage his past addiction.
[7] In broad terms, the father’s evidence was consistent with what he told the family report writer during the family report interviews in 2021: see FR-41
In 2017 X was born and she is now five (5) years of age.
In 2018 the mother said that she accessed the father’s phone by using his password and included within the internet search engine were the phrases “child porn” and “pretty young girls”.[8] In summary, the father said that the mother had refused to return his phone to him, that he has never accessed child pornography and challenged the veracity of the search history which consisted of a photograph of the open face of a mobile phone that was undated.[9]
[8] K-[18]
[9] See K at annex ‘C’
The mother agreed that the she had the mobile phone and denied “manufacturing” the search engine entries as depicted within annexure ‘C’ to her affidavit. The mother’s evidence about whether she had the capacity to manipulate the search engine was confusing because at one stage she said she did not have access to the father’s password (in order to open the phone) and had only accessed it because he had left the screen open but then said that later in the relationship she did (at times) have his password but that he changed it regularly.
Given the competing evidence and the lack of any other evidence to corroborate either party’s version of events, I am unable to make any findings against either party.
In 2018, the family (including Ms B) went on a family trip to Country L, which for ease of reference I shall refer to as “the Country L incident”. In her trial affidavit Ms B said that during the holiday –
30.…. [Mr Weekes] came towards me within arm’s reach. [Mr Weekes] used his left hand to reach out and grab my breast that was covered by only a towel. I did not give consent for [Mr Weekes] to touch me. I immediately stepped backwards to get away from [Mr Weekes] and said words to the effect of: “No, don’t do that”. [Mr Weekes] left our room without saying anything.
Ms B said that at the time, she did not disclose the incident to the mother. The father denied the allegations.
The events at the M Venue in 2018 were explored, with the mother denying that she had thrown an in-room telephone handset at the father, striking his head and causing an injury to his forehead which he says was depicted in photos annexed to his trial affidavit. The mother said (and the father denied) that he had engaged in family violence against her that night which caused her to climb onto the outside of the balcony railing of their room. It was common ground that the mother had climbed outside of the balcony railing and that the father had brought her back onto the balcony, that alcohol had been involved and that there had been at least a verbal fight between the parties. Given the competing version of events I make no other findings.
On 4 October 2018, the parties separated. When asked about the father’s involvement in the care of X during the relationship, there was a long pause before the mother answered the question by saying “it was limited”.
Whilst the parties gave varying accounts of the time that X initially spent with the father post-separation, they ultimately appeared to agree that by February 2019, X was spending unsupervised overnight time with the father (albeit the regularity of that time remained in dispute).
In mid-2019, tension between the mother and father was rising and there is no doubt that the father acted inappropriately in the messaging he sent to the mother[10] which he says was based on misinformation he was receiving from a third party on a background of him still having romantic feelings for the mother which he says, at times, translated into them engaging in sex post-separation. The father appropriately conceded that his communication with the mother at the time was not respectful and was abusive.
[10] See for example K-[25] & annex ‘E’
In 2019, when Ms B was 19 years of age, both she, her partner and the father separately attended the same party. In an ADVO application lodged three (3) years later, the father is alleged to have behaved in a manner that caused Ms B to feel uncomfortable and confused. For ease of reference, I shall refer to this incident as “the party incident”. The events of that evening were tested and I accept the father’s explanation for the import behind his text messages to Ms B. He told the Court that he was surprised that Ms B was still with the same man (Mr N) that she had been dating when the mother and the father were still in a relationship. This was because the father had seen how badly Mr N had treated her. He told the court that Mr N had “never treated her right” and my recollection is that the father had told (at least) the mother that in his view “it was not right, the way he (Mr N) is treating your daughter”. Overall, the presentation of the father’s evidence about his conduct at the party was merely reflective of his sadness about what he perceived to be the harmful personal relationship that Ms B had with Mr N. The father’s unchallenged evidence in cross-examination was that he treated Ms B as if she was his daughter.
During 2019 and into 2020, it was common ground that the parties were using Ms B as an intermediary to arrange time when X could see the father.
In 2019, the father says that the mother commenced a relationship with Mr O and from then on, time with X became more difficult to arrange. The mother agreed in cross-examination that Mr O was a romantic interest “for a very short time” in her life.
The mother denied that her relationship with Mr O was the reason that she suspended X’s time with the father in late 2019. The mother said that the reason she suspended time for about three months was because she had become concerned about the father’s extremely erratic and dangerous behaviour including –
(a)Sending the mother a photo showing X in the front seat of a car (when she should have been in a child restraint in the back seat);
(b)Sending the mother a message which read –
Dramatic you are so full of yourself and everything you believe you don’t even hear what’s been said outside of [Ms Kendrick] world do you
My daughter has anxiety already and mothers like you degrading fathers are the reason they commit suicide…you know what’s that about don’t you
In 2020, X commenced attending an early education learning centre for two (2) days per week.[11]
[11] FR-85
In February 2020, following an attempt by Ms B to mediate time between X and the father[12], the father’s response was not respectful at all. In cross-examination, the father explained that he was acting out of frustration after enduring (what he says) was his experience during the relationship of having his parenting capacity challenged or in his words, being “poked and prodded” about how to bring up X. The father’s explanation does not justify his communication with Ms B but in my view, this must be seen through the prism of the father’s experience of having X’s time with him unilaterally suspended by the mother in late 2019.
[12] B at [27] & annex ‘F’
In March 2020 the parties attended mediation and unsupervised time with X resumed. The mother appeared to suggest that she had only agreed to time because of pressure she felt during the mediation process.
In March 2020, at a changeover, Mr O and the father had a verbal altercation. The mother made allegations against the father including that he had threatened her to not to bring anybody to the next changeover especially a new boyfriend or else she would be sorry. At the end of the weekend, when returning X to the mother on 26 March 2020, the father asked an associate to attend the changeover with him (he says for protection). The mother brought Mr O because she felt frightened. There was another unfortunate verbal confrontation between Mr O and the father and this was the last time that X spent any sort of meaningful time with the father. It was common ground that X was exposed to the confrontation, albeit the extent of it was unclear. The father said that when X had been in his care X had not wet her pants and that she didn’t suffer from anxiety.
The mother said that following this weekend visit, X started having night terrors and regularly wetting her pants. It appears this pattern of behaviour was short-lived. When asked by me if it was possible that this behaviour could have been triggered by what X had been exposed to during the changeover, the mother agreed it was possible. In response to a question about X not having displayed any fear of the father, the mother said that “No after that time, there were changes.”
In her trial affidavit, Ms B said at paragraph [30] that in March or April 2020 Ms B disclosed the Country L incident to the mother. At paragraph [33] of her trial affidavit, the mother said that her daughter had made two disclosures, firstly about the kitchen sink incident and then in regards to the Country L incident where in particular, Mr Weekes approached Ms B and grabbed her breast through the towel. In combination this evidence was inconsistent with what Ms B said in the witness box which was in effect that the father had tried to touch her breast but that she had stepped back before he could.
In May 2020, the mother attended Town J Police Station and it was reported that she told police that she wanted to stop X from visiting the father and had been advised to obtain an AVO. Having reviewed screenshots of messages between the parties from March 2019, the police observed that no offence had been perpetrated and could find no basis for the fear that the mother asserted that would warrant an apprehended domestic violence order (‘ADVO’) being taken out by them against the father for the mother’s protection.[13] The mother said she thought she may have been acting on advice from her domestic violence health care worker but couldn’t remember, and that the reason she went was because she was fearful for X and for her life because of the threats the father had made and the abuse she had suffered.
[13] Exhibit ‘F5’
On 10 July 2020 the father commenced these proceedings.
The next day, the mother alleged that the father had followed her car - in which she, Ms B and X were travelling in the Suburb P area and that in doing so he had driven up close, raised his arm and extended is pointer finger to make a pistol with his hand, pretending to shoot her.[14] As a result of her complaint, that same day, a provisional ADVO was issued by the NSW Police for the protection of the mother against the father. Ms B supported her mother’s recollection. In July 2020, the provisional ADVO was made into an interim ADVO by the City Q Local Court.
[14] FR-68
In September 2020, the mother filed a response to the father’s proceedings which sought that X spend unsupervised overnight time with him if there was no unacceptable risk posed by him.
In November 2020, the mother saw her social worker Ms R and Ms B was also in attendance.[15] Ms B was recorded as being “terrified” of any impending legal dispute between her mother and the father regarding X. Ms B was then recorded recounting the “kitchen sink incident”, “the Country L incident” and “the party incident”. Ms R’s file note records Ms B saying that the father had “attempted” to touch Ms B during “the Country L incident”.
[15] Exhibit ‘F8’
In cross-examination, Ms B confirmed that she could remember exactly what happened during the Country L incident however she then gave varying accounts of what actually happened ranging from there being no contact to a gentle touch (because in both scenarios she had stepped back when he had reached out his hand). Her oral evidence was inconsistent with her police account and her trial affidavit, as well as with what her mother recorded her saying to her when she first made the complaint. There was some consistency between her oral evidence and what she had described to Ms R.
When asked to explain why she hadn’t previously tried to stop the father spending time with X given her concerns about his behaviour towards her, Ms B said that it was only after she had spoken to her counsellor that she realised it wasn’t right and she had concerns for X’s safety. Ms B said she was scared and had held onto it for so long.
In January 2021, the interim ADVO was varied by the City Q Local Court with the “no contact” condition remaining in place and a defended hearing set down for 28 June 2021.
On 5 February 2021, the father’s solicitor (at that time) wrote to the Police about the ADVO proceedings. The contents of the letter[16] were put to the mother which were to the effect that subpoenaed phone tower records disproved the mother’s version that the father could have been located in close proximity to her at the time of the alleged incident and that in light of this and other information, either the ADVO should be withdrawn or an interim ADVO be made on a “no admissions” basis for another three months only and in the event of no other adverse events, then at the conclusion of this time, the proceedings should be dismissed. The mother rejected the contents of the letter and appeared to be confused about why the ADVO proceedings were ultimately dismissed without a final ADVO having been made for her protection.
[16] See W at annex ‘K’
In 2021, X’s attendance at an early education learning centre increased to three (3) days per week and the court child expert noted that X was reportedly doing extremely well.[17]
[17] Family report dated 16.09.2021 at FR-85
In June 2021, police records show that an agreement was reached between the mother and the father for the interim ADVO to be extended by a further six (6) months without the hearing proceeding, and if in the meantime there were no further incidents, then the interim ADVO would expire and the proceedings withdrawn. There was some controversy about the circumstances around the events on that day, however the father said (and I accept) that the reason why the application was ultimately withdrawn was because the father had been able to establish through mobile phone tower records that he had been travelling (for work purposes) between places hours away from where the mother said she saw him. The father’s evidence was supported by business records, in light of which the mother’s alternate explanation (and her insistence about the father having stalked her) was unsatisfactory.
As identified earlier, In December 2021, Ms B made a report to the Department of Communities & Justice (‘DCJ’) about the father’s conduct towards her.[18] This evidence was inconsistent with the mother’s insofar as she says that she helped her daughter file a report with DCJ over 12 months’ earlier.[19]
[18] B-[33]
[19] K-[35]
On 16 September 2021, a family report was produced by the court child expert (‘the 2021 family report’). At paragraph 41, the court child expert observed that a review of Ms K’s notes revealed that –
41.…..There is no descriptions or references to the father engaging in deviant or violent sexual behaviours as claimed by the mother. Given that the couple were seeing a sex therapist where the mother is reporting the father’s sexual behaviours, it is extremely surprising the mother did not make mention of sexually deviant behaviours during her assessment session with [Ms K] but has subsequently made reports elsewhere…..
My recollection is that this tranche of the 2021 family report was not the subject of cross‑examination at all. Certainly no contrary subpoenaed material from Ms K was relied upon by a party to refute the observations of non-disclosure by the mother.
As recorded at paragraph 42 of the family report and then again in cross-examination, the father agreed that he had told the court child expert that the mother was the “the best mother a child could have” and said that his concern was for his child’s mental health. Although the two responses may appear incongruous, as demonstrated by his naivety when it came to the nature of his interest in his home at Suburb S (he thought he was in the process of buying it whereas on paper he is a tenant), I found the father to genuinely hold the view that the mother was a good mother except insofar as her inability to support his relationship with X and to otherwise manage X’s apparently spiralling emotional or psychological symptoms which of late has meant that X has declined to return to a formal education setting (being pre-school) and so this year is being home-schooled instead.
The mother agreed that paragraph 59 of the 2021 family report was a fair summation of what her views were then, and that these views remain the same now and this paragraph is set out below –
59. The mother believes that her proposal is the best interests of the child because she said the father was a violent, abusive, and sexually deviant person who would place [X] at extreme risk of harm if she were to spend time with him. The mother said she did not think supervised time would offer [X] the necessary safety from the father. She said the father poses a physical risk to [X] because he has threatened to take her away from the mother and live in [Country G] with [X]. She said the father has never wanted to spend regular time with [X] and has been in and out of her life since she was born. The mother said she did not think the father should be permitted to have any communication with [X], and stated she is, “protecting [X]’s innocent mind.” When asked by the Family Consultant how [X] may come to know about her father and her own identity, the mother said she will tell her about the father when the time is right, and she will seek advice from professionals. She said when [X] is old enough, and smart enough to want to seek information about her father she will find the right information to give her about her father.

In cross-examination, the mother that “150%” the father is still a sexual deviant.
X was three (3) years of age at the time of the family report and was not interviewed nor observed on-line and this was identified as a significant limitation to the report.[20] The court child expert recommended that X live with the mother and that the mother have sole parental responsibility. The court child expert recommended that if the court found that the father did not pose an unacceptable risk of harm, then alternate weekend time (two nights) should be facilitated between X and the father, with time increasing to three nights once X commences Term 2 in her kindergarten year.
[20] FR-83
On 9 November 2021, consent orders were made including for X to spend time with the father, supervised by T Contact Centre for no less than two hours per fortnight. The mother was legally represented.
On 16 December 2021, the prosecution withdrew the ADVO proceedings relating to the mother and the father and the interim ADVO expired.
In February 2022, Ms B made a formal complaint to NSW Police and family violence proceedings were commenced.[21] As a result of advice from Town J Police, Ms B made a complaint to police in Country L, however she was informed that there was nothing they could do because of a jurisdictional issue.
[21] B-[34]
Within the ADVO application is a statement of facts which relate to the “kitchen sink incident” some five years earlier when Ms B was 17, “the Country L incident” a year later and “the party incident” when she was 19. The language used to describe the “Country L incident” in the statement of facts is remarkably the same as that contained within the trial affidavit of Ms B. Both versions (as well as what the mother recalls being told by her daughter[22]) convey that the father had grabbed the breast of Ms B and then Ms B has stepped back and said “no, don’t do that”. In cross-examination Ms B rejected that her evidence conveyed that the father had actually touched her breast but rather that when he attempted to do so, she had been able to step back and avoid contact. The contradictory versions of what occurred during “the Country L incident” were troubling, although I acknowledge that the scope of my enquiry is very different to that expected in other jurisdictions dealing with the same allegations.
[22] K-[33.b.]
On 7 March 2022, the Court noted that the mother had not facilitated supervised time between X and the father and had given no indication that she would engage with T Contact Centre. On that same date the matter was set down for trial later the same year and a specific issues report was ordered.
In mid-2022, the mother withdrew X from U Childcare Centre and enrolled her at Town J pre‑school (gradually increasing from one day to three days per week).[23] The mother’s evidence was that X adjusted to this new situation and within two weeks was enjoying her time there.
[23] W-[75]
On 5 September 2022, X was meant to spend professionally supervised time with the father, facilitated by T Contact Centre. Exhibit ‘ICL4’ is the observation notes for that day. In summary the observation notes recorded that –
(a)With X at least in the vicinity (although it is unclear what she may have seen or heard), the mother attempted to engage in a conversation with the supervisor about the deficits in the father which included bringing out various documents in support of her assertions;
(b)The mother agreed with the supervisor that the changeover of X from the mother to the supervisor should be quick. This did not transpire insofar as having seen X “confused”, the supervisor asked her if she wanted to play with her and her dog but the mother and Ms B then sat down near X and X moved to them. The supervisor then got down to X’s eye level and asked if would be okay (for her to play with the supervisor and her dog) and X responded “but mum is sad” and at that point, both X and the supervisor turned to the mother who appeared to be upset but “hid it” and the mother then reassured X that she was okay and that X would be okay with the supervisor. The mother and MS B remained seated and did not appear to be intending to move away and so the supervisor removed X from eyesight of her mother and Ms B but then Ms B came back into view and there were further text message communications between the supervisor and the mother to get the mother and Ms B away from the area;
(c)The supervisor spoke to X about the father and was told by X that she was not allowed to see him and that her mother had said that he was a “bad man”, and that her only memory of the father was when her parents and “sissy” (Ms B and X were all in the car and the mother was yelling at the father;
(d)The supervisor asked X what the mother had told her about “today” and about was going to happen today and X was reported to say –
“Mum said I need to cry and cry and tell you that I want Mummy and you will take me back to her.”
(e)X recognised the father when he approached her and started crying, asking for her mother and in the face of X’s distress, the visit did not proceed.
(f)Once X had been returned to the mother, the father informed the supervisor that he had seen the mother and Ms B sitting on a seat out the front of a venue across the road and had watched him approach the park (where the visit was to take place). The supervisor recorded that this location matched the direction from where the mother had approached to collect X. The father went on to say that from where the mother and Ms B had been, they would have had a view of the park but the supervisor recorded that she had not seen them from where the actual supervised visit was meant to occur.
(g)It was common ground that X had wet herself.
In cross-examination about this event, the mother said that –
(a)she could not recall telling the supervisor that the father was a “liar, manipulator and not a nice person” but it was possible that she could have;
(b)she did not agree with everything that the supervisor was reported to have said to her and Ms B but acknowledged that “they left us” (as in the supervisor and X) and that she understood the intention was that they (the mother and Ms B) be away from where the supervised time was to occur and that X had been able to see Ms B during the attempted visit with the father;
(c)it was possible that X had heard the mother say words to the effect that X was not allowed to see the father but denied telling X that the father was a “bad man”. The mother went on to acknowledge that she has never really said anything positive about the father to X, nor has she said anything negative but rather she just doesn’t saying anything;
(d)she had yelled at the father as recorded by X and that it was not a good thing to yell at the father in front of X;
(e)she refuted that X had the capacity to express herself in the way that was recorded, which was “Mum said I need to cry and cry and tell you that I want mummy and you will take me back to her.”.
(f)she had told X that it is okay to cry and that she did not want X to grow up thinking that she cannot express her feelings.
The mother said that since that first visit, X was refusing to return to pre-school and no longer attends formal education, but has commenced kindergarten via home-schooling. The father said that X had not experienced anxiety when she had previously been in his care but that “she had just about chewed her thumbs off” at the supervised visit in September 2022.
In September 2022, the mother sought medical advice from her physician which resulted in a referral to psychologist, Dr D for “opinion and management”.[24] At the time, the reason for the referral was because of the mother’s concerns about a deterioration in X’s behaviours (arising from the first supervised visit) and the impact on X’s development from ongoing visitations between X and the father. The physician prepared a mental health treatment plan (‘the MH Plan’) which identified the mother’s reasons for presenting as including increased anxiety and worry about what the father could potentially do to X and the recent supervised visit which is causing the worsening of her symptoms because she is worried about the wellbeing of her children. The mother’s history records a diagnoses of depression, anxiety and post-traumatic stress disorder (which historically was managed via social worker intervention). In addition the MH Plan records the mother has having a pre-disposing factor of domestic violence which continues to be an ongoing stressor due to unresolved legal proceedings and that the mother is beginning to suffer mental health issues and suffers concurrent chronic back pain.
[24] Exhibit ‘F6’
In cross-examination it became apparent that X is also obtaining psychological assistance from Dr D and that despite the move to Queensland, Dr D is still engaged to treat X, with the next appointment to occur in February 2023. The mother said that it is about a 12-hour drive from her Region V home to Town J and that when they are due to see Dr D they stay for about a week to spread out the travelling.
On 6 October 2022, the second supervised visit was supposed to occur and a further observation note was made by the supervisor from T Contact Centre.[25] This time Ms B was carrying X and the mother followed with another person that was not introduced to the supervisor. As soon as the supervisor said “hello”, X reportedly said that she wanted to go home and asked “sissy” to do so. The mother said “Remember we brought you here to spend time with [Mr Weekes] and [W]”. X continued to cry and remained distressed and the visit was terminated by the supervisor. In the lead up to that visit the mother said that X kept saying that she didn’t want to go.
[25] Exhibit ‘ICL5’
On 19 October 2022, the court child expert produced a specific issues report (the 2022 specific issues report). It was common ground that neither the mother nor X participated and that at the time, the mother did not reach out to the court child expert to explain why or seek an alternative interview. Whilst I have no reason to doubt what the mother says was her reasoning for the failure to attend, I record here my unhappiness with the waste of court resources brought on by the mother’s failure to engage. At paragraph 19 of the 2022 specific issues report, the court child expert observed as follows –
19. It is highly concerning that the mother has repeatedly avoided efforts to facilitate [X]’s re- introduction with father against Court Orders. Her actions demonstrate that she is unwilling to facilitate [X]’s relationship with the father. As [X] was so young when she last spent time with the father it is unlikely she has many clear memories of her own about him and her perceptions of the father are mediated through the mother and half-sister [Ms B]’s views.
The recommendations of the court child expert at that time were for X to live with the mother and spend time and communicate with the father in accordance with her wishes and that whilst the mother should have sole parental responsibility, the father should be kept informed and have access to information about his daughter’s development.
Despite the orders of the Court made in November 2022, the supervised visits of 17 December 2022 and 14 January 2023 did not proceed.
On 23 January 2023, an addendum to the 2022 specific issues report (‘the 2023 addendum’) was produced and this time the mother and X participated. Observations took place with those two persons as well as with Ms B. In the evaluation section of the her report, the court child expert said this –
27. [X] presented as an extremely shy child, even with both her mother and sister present. From her presentation it is easy to imagine how difficult it would be for her to cope with supervised time with the father. The Family Consultant suggests that the transition from mother to spending time with father would have to be undertaken by the mother or sister themselves. (This does not appear likely, however).
28.The Family Consultant’s view remains that [X]’s interaction with others, including the father, will be strongly mediated through her mother and sister’s views, attitudes and even non-verbal (behavioural) responses.
29. [X] would benefit from access to community -based activities to help develop her independence and self-confidence. These skills are the basic foundations for successful friendships and strong mental health.
The recommendations of the 2022 specific issues report were confirmed within the 2023 addendum. In cross-examination the court child expert stood by her views about the lack of risk posed to the father’s parenting capacity as identified at paragraph 73 of the 2021 family report.
I heard from the court child expert that as X reaches early adolescence (about 14 years of age) she (like her peers) is likely to want to explore her identity and if she is still holding negative views about the father without any independent positive memories of her own, then –
(a)she may completely reject the father;
(b)hold a negative sense of herself and internalise a view that she is not good enough;
(c)clash with the mother when she is unhappy with a decision the mother makes by saying that she is going to find her father as he wouldn’t do this to me.
I heard from the court child expert that X has an anxious intense connection with the mother which may manifest itself as separation anxiety into the future.
The court child expert opined that if X’s relationship with the mother maintains its current intensity, then there is a risk of X developing separation anxiety. This concern can be seen through the prism of the mother’s medical history which included, as of late 2022 an identification of the mother having symptoms of depression. Concerningly, and despite the passage of time between when X last saw the father (which the mother says was the trigger) and despite her having the benefit of therapy with Dr D; the mother is reporting that X feels overwhelmed by all the other people in a mainstream school (and won’t go) and X has a fear of public places.[26] In addition, X has been unwilling to engage in any extra-curricular activities and there was no persuasive evidence before me to suggest that the mother has the capacity to support X doing so in the future even with the intervention of Dr D.
[26] see paragraph [13] of the mother’s second affidavit
Given the evidence before the Court, the court child expert was invited to discuss the long term effects of little children with high anxiety and separation anxiety and said that they –
“often have troubles with friendships, in that they are trying so hard to keep a friend that, that it becomes difficult. They worry at school all the time, they worry when they are at school they worry about what’s happening at home with mum, they often… um… it’s not uncommon with little kids between…. 5 and 9, 8 or 9 to school refuse if they get…so anxious and it’s not addressed whilst all of that anxiety is happening, children..um… don’t learn to… well actually, they learn to tune out to their bodies because their bodies are so uncomfortable, because feeling anxious all the time is not just a mental thing it is quite a physical thing, and so, you know children are biting their nails, and wriggling and they’re kicking their feet, and they’re feeling sick in the tummy… some kids will often get so anxious that they are vomiting, so that can become a habit too. They learn if they vomit at school they go to sick bay, and they don’t have to be exposed to anything that becomes anxiety producing and if they continue to vomit then mum comes to pick them up from school and that can become a real habit. So it is a condition that should be addressed.
If there was to be a change of residence, the court child expert considered that a two-month hiatus away from the mother could potentially manage the risks to X from the loss she will feel, whilst also giving the father sufficient time to embed in X positive experiences about him and his household.
I heard from the court child expert that if a child has no relationship with one parent then - –
(a)The child may develop a negative sense of self because if X (in this instance) thinks there is something wrong with the father (that he is a bad person) then she can internalise that and think that there is part of her that is unworthy and not good enough;
(b)The child may choose to seek out the parent they have no contact with because they are unhappy with decisions made by the other parent and vote for what they may perceive as greener grass with the result usually being unsuccessful;
(c)Depending on the family environment, cannabis can become attractive as a way to isolate themselves.
I have weighed up the court child expert’s views through the prism of her own acknowledgment that she knows very little about X. Nonetheless, overall, the court child expert was unable to support X transitioning from the mother to the father but conceded that she did not have all the evidence before her, as I do.
The court child expert was clear to say that to lose contact with the mother and Ms B via a hiatus would likely see X “unable to cope” in the short term as she would be grieving, but that going to school might be a “good stepping stone” for her.
If a change of residence was ordered and there was a hiatus, the court child expert disavowed any audio-visual or other communication between X and the mother’s household in the meantime because it would just exacerbate X’s sense of grief and loss.
X was described as extremely shy and that she would benefit from engaging in community activities. The court child expert was asked if there was anything that could be done to assist X in the event that the Court ordered a change of residence and responded by saying that X is an intensely shy and quite child and that it took “50 minutes for her to warm up”.
When asked about the benefits of X living with the father, the court child expert said that she thought it would be “very difficult on her to change residence.” The court child expert observed that X has no resources or skills to manage her own distress and no capacity to settle as she is too little to be able to comfort herself. The court child expert observed that X has no relationship with the father and worse, no “permission” from the mother or Ms B to spend time with or enjoy spending time with the father. She acknowledged the value in children having a meaningful relationship with both parents where there was no risk but here, the court child expert was very concerned about how X would manage if she had to live with the father, given her lived experience in the mother’s home.
When asked what risks were posed to X if she had limited exposure to her Country G culture I heard from the court child expert that the long term impacts for X included that as she reached adolescence it would be more likely that she would start exploring her sense of identity and reach out to the father and her culture.
The court child expert was asked to reflect on her reports about the prospects of the mother facilitating time between X and the father and she was clear to say that there was no hope and if now, the mother was to say that she could support such a relationship, the court child expert was unwilling to accept that this was plausible given her experience of the mother. Frankly, having seen the mother in the witness box and having read the evidence, I agree with that observation.
The court child expert was of the view that X was “terrified” of the father and that the mother and Ms B were responsible. When asked, the court child expert said that if X lived with the father and a 3-month hiatus was imposed on her having any contact with the mother, that this would have a severe psychological impact on her.

X apparently has a strong attachment to her extended maternal family who mainly live interstate now that the mother has moved.
X has no relationship with Ms EE or any paternal family members.
Section 60CC(3)(d)
As submitted by the mother’s counsel, “There is not much for [X]” out of this dispute. Either way she has or will be subjected to a significant change in circumstance which will lead to harm for her.
The mother must consider that X is sufficiently resilient to cope with change because she has taken X away from her place of cultural heritage, away from her maternal family including the maternal grandfather whom she described as being in their lives daily, away from her “sissy” and away from the environment that she has become familiar with.
Overall, both of the mother’s proposals would see little change to what X is experiencing now, except if I prefer the mother’s alternative proposal which by inference must mean that the mother considers that X can adjust to spending time with the father (over time and starting with supervision).
The proposal of the father and the ICL poses risks too. The court child expert was very concerned about the short-term impacts for X of being placed with a person she fears and with whom she has no relationship. I have had serious regard to the concerns of the court child expert given her forensic exploration of this family’s circumstances. It seemed to me that some of the harm could be ameliorated by the hiatus being for less than three (3) months as was put to the court child expert in cross-examination.
I also acknowledge that the father is untested, but my observations of him in the witness box allow me to find that he is an empathetic, insightful human being with much to offer as a father to X. The father has taken tentative steps towards engaging with third parties who can assist X in her transition including a mindful recognition of her indigenous heritage.
Section 60CC(3)(e)
Despite the mother’s alternate proposal, the evidence satisfies me that it would be impractical to order that X spend time with the father should she remain in the primary care of the mother. This is for two reasons –
(a)Firstly, the mother’s attitude towards the father has meant that for three years the child has been exposed to a household that is negative towards her dad and any role he may play in her life and there was no evidence that supervision (having failed in the past) would be capable of working in the future;
(b)Secondly, the mother’s alternate proposal is that she would return to live in NSW and that neither party would live more than 200km from Town E. Potentially this could see the mother living 200km away from Town E and the father 200km in the other direction away in Town E with the child expected to travel significant distances each alternate weekend to spend time with the father. Even if the distance is simply approximately 200km in one direction (based on the father staying where he is), that means X potentially travelling several hours every second weekend which in my view is not a practical long-term reality for her to have to endure.
The father says he will remain in the Town DD area and the proposals supporting time with the mother take into account the practical effect of any geographical issues. Whilst the mother may be unemployed, she has been able to travel frequently between the Region V area and the Town J area and there was no evidence that she could not do something similar in order to spend time with X.
Section 60CC(3)(f) and (i)
At times the father has engaged in disrespectful communications both with the mother and Ms B. His evidence allows me to find that he is capable of promoting a meaningful relationship with the mother and Ms B. In support of that finding is his uncontroversial statement to the court child expert that the mother is a “good mother” and that he viewed Ms B as his daughter. There was no evidence that he has ever expressly exposed X to any ill-will he may have towards the mother and his demeanour in court suggested a reflective and thoughtful person who is very conscious that he has a fragile and vulnerable child who needs to be supported in her relationship with those she loves.
I have already made findings about the risk of psychological and emotional harm posed by the mother, not only because of her failure to promote a meaningful relationship but also because of the anxious attachment that X has with her that appears already to show features of X have separation anxiety. In that regard I accept the court child expert’s evidence about the harmful effects of these circumstances and I am satisfied that even if I could make Orders to protect X, I have no confidence that the mother would comply with them given her past behaviours about supervised time.
Ms B has very strong negative views about the father and I am satisfied that she has conveyed those attitudes to X. There was no compelling evidence that she would stop doing so in the future. Ms B has been present at both attempts at supervised visits and says that she has supported time being spent but on both occasions the visits were unsuccessful. These events demonstrate that even if there was evidence to suggest genuine attempts were made to support X spending time with the father in a safe environment, they failed.
Section 60CC(3)(g) & (h)
X has an indigenous and Country G background.
I am satisfied that there are limitations in how both parents propose to support X’s indigenous culture.
On one hand, I have the mother who has moved 12 hours away from the location where X’s mother says her mob is located although I note the mother says she has family supports in the Region V area.
Weighed in favour of the mother’s commitment to support X’s indigenous heritage is her own connection to culture and also practical measures such as arranging video communications between X and another family member to learn traditional dance.
I accept the evidence of the father about his willingness to support X’s indigenous heritage which is reflected in part by his tentative engagement with the FF Centre (albeit this centre is located some distance from the seat of X’s “country”).
I reject the mother’s evidence that she has the capacity to support any future curiosity X may have in her Country G culture. Her actions speak louder than her words, and to-date the evidence satisfies me that the only relevant connection X currently has is her physical appearance. The evidence satisfies me that there is little future chance of X’s Country G culture being supported by the mother. In that scenario, I accept the risks posed to X as opined by the court child expert.
The father has a genuine and committed connection to his heritage and referenced both of his daughter’s cultural connections in cross-examination. He is committed to engaging her in his culture and this will include travel to Country G to meet the child’s extended paternal family.
Section 60CC(3)(j) & (k)
I have already spoken about the family violence between these the parties.
Section 60CC(3)(l)
Orders were made in November 2021 and November 2022 to allow for X to spend supervised time with the father. No visits were successful, and based on the evidence from the supervisor, I am satisfied that the mother did not comply either with the letter or the spirit of the directions made by the supervisor to support the visits. Through that prism, I have significant concerns about the mother’s capacity to comply with even her own alternate proposal for X to spend time with the father.
Section 60CC(3)(m)
Although not specifically submitted before me, I have reflected on the effect on X’s welfare and best interests arising from the mother’s parenting capacity being affected either because X remains living with her in Queensland or the mother returns to a more geographically close area (as reflected in her alternative proposal). [31]
[31] See AMS v AIF at [145]
It was not submitted that any adverse finding about the mother’s current capacity to promote a meaningful relationship would be capable of a favourable adjustment if X were to remain living in Queensland with the mother. Even if there was, the evidence before the court did not reach so high a bar as to allow a finding that the mother’s current poor attitude would change in any substantial way.[32]
[32] See for example K[84]
A return to the question of the benefit of a meaningful relationship
Returning then to the question of X’s relationship with each of her parents.
Given the findings I have made, and provided the risks posed by the mother can be mitigated, I am satisfied that X will benefit from the continuation of a meaningful relationship with the mother. In my view, this relationship is not optimal now and is likely to stay that way irrespective of whether X lives with the mother or not because of the lack of evidence to suggest that the mother has the capacity to manage the anxious attachment that X appears to have had for some time.
I am comfortably satisfied that if X were to live with the father or spend time with the father, he would be able to promote a meaningful relationship between X and the mother and there is much benefit to X in her having that relationship with the mother.
I am satisfied that the same finding cannot be made about the mother’s capacity, irrespective of which State X lives in. The mother’s capacity to promote a meaningful relationship between X and the father is limited. This is because –
(a)when she lived in the local region, and X lived with her and had been spending time with the father - the mother did not act in a manner which supported the promotion of her relationship with him and by way of example I note that she told the court that she could not recall speaking positively of the father;
(b)when she lived in the local region, and X lived with her, she suspended X’s time with the father for about three months, then following mediation, she resumed time for a short period and then stopped it again unilaterally and since then (and despite Orders of this court one of which was by consent), X has not been able to resume spending any meaningful time with the father for an extended period of time;
(c)without a working memory of her father, X has become frightened of the father and this is due to the household in which she and the mother have lived;
(d)when the mother moved away with X, nothing has changed in the dynamics between X and her relationship with the father;
(e)there is no evidence to support that X’s relationship with the father would be promoted with a “spends time” regime or that the mother has the capacity to comply with such an order (irrespective of whether that time is supervised or not) and even if X were to attend, the court child expert’s view was that this would likely become an “agony” for X who is already attuned to the mother’s negative attitudes about her father and would have to somehow manage the internal conflict caused within her when she comes home but cannot speak freely about anything pleasant that may have occurred when she was with the father (described as “no permission” by the court child expert).
Insofar as the benefit to X from having a meaningful relationship with the father, I accept the court child expert’s views about the developmental impacts on X if the relationship remains ruptured. Whilst superficially and in the very short term, there may be little change, as time moves on with no exposure to the mother, I am confident that X has the resilience to see the father as a source of love. As X matures there will be medium to long term adverse impacts that will also be avoided if there is a change in X’s living arrangements. The mother must also hold this view, because, absent a finding of unacceptable risk against the father, she too pursues a change in X’s circumstances so that X will spend time with the father.
At this point it is appropriate to reflect on whether any of the proposals seeking for X to spend equal time or substantial and significant time are reasonably practicable. There are no such proposals, and in my view, even if they existed, based on the evidence there is little to support a finding of reasonable practicality. In that regard I have already reflected on the possible impact of the mother’s proposal should she return to NSW and even if the geographical distance was ordered to be less than that, I remain unconvinced that the mother would be able to ensure that X spent time with the father given her past failings. Alternatively there was no evidence that the father would be able to re-locate to a geographical place closer to the mother.
There are no other matters relevant to s 65DAA(5).
CONCLUSION
No one pressed for either equal or substantial and significant time and in my view that was with good reason. The evidence is compelling that these parents do not effectively communicate and co-operate with each other and to ask X to move between such households under either scenario would not be in her best interests.
The significant issues in this case were whether either parent posed an unacceptable risk of harm and if so, how to ameliorate it and secondly the impacts upon X should there be a change in her circumstances.
I have made findings about the unacceptable risk issues as well as the benefit to be derived by X should those risk be capable of amelioration.
I am satisfied that the father has the capacity to promote a meaningful relationship between X and the mother including because he has maintained his view that the mother is a good mother provided the safety issue is addressed and because he has never wavered from his relief which has always been that X would continue to spend time with the mother. There was no persuasive evidence to suggest that he would not comply with an order of the Court, nor that he has actively sought to malign the mother to X. I recognise that there would be a reduction in the time that X spent with the mother, but given the anxious attachment X currently has with the mother, combined with the strength of their bond, I am satisfied that their meaningful relationship will endure albeit it may be different to how it was before.
The issue for me to determine is whether there is a benefit to the promotion of an important, significant and valuable relationship between the father and X and if so how? I have reflected on the parties’ various proposals.
I have already found that the mother has a very limited capacity to promote a meaningful relationship with the father and that as a result of the mother’s behaviours, X has suffered psychological and/or emotional harm which presents itself in having no relationship with the father and also in her inability to engage in the usual activities of life such as attending mainstream school, being able to separate from the mother and/or Ms B and (at times) being able to go out into the community. These findings are undiminished whether X lives with the mother somewhere in NSW or elsewhere.
Since March 2020 X has lived with the mother and had no meaningful contact with the father. By all accounts, X’s demeanour and behaviours have declined over that period, whether because (as the mother asserts) of a brief meeting with the father in September 2022 or as is asserted by the father and ICL, the decline has been over a longer period of time and is a direct result of X’s exposure to the mother’s views and attitudes. There was no persuasive evidence upon which I could find that X’s decline was because of anything the father did to her during the time that he spent with the child.
I have to balance the risks to X from leaving her in her current situation or changing that arrangement in some way.
Irrespective of what the mother’s alternate position may be, if I order that X spends time with the father it will be difficult, exposing X to ongoing parental conflict, internal conflict and the almost certain reality that future litigation will occur either through contravention or some other relief. So, if I was to permit X to stay with her mother, I am satisfied that it would be in X’s best interests that she have no time or communication with the father. Not only would that mean she has lost any chance to have a meaningful relationship with the father in the short to medium term (if not the longer term) but she will have no connection to her Country G culture until perhaps she reaches out to engage with that culture. I accept that there are significant impacts for X if I so order including a loss of identity, self-worth and the potential engagement in unhealthy isolating behaviours.
If I order that X live with the father, then the short-term consequences will be that X will be highly distressed and experience loss and grief. The father has considered the steps that could be taken to address those feelings both within his own home (by being available to X and not going to work) and by engaging with professional support services (such as FF Centre). Importantly, I am satisfied that the father would be able to appropriately support X’s psychological and emotional needs in order to support her ongoing relationship with the mother and Ms B safely and appropriately.
However, in the medium to long term, I am satisfied that X would be sufficiently resilient to adjust to her changed circumstances because she would once again be able to spend time with her mother and MS B and these relationships would be supported by the father. In addition, I am satisfied that X would have the capacity to consistently attend school, free of any anxious attachment that she has with the mother and also be able to maintain and/or develop cultural connections to both her indigenous and Country G cultures, experiencing the many associated benefits of having a cultural identity.
I accept that it is not an insignificant thing for me to say to the mother - that X cannot live with her, irrespective of whether that is within NSW or elsewhere. However, the Court must balance a range of factors and ultimately must make orders having regard to the parties and the children before it. For the reasons already identified, there are no issues that would supplant the primary consideration for X to benefit from having meaningful relationships with both her parents.
In this case, for the reasons set out above, and having regard to X - on balance, I find that her best interests are met by orders which will see X live with the father and spend regularised time with the mother.
Based on the evidence, the mother has not satisfied me on the balance of probabilities that she can support the development of a meaningful relationship with the father in any way other than by having less than primary care of her so that X’s exposure to her negative opinions is reduced.
The mother’s right to freedom of movement was taken into account and given significant, but not determinative, weight. Whether the mother chooses to return or not is entirely at her discretion and the orders shall accommodate both scenarios.
Irrespective of whether the mother does return to somewhere closer or not, X’s time with her will be less than substantial and significant because of the high conflict between these parties and my inability to be confident that any such time would be reasonably practicable. In addition, I am concerned that the more time that X spends in the mother’s company, the more potential there is (by dint of time) for X to be exposed to the mother’s negative attitudes and views about the father.
Given X’s lived experience, I am satisfied that in the short term, X will endure high distress, loss and grief in living with the father and not living with nor spending time (whether substantial and significant or otherwise) with the mother. This will be ameliorated because after eight weeks she will once again be able to see her mum. However, in my view a change of circumstances is necessary to disrupt the emotional and/or psychological damage being caused to X now, because she will never have a meaningful relationship with the father if she is left in the mother’s primary care and her current anxious behaviours will persist. The mother has had the opportunity to address these concerns whilst X has lived with her and she has been unable to satisfy me that she is capable of doing so in the future.

To ensure that this change in circumstances or disruption has long-term beneficial effects and enables the father to develop a loving bond with X uninfected by the mother, I will impose an eight-week moratorium on X having any contact with the mother (and by default Ms B).
I am satisfied that during and after the expiration of this moratorium, with the support of the father, Ms EE and the professionals they intend to engage, X will have the capacity to adjust and reset her belief system and come to understand that her father is a person to love and not fear.
If the mother is able to return to within closer proximity, then X will be able to spend more time with her because this will be reasonably practicable. Changeovers will in the main be via the school which will reduce the prospect of X being exposed to parental conflict or loyalty demands and reduce the need for the parents to come into contact with each other which should give the mother some comfort given her expressed emotions about contact with the father.
If the mother does not return to within a closer proximity, then X will still see her on weekends but only three times per school term which largely reflects the parties’ reality, that is, that the mother lives sufficiently distant to make any periods of time and the consequent travelling involved, adverse to X’s best interests.
Where changeovers cannot occur at school they will be effected either by the parties or their nominees so as to reduce the risk of X being exposed to conflict or loyalty demands.
I will also order that X spend holiday time with each party but that neither party can take X overseas for 12 months to allow her to settle with the father and give her time to overcome her anxiety in public places.
I have reflected on the reasons why the mother left NSW and her alternate position which would see her return. The Orders will be drafted so that it is a matter entirely for her whether she returns or not. I am simply acceding to the parties’ shared position that the mother should be given the opportunity to explore the possibility of a return, without any expectation that she does.
I recognise the prospect of the mother holding feelings of bitterness and unhappiness in the event that X lives with the father and does not stay living with her. On a background of my finding that the mother already has a limited capacity to promote a meaningful relationship between X and the father, and a limited capacity to meet X’s emotional (anxious attachment) and cultural needs - should the mother be unable to effectively quarantine X from these deficits when she spends time with her that is less than substantial and significant – the limited time spent in the mother’s household (that I intend to order) will similarly be a protective factor for X’s best interests and welfare.
Whilst I accept that the mother will be upset by X living with the father, I am satisfied that she has the capacity to implement the time I will order X spend with her. If she stays in Queensland, on her evidence she will have the support of family and friends. If she returns, then it will be her decision alone.
I have already explored and made findings about the parties’ poor communication and lack of trust.
In my view, the level of communication the parties do have is insufficient to enable them to resolve difficulties in the implementation of substantial and significant time. For that reason the orders are quite prescriptive to reduce or remove the need for the parties to negotiate and otherwise communicate with each other.
The mother is entitled to her freedom of movement where it does not adversely affect X’s welfare[33]. I have found that if X remains living with the mother interstate, then her welfare will be adversely affected because she will, on the balance of probabilities, have no prospect of developing a meaningful relationship with the father and even if both mother and child return to a closer region, the same concern endures. In addition there was no evidence upon which I could make a finding that X’s anxious attachment and her behaviours can be addressed by the mother. In making these findings I am very mindful of the adverse impacts that X will endure from not only being removed from the mother’s care but also being placed into the father’s care. It is a balancing act and I am satisfied that the risks posed in the mother’s household outweigh the risks posed in the father’s.
[33] See U v U
Pursuant to s 61DA when asked to make a parenting order, I am required to apply a presumption that it is in a child’s best interests that the parents have equal shared parental responsibility, absent a finding that one of the parents has engaged in abuse of the child, family violence or it is not otherwise in a child’s best interests.
No one sought the allocation of equal shared parental responsibility, and in my view I would not make such an order even if it was sought because it would not be in the best interests of X: s 61DA(4). The parental conflict and poor communication is too extreme to enable any sensible or respectful communications to occur.
In my view, there is merit in whomever X lives with holding sole parental responsibility but given my findings and the parties’ relief, there is also merit in the other parent having an opportunity to give feedback before a decision is made in the exercise of sole parental responsibility.
I have already explored why X should live with the father and I will so order.
I have already explored why X should spend less than substantial and significant time with the mother provided it is reasonably practicable to do so, but in summary it is because:
(a)X will benefit from having a meaningful relationship with both her parents;
(b)The mother poses an unacceptable risk of emotional and/or psychological risk of harm to X due to inability to promote a meaningful relationship between X and the father and also because of her inability to manage X’s anxious attachment to her and X’s behaviours;
(c)The mother has some limitations on her capacity to meet the cultural needs of X;
(d)Following an eight-week moratorium to enable the father to develop a relationship with X, regular term time and holiday time between X and the mother will ensure that she gets a balanced view of each parents’ household and ameliorates any negativity that may arise in the mother’s household.
(e)Again, subject to practicability, time on special occasions will be ordered.
Orders are made to give structure to the manner in which the mother and the father are to communicate with each other. Various injunctive orders have been made to facilitate a smooth transition by X from the mother to the father and otherwise in light of the parties’ cross‑allegations about denigration and X’s exposure to conflict.
The mother sought various injunctions which were unsupported by the evidence. This included the father having to engage in therapy for a sex addiction (a finding unavailable to me on the evidence) and which demonstrated that even under the guise of the Court making a finding that there was no unacceptable risk posed by the father, the mother continued to promote that the father has a sex addiction without any plausible evidence.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of X.
THE APPLICABLE LAW, ANALYSIS & CONCLUSION – COSTS
The ICL brings an application for each party to pay one-half of the ICL’s costs quantified at $14,009: see exhibit ‘ICL2’. That means each of them has to pay $7,004.50.
In exercising my discretion I must have regard to s 117 which sets out the Court’s jurisdiction insofar as costs are concerned including a rebuttable principle that each party should bear their own costs.
Both parties opposed the making of a costs order on the basis of financial hardship: s 117(4)(b).
The ICL seeks to rebut the presumption that the ICL (or in other words Legal Aid NSW) should bear those costs, on the basis that I should be satisfied that the circumstances of the case make it just for each parent to pay one-half (or $7,004.50) of the ICL’s costs.
In the exercise of this broad discretion, the Court must take into account various considerations as set out at s 117(2A).
The discretion I exercise in the making of an order (if any) in relation to the ICL’s costs (including what proportion each party must be responsible for) must be just: s 117(3)
Turning to the considerations set out within s 117(2A):
(a)The father is employed in primary industry, although whether he continues to be so employed will depend on X’s transition into his care. The mother is unemployed and is in receipt of Commonwealth benefits which may well make her eligible for an exemption pursuant to legal aid policy.
(b)The father has the financial support of Ms EE and the mother lives rent-free and in more recent times sold a property for approximately $1,000,000 million.
(c)The mother was unsuccessful whereas the father’s relief was largely adopted by the Court.
No one consideration under s 117(2A) prevails over any other and the weight to be accorded to each of the relevant factors is at my discretion: Medlon & Medlon (No. 6 (Indemnity Costs) [2015] FamCAFC 157 at [24]. There is nothing to prevent just one consideration as set out in s 117(2A) being the sole foundation for an order for costs: PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158.
In the circumstances of this case, I am satisfied that there are justifying circumstances to rebut the presumption that each party bear their own costs: see Penfold and Penfold (1980) 144 CLR 311. This is because, taking into account all the circumstances of this case, I am satisfied that it is just for me to make a costs order against each parent because it is my expectation that notwithstanding my order, they will be able to apply for an exemption and if that is not granted, affording them 12 months to pay will be sufficient time for them to rearrange their finances and household budget to accommodate the payment.
For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.

I certify that the preceding two hundred and fifty-four (254) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 30 March 2023

File number(s):	NCC 2354 of 2020
Judgment of:	JUDGE KEARNEY
Date of judgment:	30 March 2023
Catchwords:	FAMILY LAW – parenting – competing residence applications - where a five year old child has been denied a meaningful relationship with one parent by the other – refusing to promote a reintroduction of parental relationship in accordance with interim orders culminating in recent interstate relocation - where a material possibility of psychological and/or emotional harm to the child is posed by the mother - where no risk of significant harm in the father’s household is found - careful weighing up of evidence required - extensive supports required to assist the child during transition – to encourage positive social development and reduce anxiety – encourage and develop a meaningful relationship with both parents – change of residence appropriate with supports in place – restraints to ameliorate risk of child’s exposure to conflict - best interests of child
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	A v A (1998) FLC 92-800 at 84,996 AMS v AIF [1999] HCA 26 B and B (1993) FLC 92-357 Berys & Berys [2022] FedCFamC2F 1162 Blinko & Blinko [2015] FamCAFC 146 Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 Eastley & Eastley [2022] FedCFamC1A 101 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Saunders [2007] FamCA 102 Hepburn & Noble [2010] FamCAFC 111 Isles & Nelissen [2022] FedCFamC1A 97 Johnson & Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520 Morgan & Miles [2007] FamCA 1230 MRR & GRR [2010] HCA 4 Napier & Hepburn [2006] FamCA 1316 Russell & Close [1993] FamCA 62 Star & Duggan [2009] FamCAFC 115 Sweet & Sweet [2022] FedCFamC2F 676 Taylor & Barker [2007] FamCA 1246 U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 2 Family Law
Number of paragraphs:	254
Date of hearing:	16-17 February 2023 & 3 March 2023
Place:	Newcastle
Counsel for the Applicant:	Mr Friedlander
Solicitor for the Applicant:	Sharah & Associates
Counsel for the Respondent:	Mr Karp (Day 1 & 2) and Ms Windsor (Day 3)
Solicitor for the Respondent:	Grace Family Lawyers (at defended hearing) and Cragg Braye & Thornton (at judgment delivery)
Counsel for the Independent Children's Lawyer:	Ms Van Oosterom
Solicitor for the Independent Children's Lawyer:	Harpers Legal

NCC 2354 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WEEKES Applicant
AND:	MS KENDRICK Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE KEARNEY
DATE OF ORDER:	30 MARCH 2023