Werner & Manz - [2024] FedCFamC2F 1079

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Werner & Manz [2024] FedCFamC2F 1079

File number(s): MLC 14748 of 2023

Judgment of: JUDGE A. HUMPHREYS

Date of judgment: 8 August 2024

Catchwords: FAMILY LAW – PARENTING – international “relocation” – mother seeks to return to live in Country B with parties’ child (aged 5) – child lived predominantly in Country B until September 2023 – father seeks child remain living in Australia and continue spending time with him on alternate weekends (Friday to Monday) and on one afternoon in intervening weeks – evaluation of competing proposals – order made for child to live with the mother in Country B and to spend time with the father as proposed by the mother, in Australia twice each year and in Country B twice each year – child’s return to Country B not to be deferred as sought by the father in the alternative – mother to have sole decision-making responsibility for education and health issues – parties to have joint decision-making responsibility for all other major long-term issues – other orders agreed by parties found to be in child’s best interests.

Legislation:
A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751

Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Asher & Wilkinson (2020) FLC 93–945; [2020] FamCAFC 44

KB & TC (2005) FLC 93–224; [2005] FamCA 458

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102

Kuebler v Kuebler (1978) FLC ¶90-434; [1978] FamCA 26

Line & Line (1997) FLC ¶92-729; [1996] FamCA 145

Malcolm & Monroe (2011) FLC 93-460; [2011] FamCAFC 16

McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92

Paskandy v Paskandy (1999) FLC 92-878; [1999] FamCA 1889

Rochford & Fitzhugh [2019] FamCAFC 218

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

Taylor & Barker (2007) FLC 93–345; [2007] FamCA 1246

U v U (2002) 211 CLR 238; [2002] HCA 36

Wagstaff & Wagstaff (2022) FLC 94-098; [2022] FedCFamC1A 199

Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48

Cases cited:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61C, 61B, 61CA, 61D, 61DAA, 61DAB, 65D

Division: Division 2 Family Law

Number of paragraphs: 275

Date of hearing: 27 – 29 May 2024

Place: Melbourne

Counsel for the applicant: Ms Bastick

Solicitor for the applicant: Kenna Teasdale Lawyers

Counsel for the respondent: Mr Dickson KC

Solicitor for the respondent: Sage Family Lawyers
ORDERS

MLC 14748 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WERNER

Applicant

AND:
MS MANZ

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child, X, born in 2018 (“X”) from the Family Law (Airport) Watch List at all points of international arrivals and departures in Australia.
3.The respondent (“mother”) is authorised to provide a copy of these orders to the Australian Federal Police.

Allocation of parental responsibility for decision-making
4.The mother have sole decision-making responsibility for decisions about major long-term issues relating to X’s education and health.
5.When making decisions about major long-term issues relating to X’s education and health, the mother:
(a)First write to the applicant (“father”), via email or text/message, to invite the father’s views regarding any proposal she makes in relation to those matters, save for when an urgent decision is required and this is not practicable;
(b)Consider any views expressed by the father in response to her invitation; and
(c)Advise the father of her decision in writing, as soon as practicable.

6.The mother and the father (“the parties”) have joint-decision making responsibility for all other major long-term issues relating to X.
7.The parties are not required to consult with each other when making decisions about day-to-day matters while X is in their care.

Living arrangements
8.X live with the mother.

Time with the father
9.Until X moves to live with the mother in Country B, he spend time with the father on a rotating fortnightly basis as follows:
(a)In week one: from the conclusion of school on Friday (or 9.00 am if a non-school day) to the commencement of school on Monday (or 4.00 pm if Monday is a non-school day); and
(b)In week two: on Wednesday, from the conclusion of school (or 9.00 am if a non-school day) until 7.00 pm, following the same fortnightly cycle as is currently in place pursuant to the interim orders made on 29 May 2024; and
(c)At any other time as agreed between the parties in writing.

10.Upon X moving to live with the mother in Country B, X spend time with the father as follows:
(a)For 10 to 14 days in Australia during the Country B winter school holidays in January / February each year, excluding Lunar New Year, at such dates and times to be agreed between the parties in writing and failing agreement as nominated by the mother;
(b)For no less than 21 days in Australia during the Country B summer school holidays as follows:
(i)In 2025, for four blocks of time for three nights each at such dates and times to be agreed between the parties in writing and failing agreement, as nominated by the father;
(ii)In 2026, for three blocks of time for four nights each at such dates and times to be agreed between the parties in writing and failing agreement, as nominated by the father;
(iii)In 2027, for two blocks of five nights each at such dates and times as agreed between the parties in writing and failing agreement, as nominated by the father;
(iv)In 2028 and each year thereafter, for two blocks of seven nights at such dates and times as agreed between the parties in writing and failing agreement, as nominated by the father;

(c)At such other times that X travels to Australia, as agreed between the parties in writing and failing agreement for a period of no less than three consecutive nights, with the mother to notify the father of X’s travel dates no less than 30 days prior to travelling;
(d)On two occasions each year in Country B, for up to three consecutive nights until X is 10 years of age, and thereafter for up to seven consecutive nights, as nominated by the father; and
(e)At such further and other times as agreed between the parenting in writing.

11.If X and the parties are all in Melbourne or all in Country B on any of the following special occasions, X spend time with each of his parents on those occasions at times to be agreed and failing agreement:
(a)With the father:
(i)For Christmas, from 3.00 pm on Christmas Eve until 3:00 pm on Christmas Day;
(ii)For Father’s Day, from 6.00 pm on the Saturday prior to Father’s Day until the commencement of school on Monday (or 9.00 am if a non-school day);
(iii)On X’s birthday, from the conclusion of school (or 3.00 pm if a non-school day) until the commencement of school the next day (or 9.00 am if a non-school day); and
(iv)On the father’s birthday, from the conclusion of school the previous day (or 3.00 pm if a non-school day) until the commencement of school on the birthday (or 3.00 pm if a non-school day); and

(b)With the mother:
(i)For Lunar New year, from 3.00pm on Lunar New Year Eve until 3.00 pm on Lunar New Year Day;
(ii)For Mother’s Day, from 6.00 pm on the Saturday prior to Mother’s Day until the commencement of school on Monday (or 9.00 am if a non-school day); and
(iii)On X’s birthday and the mother’s birthday, from the conclusion of school the previous day (or 3.00 pm if a non-school day) until the commencement of school on the birthday (or 3.00 pm if a non-school day).

12.For the purposes of X’s travel to Australia in accordance with orders 10(a) and (b):
(a)The mother pay 100% of the cost of X’s airfares; and
(b)X be permitted to travel as an unaccompanied minor, if he meets the requirements of the airline he is flying with.

13.For the purposes of the father’s travel in accordance with order 10(d), the father pay 100% of the cost of his airfares and accommodation.

Communication
14.Until X moves to live with the mother in Country B, the mother facilitate X communicating with the father as follows:
(a)Each Tuesday and Thursday by facetime or telephone call at 7.00 pm, with the mother to facilitate X making the call and to give X privacy during the call; and
(b)At any other time as agreed between the parties in writing.

15.Upon X moving to live with the mother in Country B, the mother facilitate X communicating with the father as follows:
(a)Each Wednesday and Sunday by videocall or telephone call at 7.00 pm, Country B time, or such other time as agreed between the parties, with the father to initiate the communication with the mother on her device and the mother to facilitate X receiving the call;
(b)On the following special occasions, if X is not spending time with the father on those occasions, by videocall or telephone call at 7.00 pm, Country B time, or such other time as agreed between the parties in writing, with the father to initiate the communication with the mother on her device and the mother to facilitate X receiving the call:
(i)Christmas Day;
(ii)Easter Sunday;
(iii)X’s birthday;
(iv)The father’s birthday;
(v)Father’s Day; and
(vi)The paternal grandfather’s birthday; and

(c)At such further and other times as agreed between the parties.

16.For periods X is in the father's care, the mother be at liberty to communicate with X by electronic means, including but not limited to FaceTime, Skype, mobile phone or SMS as agreed between the parties, or failing agreement, no less than twice per week, and the father facilitate that communication.
17.At times he is in their care, each of the mother and the father otherwise facilitate X communicating with the other parent by telephone or videocall at any reasonable time requested by X.
18.The mother facilitate X to receive cards, gifts and letters sent by the father and facilitate X to open gifts sent by the father and/or his family during X’s video communications with them.

Changeover
19.Until X moves to live with the mother in Country B, changeover take place at X’s school where practicable and otherwise at the mother’s residence.
20.Upon X moving to live with the mother in Country B:
(a)Changeover in Australia is to take place:
(i)At the mother’s nominated residence if she is travelling to Australia;
(ii)At the Melbourne Airport if X travels as an unaccompanied minor; or
(iii)As otherwise agreed between the parties in writing; and

(b)Changeover in Country B is to take place:
(i)At the mother’s residence; or
(ii)As otherwise agreed between the parties in writing.

Medical care and treatment
21.The parties each keep the other informed of any significant injury or illness suffered by X when in their respective care, as soon as practicable, advising the other of:
(a)The nature of the significant injury or illness;
(b)The names of all relevant treating medical and like practitioners; and
(c)The treatment given to date and any information in his or her possession about the diagnosis,

and
(d)Each of the parties be at liberty to contact treating medical and like practitioners to seek further information and advice in relation to X AND these orders be taken as authority for them to do so; and
(e)Each of the parties be at liberty to attend any hospital or medical centre in the event of an emergency in relation to X.

22.The parties each make available to the other any medication prescribed for X to enable the other party to administer such medication to X and the other party thereafter administer such medication as prescribed or required and the parties ensure the medication passes between them so as to ensure that it is in the possession of the party who has the care of X.

Schooling
23.Each of the parties be at liberty to liaise directly with X's school(s) to receive any notes, information, newsletters, school reports, order forms for school photographs, information about X's progress at school, to attend parent teacher interviews and to receive information about extracurricular activities involving X.
24.Each party be authorised to receive information about X directly via any parent communication portal or app used by X’s school.
25.Each of the parties be permitted to attend curricular, co-curricular and extracurricular activities and sporting activities of X to which parents routinely attend.

Information
26.The parties each keep one other informed of their residential address and contact details (including telephone and email) and advise of any change of address within seven days and advise of any change in contact details within 48 hours.
27.Each month in which X will not be spending time with the father, the mother provide the father with a brief update in writing, informing him in relation to X’s health and development, significant milestones, awards, achievements, extra-curricular activities, hobbies and interests.

Passports
28.The mother retain X’s Australian and Country B passports at all times, unless otherwise agreed between the parties in writing.
29.The parties do all acts and things and sign all documents required from time to time to renew X’s passports to ensure that X has a valid Australian and Country B passport at all times, with the costs to be shared equally between the parties.

Obligations, consequences of contravention and assistance with orders
30.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

Procedural orders
31.All extant applications be dismissed.

AND THE COURT NOTES:
A.Communication in writing for the purpose of these orders, includes communication between the parties via email or text message.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
INTRODUCTION

These proceedings concern the child X, aged five.
The parties are X’s parents. I will refer to them as the father and the mother respectively, reflecting their relationships with X and without intending any disrespect to them.
The father is Australian. His family lives in Australia and he has lived in Australia for most of his life. The mother is from Country B. She is a citizen of both Country B and Australia. As an adult, the mother has lived in Country B, Australia and elsewhere overseas. Her family continues to live in Country B.
The parties shared an intimate relationship but never lived together. Following X’s birth, the mother lived predominantly in Country B with X, spending time in Australia at least once a year save for during the COVID-19 pandemic when they spent almost two years in Country B without visiting Australia. The mother facilitated X communicating with the father from Country B and spending time with the father on each occasion they came to Australia.
In September 2023, the mother travelled with X to Australia with return flights booked to Country B in early 2024. During that time, the father commenced these proceedings and X’s name was placed on the Family Law (Airport) Watchlist (“Watchlist”), preventing the mother from returning to Country B with him. It is not in dispute that X’s relationship with the father and the father’s parenting skills were at that time developing because of the limited time they had spent together. This continues to be the case notwithstanding X has subsequently been spending regular time with the father.
The father seeks X live in Australia so X can spend regular time with him and they can further develop their relationship. In the alternative, he seeks X’s return to Country B be deferred to mid-2026.[1] The mother seeks to immediately return to live in Country B with X, where they lived until September 2023, where her family lives, where her business is based and where she has other sources of work and income. She submits X’s relationship with the father can continue to be supported from Country B, by X communicating regularly with the father and spending time with the father in Australia and Country B.
[1] At the outset of the hearing, the father sought X’s return to Country B be deferred until late 2030. At the conclusion of the mother’s evidence, he amended his alternate position to X’s return to Country B be deferred until after mid-2026.
Both parties’ desires are understandable but cannot be reconciled, meaning it is necessary for me to determine which of the parties’ proposals is in X’s best interests.
THE ISSUES
I was assisted by a joint document which sets out the orders agreed by the parties and, in respect of matters in dispute, their respective proposals and alternate proposals.[2]
[2] Exhibit B, with the father’s updated position (as reflected in Exhibit F-5) tendered after cross-examination of the parties and the family report writer.
From that document and the matters canvassed at the hearing, it is apparent the following issues require determination:
(a)Should X live with the mother in Australia permanently and continue to spend regular time with the father during school term periods and on school holidays, in accordance with the father’s proposals, the mother’s proposals or in some other way?
(b)Should X live with the mother in Country B, spending time with the father in accordance with the mother’s proposals, the father’s proposals or in some other way?
(c)If X lives with the mother in Country B, should he do so immediately as proposed by the mother or from mid-2026 as proposed by the father?
(d)How should parental responsibility be apportioned in respect of decision-making for major long-term issues relating to X?
(e)Are the parenting orders agreed by the parties in X’s best interests?
(f)What other parenting orders should be made in X’s best interests of those proposed by the parties?
BACKGROUND
The father was born in Australia and is an Australian citizen. He is aged 51.
The mother was born and raised in Country B. She is aged 49. The mother lived overseas to complete post-graduate studies from around 2004 to 2006, spending time in various countries. She first came to Australia in 2007 for employment. She subsequently became an Australian citizen, such that she is now a dual citizen of Australia and Country B. To the family report writer, the mother said she worked for her employer in Australia for 10 years, frequently travelling during that time to work with employers in various countries.

The parties met in 2009 and commenced a casual relationship. Their relationship ended later that year, after the mother became pregnant and the parties agreed to terminate the pregnancy.
In 2017, the mother established her business.
The parties recommenced a casual relationship in 2017. In 2018 the mother became pregnant with X. She travelled to Country B in mid-2018, for work and to spend time with her family. The mother returned to Melbourne and X was born in Australia in 2018. The father was present at the hospital for X’s birth and, at the mother’s invitation, attended the birthing suite once X was born and cut his umbilical cord.
X was issued an Australian birth certificate. The father deposed Country B will not issue a birth certificate for a child born overseas.
The father attended a trip from late 2018 to early 2019 and did not visit X during this time. The mother deposed upon returning from the trip, the father spent time with X once or twice a week for a few hours at a time, usually at her home.
In 2019, the mother returned to work in her business, when X was a newborn. In late 2018, the mother’s parents travelled to Australia to assist her with X’s care. They returned to Country B in 2019 for the mother’s brother’s wedding. The mother deposed the father continued to attend at her home to spend time with X and cared for X for short periods, to enable to her to have a shower and to attend to home chores.
In early 2019, the mother travelled to Country B with X, with the father’s consent and cooperation, including to obtain a passport for X. The parties then cooperated for the mother to obtain Country B citizenship for X. Like the mother, X is now a dual citizen of Australia and Country B.
While the mother and X were in Country B, the mother sent photos, videos and updates to the father about X.
The mother and X travelled to Australia in late 2019 and from late 2019 to early 2020. X spent time with the father during both trips. The mother deposed that during their time in Australia, X participated in family celebrations for Christmas with the father and X’s paternal grandfather and met his paternal cousins.
The father deposed that the mother and X returned to Australia in December 2020 but acknowledged in his oral evidence this was a mistake. Due to the COVID-19 pandemic, X and the mother were unable to travel to Australia as planned in December 2020 and did not return again until late 2021. Accordingly, X did not see the father for almost two years over that time.
The mother and X travelled to Australia from late 2021 to early 2022, completing two weeks of hotel quarantine for that trip to occur. I accept the mother’s evidence this was not easy, particularly given X’s young age. The mother met the cost of travel, including the cost of hotel quarantine. The father deposed to spending time with X during their time in Australia, including caring for X at the mother’s home while she had work meetings, regularly catching up with the mother and X for dinners, celebrating Christmas at the paternal grandfather’s property and visiting local attractions. The father described the parties communicated with one another quite easily to arrange these catch ups.
X commenced kindergarten in Country B in mid-2021.
From late 2021, X communicated regularly with the father by video from Country B. The mother deposed those calls increased in frequency from 2022, as X became older.
The mother and X next travelled to Australia from late 2022 to early 2023. Again, X spent time with the father, including at the mother’s home in Suburb C, spending Christmas with the paternal grandfather together with the mother, taking outings together, attending a trip with the father and his partner, Ms D, and another trip with the mother and the father in early 2023.
In between their visits to Australia, the mother continued to facilitate regular video calls between X and the father. The father deposed as X got older he enjoyed playing with various effects on their video calls. The father also deposed to following X’s kindergarten in Country B on Facebook and that he enjoyed videos and photos sent by the mother of X at kindergarten in Country B.
In late 2023, the mother and X again travelled to Australia. The mother gave evidence she booked return tickets, for a return to Country B in early 2024.[3] She adduced evidence of a text message sent by her to the father in mid-2023, with a screen shot showing the return flight details. The father acknowledged he knew from mid-2023 the mother had return tickets booked. When cross-examined, the father initially said that when the mother and X arrived in Australia in September 2023, he did not know she intended to return to Country B with X. When asked to explain this evidence given his acknowledgement he was aware of their return tickets, he said the mother told him a return ticket was cheaper. However, he was unable to point to a text message to that effect and was unable to explain why he had not deposed to this purported communication in his trial affidavit or affidavit in reply.
[3] Annexure MSM-01 to the mother’s affidavit
During this trip to Australia, the mother and X stayed in a property owned by the mother in Suburb C, and X spent time with the father approximately once a week. The mother continued to work during their time in Australia and arranged for X to attend childcare at a childcare centre where the operator was from Country B, and then at kindergarten. The father deposed the mother had discussed with him X attending primary school in Australia and that until mid-2023, the mother had told him she was planning to live in her Melbourne home so they could enrol X in a school close to their two homes. He said he began looking at school options. However, he deposed that from September 2023, the mother refused to discuss X’s school enrolment. He said the parties’ communication began to deteriorate.
In late 2023, the parties took X on a camping trip. The father deposed in his trial affidavit the mother assumed she would be coming along even though this was not his intention and he had organised the trip with other friends. He said that she nevertheless “ended up coming”. This is quite different to the account provided in the father’s affidavit in reply, that the mother was “insistent” on attending this trip and that this was an example of the mother not wanting X to spend time with him. To put this trip in context, the mother had previously attended a trip with X and the father in early 2023, shortly before returning to Country B with X. The mother and X were then in Country B for some eight months, during which time X did not spend time with the father. They returned to Australia less than two weeks prior to the camping trip. In these circumstances, I do not consider it was unreasonable for the mother to have assumed she was invited to attend this trip with X or that the mother wanting to attend the trip demonstrates she did not want X to spend time with the father.
The mother deposed the father tried to resume their romantic relationship during this trip and kissed her. She said their relationship became strained after this. The father admitted kissing the mother but denied he tried to resume a romantic relationship. The father agreed their relationship became strained but said this was because the mother was evasive about where she would be living and her future plans. He deposed that in late 2023, the mother told him she had decided to live in Melbourne but a week later she told him she was returning to Country B.
On 1 October 2023, the father organised family dispute resolution (“FDR”) at E Centre. He deposed he did so to seek assistance to prepare a parenting plan providing for X to spend overnight time with him and to assist with the parties’ communication.
The father deposed that after he initiated FDR, the mother told him he could not have X at his home and could not take X anywhere without her consent, but that things settled down towards the end of October 2023.
The mother took X to a school tour at F School in late 2023. The parties attended an interview together in late 2023 and they attended an observation session there with X in late 2023. The mother deposed the parties had by then discussed the possibility of her living in Australia with X for his prep year in 2024 before returning to Country B to start primary school in 2025, explaining that children in Country B start school upon turning six (and X will be six in 2024). However, she said they never reached any final agreement. She said that staying in Australia remained problematic for her in the absence of a commitment from the father to care for X for one to two months twice during the year so she could return to Country B for work. She deposed that in the absence of a commitment from the father to assist in this way with X’s care so she could maintain her business in Country B, she intended to return to Country B with X on the return tickets which were booked for early 2024.
In late 2023, the father took X on a camping trip with Ms D and stopped to visit the paternal grandfather on their way home.
In late 2023, the parties applied to renew X’s Australian passport. The mother gave evidence the father lodged the application and changed the delivery address to his address, so that he received X’s passport rather than the mother. The father denies he did so and deposed the mother was aware from the passport form that it was to be delivered to his address. Either way, it is not disputed that the mother asked the father for X’s passport. The mother deposed that although she and X could have left Australia using X’s Country B passport, which was in her possession, she wanted to ensure she had received X’s Australian passport before she left for Country B. She deposed she became stressed when the father would not provide her with X’s passport and she became untrusting of his motives. He provided her with only a copy of the passport in late 2023.
On 15 November 2023, the mother participated in an intake session for FDR. She said she only realised at the end of that session that the process was not family therapy as she had discussed with the father. The father confirmed in his affidavit in reply the parties had spoken about “counselling” to improve their communication and this is why he initiated FDR. The mother explained to the family report writer and in her oral evidence that she perceived the initiation of FDR, rather than counselling, as meaning the parties were in conflict. The parties agree their relationship and communication then further deteriorated.
The father deposed that on 21 November 2023, the mother insisted on staying at a sports lesson with him and X. He said this was unusual. He said the mother told him she had received advice from the FDR service that he was not to be alone with X. The mother gave oral evidence she was acting on advice of the mediator by seeking to be present when X spent time with the father. She said as soon as she was advised by her counsel that this was poor advice from the mediator, she agreed to X resuming spending time with the father independently from her. The mother’s evidence in this regard impressed me as genuine. I am satisfied she acted on professional advice and did not seek to restrict X’s spent with the father for the purpose of obstructing their relationship.
In his trial affidavit, the father deposed he had “grave concerns” the mother would travel to Country B with X after Christmas 2023 and not return to Australia. He deposed he formed this opinion because the mother informed him she purchased a ticket to Country B in early 2024, she had begun insisting on supervising his time with X, was pressing for X’s Australian passport and had been discussing X attending school in Country B. It is unclear from the father’s evidence if he meant the mother informed him in early 2024 that she had purchased a ticket to Country B (which cannot be the reason he issued proceedings in December 2023) or if he meant the mother informed him she had purchased a ticket returning to Country B in early 2024 (which does not accord with his acknowledgement he had known since mid-2023 that the mother had booked return tickets, with a return date in early 2024). Either way, this cannot be reconciled with his other evidence.
On 14 December 2023, the father filed his Initiating Application, seeking final parenting orders including (among other parenting orders) for the parties to have equal shared parental responsibility for X, for X to live with the mother and for X to spend time with him each alternate weekend, during school holidays and for special occasions. The father also sought an injunction restraining both parties from removing X from Australia without the authenticated consent of the other parent and an order requiring the parties to enrol X to attend F School for prep in 2024. The interim orders sought by the father included an urgent ex parte order restraining the parties from removing X from Australia and placing his name on the Watchlist. The interim orders sought by the father otherwise generally aligned with the final orders he sought, including in respect of X’s school enrolment. The father’s application was listed for a first court event on 14 February 2023.
On or around 18 December 2023, X’s name was placed on the Watchlist at the request of the father, relying on his filed court application.
The mother was not made aware the father had initiated court proceedings or that X had been placed on the Watchlist until she was served with the father’s court documents on 7 January 2024. This was notwithstanding the parties communicating together about X and spending time together with X over the holiday period. The father did not provide any explanation in either of his affidavits as to why service of his application was delayed. When cross-examined, he gave evidence he did not want to upset the family’s Christmas. He unequivocally agreed when it was put to him by senior counsel for the mother that he wanted Christmas with the mother and X at his father’s home to be a happy occasion, and that he knew the news of his application was going to be a bomb.
In February 2024, X commenced prep at F School.
On 9 February 2024, the mother filed a Response to Initiating Application, seeking final orders providing for X to live with her in Country B, to complete kindergarten and primary school there, and then to relocate to Australia to complete secondary school. She also sought final orders for X to spend time with the father when the father visits Country B and when she and X visit Australia. Aside from some other incidental orders, the mother sought to be excused from particularising the final orders she sought pending the preparation of a family report. The mother sought interim orders providing for X to return to Country B with her in early 2024 or as soon as possible after that date, and for X to communicate and spend time with the father pending their return, including overnight on Fridays. She otherwise sought orders for the preparation of a family report (and that she travel to Australia with X for the report to be prepared), for a parenting coordinator to be appointed, requiring the parties to obtain consent orders in Country B “mirroring” Australian parenting orders, and injunctions including to safeguard X from denigration and parental conflict.
Interim orders were made by consent on 12 February 2024 (“the February orders”), providing for X to live with the mother and spend time with the father each week, from the conclusion of school on Friday (or 3.30 pm on a non-school day) until 3.30 pm on Saturday (so, for one full day and one night overnight each week), and at other times as agreed. X resumed spending overnight time with the father on 16 February 2024.
At a compliance and readiness hearing on 1 March 2024, orders were made listing the matter for final hearing on 27 May 2024 and providing for the filing of further material. Orders were made by consent appointing Dr H as the single expert to complete a private family report (“the family report writer”) and for Ms G of J Law Firm to be jointly engaged as a single expert to provide a report and/or written advice in relation to the making of reciprocal parenting orders in Country B (“the Country B legal expert”).
The father deposed changeovers have occurred without any incident save for on one occasion, in early 2024, when he deposed the mother followed him, Ms D and X leaving an event at school. He said she shouted at them that they were not to see X without her consent. Neither party otherwise deposes to any conflict occurring between them in X’s presence.
The mother deposed that in early 2024, X complained his bottom was sore. She observed his anus was red. She deposed he had previously been treated for worms in late 2023 and gave oral evidence it is quite usual for her to check X’s bottom each day when she attends to his nappy. The mother deposed that when she asked X what had happened, he first told her his red bottom was from “[an object] at grandpa’s property” and then that the father had hurt his bottom with his finger, making a gesture and rotating his finger. The mother deposed she became worried something bad had happened to X while camping. She referred to being sexually abused herself as a small child but said she was mindful there could be other explanations. The mother gave evidence she recorded part of her conversation with X and phoned Suburb K Police Station, who recommended she take X to hospital, which she did the following morning. The mother deposed the hospital did not recommend any treatment for X as his bottom was no longer red by the time of his attendance there. The mother also attended for X to be interviewed at Suburb K Police Station at the request of the police. The mother said the police informed her X did not say anything of concern to them, explained he may be confused about different events and that there may be a hygiene issue. The mother deposed she was much more relaxed and confident after her conversations with the hospital and police and did not have any concerns about X being abused. In early 2024, the mother sent a message to the father, “last night saw he got red anus, took him to see doctor. Hygiene issue?” When cross-examined, the father acknowledged he could detect from the mother’s message that she was worried about X, yet he did not reply or do anything to allay her concerns. He said he was worried she was making an accusation against him and did not feel a reply was warranted. When re-examined by his counsel, the father said he figured if there was something really bad, the mother would let him know.
In early 2024, the mother was interviewed by Child Protection, Department of Families Fairness and Housing (“DFFH”) in relation to these matters. Child Protection also spoke with X at school. In May 2023 Child Protection informed the mother they would speak with the father before closing their file. On 6 May 2024, the mother’s lawyers wrote to the father’s lawyers, informing the father of what had transpired. The mother had not previously informed him of the police or Child Protection interviews. The father deposed he was interviewed by Child Protection in May 2024. The father’s lawyers issued subpoenas to each of the hospital and DFFH. Records produced in response to those subpoenas tendered during cross-examination of the mother were consistent with her evidence.
The father deposed to being dismayed that X had to be put through these examinations and interviewed by police. He said he was relieved that X was fine but “more than ever concerned about [the mother’s] tendency to dramatise matters to the determinant (sic) of [X].” When cross-examined, the father acknowledged the mother did not make a direct accusation and did not suspend or interrupt X’s time with him during this time. He agreed his major complaint was that the mother did not communicate with him fully about what occurred. When asked for other examples from the evidence of what he claimed to be the mother’s tendency to “dramatise matters” to the detriment of X, the father responded that he did not think there are any others.

Having heard the mother’s oral evidence and viewed the tendered records, I am satisfied the mother acted appropriately by contacting the police, seeking medical advice from the hospital as recommended by the police, and then cooperating with the police and Child Protection. I do consider the mother ought to have informed the father of X’s attendances upon the hospital, police and DFFH. However, that she did not do so until her lawyers corresponded with his lawyers in May 2024 in my view supports that the mother was acting with X’s safety and wellbeing in mind and not to obstruct his relationship with the father.
On 4 April 2024, the parties met with the family report writer. The family report was released on 3 May 2024.
The expert report of the Country B legal expert was published on 16 May 2024.
Throughout this time, X spent time with the father in accordance with the February orders.
The final hearing
The final hearing was conducted over three days, from 27 to 29 May 2024. Both parties were represented by counsel, the mother by King’s Counsel, who I will refer to as senior counsel.
To the credit of the parties, their lawyers and counsel, the hearing was conducted efficiently and in a manner respectful of the parties’ future co-parenting relationship.
At the conclusion of the final hearing, the parties agreed for the time X spends with the father to be extended pending judgment. Reflecting that agreement, orders were made by consent on 29 May 2024 (“the May orders”) providing for X to spend time with the father on alternate weekends, from the conclusion of school on Friday until the commencement of school on Monday (so, for three nights each fortnight) and on Wednesday afternoons in intervening weeks. This arrangement accords with recommendations made by the family report writer if X remains living in Melbourne, save that it also incorporates X staying overnight with the father on Sunday. The May orders also provide for X to communicate with the father by facetime or telephone at 7.00 pm each Tuesday and Thursday and to communicate with the mother by facetime or video at 8.00 pm each night he spends with the father.
The parties’ current circumstances
The mother currently lives with X in the home she owns in Suburb C. X has his own bedroom but co-sleeps with the mother.
The mother is a self-employed professional, conducting a business in Country B. As acknowledged by the father in his trial affidavit, her work involves meeting clients and travel to overseas countries including Europe. Her business office is in City L, Country B, from which her four staff members work and where they meet clients and suppliers. She is currently operating that business from Australia, she says as best she can but with significant difficulties. She also teaches in Country B. The mother gave evidence she was due to recommence teaching in early 2024 but her class was cancelled when she was unable to return to Country B following the commencement of these proceedings. She is the ambassador for a professional network in Country B and has various commitments in Country B to fulfil that role. The mother deposed to a total (gross) business and rental income of approximately AUD$43,412 per annum, although her financial statement recorded her gross salary and rental income at $79,404 per annum. Her financial circumstances were otherwise detailed in her filed financial statement. This evidence was not challenged.
The mother has not re-partnered and does not live with any other person in Australia.
The father lives in a two-bedroom apartment in Suburb M with his partner, Ms D. The second bedroom is a study. X does not have his own bedroom and shares a room with the father and Ms D when he stays with them. To the family report writer, he described X sleeps on a mattress on the floor of his room. He told the family report writer he planned to set up a room for X if orders provide for ongoing overnight time. In his trial affidavit, he said he plans to transform the study into a bedroom for X when he feels comfortable sleeping by himself. When senior counsel for the mother put to him that he has not yet set up a bedroom for X because there is no point until he sees the outcome of these proceedings, the father agreed.
The father is employed full-time as a sales representative. He deposed he works mainly from home, from 9.00 am to 5.00 pm and has some flexibility in his work, including to finish at 2.30 pm on Fridays and make that time up elsewhere in the week. He gave oral evidence he likes to see customers face to face when he can and travels interstate for work maybe once a month for one to two days at a time. In his trial affidavit, he deposed to a base salary of $180,000 per annum. In his affidavit in reply, he estimated his taxable income at $280,000 for the financial year ended 30 June 2023. He is also a semi-professional entertainer. He gave evidence he has stopped his entertainment work on Friday nights to accommodate X spending overnight time with him and he informed the family report writer he was prepared to give up more entertainment work, if needed, to care for X. He has previously worked as an educator in South Australia and with community organisations.
The father pays child support of approximately $340 per week for X.
To the family report writer, the father reported Ms D does not take on a parenting role but joins him and X in activities on weekends.
X’s current circumstances
Pending the determination of these proceedings, X continues to live with the mother in Suburb C and now spends time with the father in Suburb M in accordance with the May orders, on alternate weekends and on alternate Wednesday afternoons.
He is in prep (his first year of school) at F School, approximately 15 to 20 minutes’ drive from the mother’s home and approximately 40 minutes from the father’s home. He attends afterschool care five days a week and swimming lessons weekly.
DOCUMENTS RELIED UPON
The documents relied upon by each of the parties are identified in their respective outline of case documents (“case outlines”). Those annexures to affidavits relied upon were tendered individually and marked as exhibits.
Among the tendered exhibits, the parties’ lawyers helpfully provided:
(a)A joint chronology;[4] and
(b)The joint minute setting out the orders the parties agree upon and the orders they each propose if X lives in Australia or Country B.[5]
[4] Exhibit A.
[5] Exhibit B.
An amended minute was also tendered on behalf of the father, updating his position after the parties and the family report writer had been cross-examined.[6]
[6] Exhibit F-5.
EVIDENCE
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject‑matter of the proceeding; and
(c)       the gravity of the matters alleged.
In assessing the evidence, I have applied the balance of probabilities as the standard of proof.
I have read and considered all of the evidence adduced by the parties, including tendered records. I have also had the benefit of observing the appearance and demeanour of the parties when giving their evidence. If I have not mentioned a piece of evidence or an argument presented at the hearing that does not mean I have not considered it. As the High Court said in Whisprun Pty Ltd v Dixon:[7]
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.
[7] (2003) 234 CLR 492 at [62].
General observations
I will make some preliminary observations in relation to the evidence of the parties and witnesses before considering their evidence in more detail as relevant to each of the statutory considerations and issues requiring determination.
The parties each gave evidence on affidavit in support of their positions. Understandably, their evidence has been given from their own perspective and focussing on matters that support their desired outcome. When cross-examined, both parties were responsive, answering questions put to them in a direct manner.
The father
That being said, I find the mother to be the more reliable historian, noting there were occasions the father said there were matters he could not recall when asked questions in cross-examination. A key example was that he said he could not recall if he had not seen X for one or two years in 2020/2021. By November 2021, it had been almost two years since X had been to Australia owing to COVID-19 travel restrictions and this is a significant matter I would have expected the father to recall when preparing his trial affidavit.
When cross-examined, the father resiled from statements attributed to him by the family report writer, although he had not sought to address those statements in his affidavits or when earlier asked if there were any errors in the family report he wished to inform the court of. For example, to the family report writer he contended the mother only became X’s primary carer because she actively excluded him from X’s life. When cross-examined, the father acknowledged the mother has not actively excluded him from X’s life and that this is not the only reason she is X’s primary care giver.
I agree with the submission of senior counsel of the mother that the father’s evidence conveyed a sense of entitlement to an uninterrupted life. Elements of his evidence, proposals and submissions displayed a focus more on his own circumstances and wishes than on X’s needs and interests and little regard to or empathy for the mother’s circumstances and, as I put to counsel, impressed me as displaying a somewhat controlling attitude.
By way of example, I refer to the father’s claim to the family report writer that “both parents were making sacrifices” and “that there were other things he could be doing on weekends instead of caring for [X].” The family report writer confirmed this was a matter raised by the father, not something she asked him about. This suggested to me a lack of insight into the heavy load carried by the mother as X’s primary carer and the impact on her of effectively being required to live in Australia against her wishes.
As another example, in his oral evidence the father suggested X attend a school half-way between his home and the mother’s home if he remains living in Australia, resiling from that position only once the potential impact on X was pointed out to him. He also maintained his proposal that if X lives in Country B, X’s travel to Australia coincide with the Australian long summer school holidays, notwithstanding that would not coincide with the Country B school holidays and would require X to miss school.
The father did not depart from his primary application for an order restraining the mother from travelling to Country B with X without his express written agreement, even at the conclusion of the case. Whilst the order sought by the father was expressed as an injunction to apply mutually to both parties, such an order would operate primarily against the mother given her circumstances and ties with Country B and would put her future travel with X to Country B in his hands.
The father’s initial decision to defer notification and service of his application and of X’s name being placed on the Watchlist also in my view demonstrated an attitude from the father that he was best placed to decide when that information should be shared with the mother and when.
Notwithstanding these observations, I do not doubt that the father genuinely cares for X and wishes to spend time with him regularly.
The father’s witnesses
The father’s witnesses were not required for cross-examination and their evidence is therefore unchallenged.
Mr N
Mr N is the father’s father and X’s paternal grandfather. He made an affidavit in support of the father’s application.
The paternal grandfather is retired and lives on a property in regional Victoria, approximately 3 hours from X’s home with the mother. He first met X in 2019, when X had just turned one.
The paternal grandfather described that he has a good relationship with the mother and that she has been in regular contact with him, sharing photos and updates about X. He described that he has seen X on four occasions since X and the mother arrived in Australia in September 2023. One was a short visit, described as “a quick visit and a cup of tea” on the way to a camping trip in late 2023. The other three occasions were overnight visits facilitated by the mother, at her home, the paternal grandfather’s property and at a holiday rental in Town O. On those occasions the mother facilitated X spending time at the paternal grandfather’s property and other activities together including fishing in Town O and and other local attractions. The father also deposed to dropping in to see the paternal grandfather with X in late 2023 and staying overnight at his property again in early 2024.
The paternal grandfather described his relationship with X as strong and that X has “cemented himself” into his life. He deposed X calls him “Grandpa” and they enjoy spending time together. He said the mother and X communicate with him in English and observed X’s English has improved since he commenced school in January 2024. He deposed he usually phones the father and X on Saturday morning.
That X enjoys such a close relationship with the paternal grandfather and that the mother has directly facilitated that relationship from Country B and while in Australia is a credit to the mother and demonstrates her commitment to supporting X’s relationship with his paternal family.
Ms D
Ms D is the father’s partner. She described that they have an open relationship and that her relationship with the father is her primary relationship. They have lived together in the father’s property since late 2019. Ms D made an affidavit in support of the father.
Ms D was born in Country P and moved to Australia in 1989 at the age of eight. Ms D is an Australian citizen and deposed her parents and brother live in Western Australia. She is employed full time, living and working three days per week in Town Q and the balance of the time living with the father in Suburb M, working from home or at Suburb R.
Ms D described the time X spends with her and the father, including routines they have established in their home with X. For example, she colourfully described X helping her cook on Friday nights and the conversations they have over dinner, conversing about their days, singing songs and telling jokes. Ms D described that X’s English has improved now he is at school. She said X tells them about his friends at school, his teachers and activities he has done at school. She described the complex game constructions X has been working on with the father, playing card games, watching television and listening to records together, singing and making up songs, and taking outings. She said X calls the father his “best friend”.
The mother
The mother impressed me as genuinely concerned to promote a relationship between X and the father, notwithstanding the circumstances and nature of her own relationship with the father.
Her evidence was candid and demonstrated humility in the way she readily reflected on how she might have handled some situations differently. For example, she explained she did not continue to require X’s time with the father to be in her presence once her former barrister described the FDR practitioner who had advised her to supervise X’s time with the father as a “shit mediator”. She said this accorded with her own feeling but that she had followed the mediator’s advice given that person was a professional. When tested about concerns she had expressed about aspects of the father’s parenting giving rise to her decision to require X to spend time with the father only in her presence, she provided numerous examples of her concerns including of occasions she considered the father had not adequately supervised X. She acknowledged in hindsight she may have been overprotective, relying on the advice of the mediator. Another example is the mother’s evidence in relation to the way she responded to X’s red bottom in early 2024.
Importantly, the mother gave evidence with apparent ease of numerous good qualities she sees the father offers to X, as his father, and she appeared genuine in her desire to support their relationship.
Single expert witnesses
Dr H
The family report writer, Dr H, is a forensic psychologist appointed as a single expert to undertake an assessment of the family and prepare a family report. Neither party challenged her expertise and her family report dated 3 May 2024 was relied on by both parties.
The family report writer’s oral evidence was given with the benefit of having been provided with the parties’ trial documents and subpoenaed material. Her expert opinions did not change after reading that material and being presented with oral evidence given by the parties at the final hearing. When giving her oral evidence, the family report writer carefully considered the questions and new evidence put to her, reflecting on and elaborating on the evidence given in her report.
I have considered the family report writer’s evidence carefully, along with all other evidence. I put significant weight on this evidence given the expertise of the family report writer and her role as an independent single expert.
Ms G
The Country B legal expert, Ms G, is a lawyer practicing in Country B. She is the director of a law association and head lawyer of the family law department at J Law Firm. She is a fellow of an institute of international lawyers, recognising her particular expertise in international family law matters. She was engaged by the parties as a single expert pursuant to the March 2024 orders, to provide a report in relation to the making of reciprocal parenting orders in Country B. Her report was prepared in English and responded specifically to a number of questions put to her by the parties’ lawyers. The Country B legal expert gave evidence electronically using Microsoft Teams. She was cross-examined with the assistance of an interpreter who attended at court.
In summary, the Country B legal expert gave expert evidence to the following effect:
(a)Orders made by the Federal Circuit and Family Court of Australia cannot be registered in Country B;
(b)Parenting orders made by a foreign court may be directly recognised in Country B if the children involved in the foreign court proceedings can directly express their views to the family judge in the foreign court and there is a court hearing record;
(c)Describing mediation procedures which can be utilised in Country B for parties to reach agreements with the same effect as court orders;
(d)Describing law-suit procedures available in Country B if mediation fails, where orders made by the Australian court may serve only as the basis for evidence in the formal litigation proceeding;
(e)Explaining how Country B courts determine the best interests of children in the event of litigation, and describing the process to change parenting orders in Country B;
(f)Confirming the father has standing to seek orders from the Country B courts even though he does not have the status of residence or citizen in Country B and has not been married to the mother; and
(g)Describing the enforcement processes for Country B orders and mediated agreements, including limitations where enforcement would be contrary to the free will of a child.

In response to a call by senior counsel for the mother, the father produced an email sent to his lawyers by another lawyer in Country B, Ms T of S Law Firm, on the evening of Friday 24 May 2024.[8] The email referred to a phone call the same morning with the father’s lawyers and stated a parenting arrangement can be “registered with the local authority”. Attached to the email was a template “Agreement on Rights and Obligations of Minor” and a “case summary […] about a judgment in which a [Country B] court grants permission to enforce an Australian judgment”. That case summary was dated mid-2007, so almost 17 years old. Notwithstanding the summary was dated from 2007, it referred to a judgment from Australia from 2008. I do not put any weight on the advice provided by Ms T in the jointly tendered letter, in the following circumstances:
(a)Leave was not sought by the applicant to adduce evidence from another legal expert, on notice, in proper form on affidavit with the expert available for cross-examination;
(b)Evidence was not adduced as to the expertise of the author;
(c)It is apparent there had been a conversation between the author and the father’s solicitors, the contents of which were not disclosed; and
(d)The email was not disclosed until called for, meaning the mother’s solicitors had not had an opportunity to consider it until partway through the hearing.[9]
[8] Exhibit C.
[9] Noting the requirements of Part 7.1 and the provisions of rule 6.17 of the Rules.
When the Country B legal expert was asked by counsel for the father if Australian parenting orders cannot be automatically registered with the family court in Country B, the Country B legal expert answered, “Correct. We don’t have this system”. When counsel for the father put to the Country B legal exert that there is something called a household authority in Country B (as was described in the email from Ms T), she answered, “No. No.”
LEGAL PRINCIPLES
This case has been described by the parties and their lawyers in their court documents as a relocation case. Senior counsel for the mother challenged that categorisation, emphasising the mother seeks to return to live with X in Country B, rather than relocate to live with X in Country B. Regardless of how the case is categorised, as senior counsel for the mother submitted, relocation cases are not to be treated as a special category of case and are to be determined like all parenting matters. This requires a consideration of X’s best interests in the context of the legislative framework provided by Part VII of the Family Law Act 1975 (Cth) (“the Act”) relating to children.
The mother seeks an order that she be “permitted” to relocate to Country B with X. In Wagstaff & Wagstaff,[10] Aldridge and Jarrett JJ noted that such language was the subject of criticism by the High Court in AMS v AIF.[11] In particular Kirby J explained in AMS v AIF:[12]
…it would be preferable that such references to “permission” to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. … To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child’s welfare, to the competing needs and demands of the parents in conflict.
[10] (2022) FLC 94-098 at [12]-[13].
[11] AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at [188] (per Kirby J) and at [217]–[218] ( per Hayne J).
[12] At [188].
A parent is entitled to live where they choose and there is no requirement for a parent to demonstrate a “compelling reason” to live where the parent proposes to live.[13] As the Full Court explained in Adamson & Adamson:[14]
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[13] U v U (2002) 211 CLR 238 (“U v U”) at [82], citing AMS v AIF.
[14] (2014) FLC 93-622 at [66].
Accordingly, there is no onus on the mother to demonstrate why X should live in Country B. It is not simply a matter of comparing the mother’s proposal against the status quo and allowing or denying her application to live with X in Country B. Instead, the inquiry is to consider what each parent proposes for X and to determine the context of those plans and reasons for them in determining what is in his best interests.[15] As far as possible, the mother’s proposal for X to live in Country B is not to be dealt with as a separate or discrete issue, but rather as just one of the proposals for his future living arrangements.[16] The court is required to identify and evaluate each of the proposals advanced by the parties.[17] This requires weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for X’s best interests.[18] However, subject to the parties being afforded procedural fairness, the court is not bound by the parents’ proposals in determining what is in his best interests.[19]
[15] Malcolm & Monroe(2011) FLC 93–460 at [83], referring to AMS v AIF at [179] and U v U at [259-260].
[16] Taylor & Barker (2007) FLC 93–345 (“Taylor & Barker”) at [53], citing U v U and KB v TC (2005) FLC 93-224.
[17] A v A: Relocation Approach (2000) FLC 93-035 (“A v A”) at [65]-[66] and [82], referring to AMS v AIF and Paskandy v Paskandy (1999) FLC 92-878.
[18] A v A, confirmed in Taylor & Barker.
[19] U v U at [80].
That the mother advanced an alternate position, if her application to live with X in Country B is not granted, is not determinative and her “fall-back” position should be considered only if her primary proposal is not accepted.[20] I view the father’s alternate positions in the same way.
[20] Asher & Wilkinson (2020) FLC 93–945 at [100], referring to U v U.
The above principles have been consistently applied by the court notwithstanding subsequent amendments to Part VII of the Act. There was no suggestion by counsel that recent amendments to Part VII by the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”), including to the objects of Part VII of the Act, result in any changes to those principles, albeit the considerations to be taken into account when determining a child’s best interests have changed with those amendments.
Objects of Part VII
The objects of Part VII of the Act, as amended, are set out in section 60B, as follows:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Those objects provide context and assist with interpretation of Part VII, and I have had regard to them.
Whist counsel for the father referred to a number of articles of the Convention on the Rights of the Child (“UNCROC”) in support of the father’s case, she did not make any submissions as to how those articles influence my interpretation or application of the required considerations in Part VII.
Best interests of children
Section 65D(1) of the Act provides that, subject to some other provisions, the court may make such parenting order as it thinks proper. Section 60CA makes clear that in deciding whether to make a particular parenting order, a court must regard the best interests of a child as the paramount consideration. In determining the best interests of a child, section 60CC(1)(a) provides the court must consider the matters set out in section 60CC(2), which are identified as general considerations. The considerations in section 60CC(3) do not apply in this case as X is not an Aboriginal or Torres Strait Islander child.
In making my decision, I have considered all of the sections of the Act relevant to this matter. I am not required to specifically address each provision in my reasons and if I have not mentioned a specific provision that does not mean I have not considered it.
GENERAL CONSIDERATIONS
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child): section 60CC(2)(a)
When considering those matters in section 60CC(2)(a), I am required to consider the matters set out in section 60CC(2A) as follows:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Happily for X, these considerations do not apply to his family. Neither party alleged a history of family violence, abuse or neglect involving X or a person caring for him. I refer to the mother’s actions taken in response to X’s red bottom in early 2024 and note it was not submitted the mother made any allegation that X had been sexually abused. There have not been any family violence orders relating to X or the parties. The father’s counsel submitted the conflict between the parties is not so high in this case as to expose X to a risk of harm and I agree with that submission.
The father did raise in his trial affidavit, concern about “the possible instability of [Country B]”, deposing he has read several articles outlining tensions in the region. However, he did not adduce any expert evidence on this issue or point to any Australian government travel advice warning against travel to Country B. The mother gave evidence she keeps a close eye on the political situation in Country B, is very aware of the situation and that is why she asked the father for X’s Australian passport. She explained having X’s Australian passport is very important to her, so that if she senses there is an issue, she can leave Country B with X and get back to Australia. This evidence is consistent with the mother pressing the father to provide her with X’s Australian passport before her intended return to Country B with X and I accept it. I am not persuaded X will be unsafe living in Country B with the mother.
Any views expressed by the child: section 60CC(2)(b)
The father deposed X has said to him things out of the blue when returning to the mother’s home, such as “I want to go to [Country B] so I can speak [Language B]”, “All my friends are in [Country B]” and “My family all live in [Country B].” He deposed these comments sounded like they were rehearsed but it was not put to the mother or submitted on behalf of the father that the mother has encouraged X to make such remarks. The mother gave evidence X identifies as being Country B and often asks her, “When are we going home?”.
The family report writer reported X showed a resistance to engaging with her and was reluctant to answer questions. Due to his behaviour and attitude during the interview, she was unable to gain an understanding of his experiences with either parent or his preferences regarding his time spent with the father.
X’s views as expressed to his parents are consistent with him having lived predominantly in Country B until September 2023 and sharing close relationships with his maternal relatives after living with them for that time. This was not a matter in dispute. I otherwise do not put significant weight on X’s views as expressed to his parents, given his young age (X is only five) and stage of development, meaning it is unlikely he has the capacity to appreciate the implications of the parties’ proposals for his future living arrangements.
The mother was cross-examined about subpoenaed records of X’s interview with Child Protection which recorded the following conversation with X in early 2024:[21]
[21] CP referring to the questions asked by Child Protection worker and X referring to X’s responses.
CP:     who else is in your family?
[X]:     one
CP:     who?
[X]:     mummy
CP:     dad?
[X]:     no
[X]:     all my family is in [Country B]
CP:     is your dad in Australia?
[X]:
This part of the record of interview was in the context of X failing to answer numerous other questions asked of him by the Child Protection worker. This appears consistent with the family report writer’s endeavours to engage with X a short time later, in early 2024, and her report that X displayed reluctance to answer her questions, responding with either silence or “I don’t know”, regardless of the topic discussed.
In a summary of Child Protection’s interview with X, set out separately in the subpoenaed records, it was reported, “When asked about his father he stated he does not have one, when asked about other family members he advised they are all in [Country B].” This however is not an accurate reflection of the record of interview. X was not recorded in the transcript of interview as saying he does not have a father. I am not satisfied any inference can be drawn from this interview that X does not have a good sense of his relationship with the father. I do however observe that it appears he views his family unit as including his extended maternal family in Country B. Again, this is understandable given X lived predominantly with members of his extended maternal family until September 2023.
The developmental, psychological, emotional and cultural needs of the child: section 60CC(2)(c)
Counsel for the father submitted in her closing address there are no difficulties to be taken into account pursuant to sub-section 60CC(2)(c), pointing only to X’s cultural needs in relation to this consideration. I do not agree with that submission. This consideration is, in my view, of particular relevance to key aspects of the parties’ proposals, including:
(a)The mother’s proposal for X to live in Country B and to maintain a long-distance relationship with the father, requiring consideration of X’s capacity, developmentally, to sustain that type of a relationship; and
(b)The father’s proposal for X to live in Australia with the prospect of the mother travelling overseas for work and leaving X in the father’s care, requiring consideration of the impact on X of being separated from the mother for extended periods.
Counsel for the father also raised the issue of X’s English language development and capacity to communicate with the father.
I have considered X’s developmental, psychological and emotional needs in the context of these matters in particular, but also in respect of the parties’ proposals more broadly.
X is only five years old. He will turn six in 2024. It is not in dispute he remains dependent on his parents for his physical and emotional care and that the mother has been primarily responsible for meeting those needs to date.
Maintaining a long-distance relationship with the father
Senior counsel for the mother submitted X is of an age and developmental stage that he can retain a positive image of the father and maintain a relationship with him from Country B, by spending time with him periodically and communicating via phone and video. This was supported by the expert evidence of the family report writer who reported:
[…] the father’s current request for time with [X] every alternate weekend suggests more of a desire for ongoing contact rather than assuming a full parenting role. This ongoing relationship could still be maintained long distance through regular phone calls and holiday visits.
The father deposed to his concern that X’s current bond with him is not strong enough to withstand the distance between them, if X lives in Country B. In response to the proposition put to her by counsel for the father, that keeping X in Australia for two more years would allow X to spend a bit more time with the father and build their relationship so it is more likely to withstand an international relocation, the family report writer said she expected that would benefit X and his relationship with the father. The family report writer agreed with the further proposition put to her that this would give “runs on the board” in respect of the regularity in time X has been spending with the father and the closeness between them, established by the February orders. However, the family report writer was not challenged in respect of her evidence that X could maintain an ongoing relationship with the father, long distance, through regular phone calls and holiday visits.
Language development
X speaks Language B and English. The father speaks English. The mother’s first language is Language B. She also speaks English and having heard her oral evidence given without the assistance of an interpreter, I observe she does so very well. The mother deposes she and X mostly speak Language B at home. Her family in Country B speak Language B. X communicates with the father and the father’s family in English. Ms D deposed she has a Country B background and does not speak Language B.
X has this year started school in Australia, where the curriculum is taught in English. The father deposed X’s school teacher has expressed concern about X’s ability to read and write in English and sent the parties an email in mid-2024 asking them to continue to read with X at home. This was the extent of intervention and recommended support the father deposed to. He otherwise said X’s school has reported X is an outgoing student and his English is improving. The father also deposed to his own observations that X’s English has noticeably improved and he is starting to be able to read English. In his affidavit in reply, the father deposed X’s English has improved significantly this year and that their communication has continued to improve now he is learning English at school and they have been spending time together on Friday evenings. The father deposed that in early 2024, the mother informed him she had enrolled X in a reading club to assist him with his English and the mother confirmed she has arranged for X to attend extra reading classes.
The mother gave what impressed me to be frank oral evidence that, compared with other students in his class, X’s English is not that good but that his Language B is not that good either.
In his case outline, the father submits “it is unknown whether [X] will have a proper command of English to even communicate with his Father by skype or zoom let alone when they spend time together in the school holidays.” He contends this is “somewhat conceded” by the mother in her interview with the family report writer, where she outlines X could attend high school in Australia to master the English language.
Importantly, the father did not give evidence he has experienced any difficulty communicating with X during their time spent together or their phone or electronic communications. The evidence of the paternal grandfather and Ms D did not raise any concerns about their ability to communicate with X in English and Ms D’s evidence described interactions with X involving conversations, jokes and singing. The father’s counsel was unable to point me to any evidence of such difficulties.
Conversational English is quite a different thing to learning to read in English or to “master” English in secondary school as suggested by the mother. Language does not appear to have imposed any impediment to X developing a relationship with the father to date. This is apparent from the close relationship they now share. I am not persuaded there is a language barrier that will prevent meaningful communication continuing between X and the father if X lives in Country B.
It is not in dispute that if X lives in Country B, he will continue to communicate regularly with the father, providing him with a regular opportunity to practice his English. When in Country B, the mother said X watches English-speaking television programs. She said she will mostly speak Language B with X in Country B but sometimes in English. She gave evidence about classes taught in English at the schools she is considering for X in Country B. On the mother’s proposal, X will spend time with the father over four periods of time each year, twice in Australia. The mother continues to contemplate X may return to Australia for his secondary education, depending on his circumstances and views at that time. In light of this and all of the other evidence put to me, I am satisfied the mother will continue to support X learning English, and in turn support X’s communications with the father and his paternal relatives.
Being separated from the mother for extended periods

The father proposes if the mother travels to Australia with X at other times, she notify him no less than 30 days prior to travelling and X spend time with him for at least three consecutive nights. The mother seeks an order in like terms.
The parties each also seek orders to facilitate communication between both parents, including in particular if X lives in Country B. I take that into account when considering their proposals but will return to consider the specific term of order for communication separately.
In Country B, the mother intends to live with X with her parents in their home along with her brothers and their families. The mother deposed she plans to obtain independent accommodation for her and X in Country B for the longer term and gave oral evidence she hopes to do so within one to two years.
X’s kindergarten in Country B is close to the mother’s home with her family. A place has been kept for him in anticipation of his return to Country B. X would commence school in Country B when he turns six in 2024. The mother deposed to three school options available for X in Country B, including attending a school with his cousins. When cross-examined, she gave evidence about the schools she has considered, including their teaching philosophies and how she thinks they might suit X’s personality. She said English is now a compulsory subject in most Country B schools. When cross-examined, the father acknowledged he had not made specific enquiries of schools in Country B for X but that his preference is for X to attend a bilingual school so that he can continue to learn English. The mother deposed to her intention to involve the father in the decision of which school X attends. The father says he is confused by this statement given the mother seeks sole decision-making responsibility for X. I note the order the mother seeks provides for her to consult with the father before making decisions about X which is consistent with the evidence she has given of her intention to involve the father when making a decision about X’s school.
The mother deposed she contributes AUD$250 per month to the costs of her family’s household in Country B and that she can afford the cost of travel to Australia with X in accordance with her proposals. The father seeks an order requiring the mother to meet the costs of X’s travel to Australia, on all four occasions each year pursuant to his proposals. Submissions were not made on his behalf as to why the mother should meet all of those costs.
Having considered the parties’ proposals, I find the key advantages to X of living with the mother in Country B as she proposes include:
(a)The mother would have the support of her family, including for her personal support and to assist with X’s care;
(b)The mother could continue to operate her business and undertake her teaching work in Country B and overseas, providing her with the ability to support herself and X financially, assisted by child support paid by the father;
(c)X would be returning to a place where he lived predominantly until September 2023, to the household he was living in until that time with members of his extended maternal family, and where he has established friendships;
(d)X would see his cousins regularly in Country B, initially living with two of them mid-week as he did until September 2023, which I consider to be of particular benefit to him given he does not have siblings;
(e)The mother would be living in her preferred location, with her family, reducing her feeling of isolation in Australia and increasing her happiness. I accept this would likely have a positive flow on effect to X given she is primarily responsible for his care and will continue to be so, on both parties’ proposals;
(f)X would spend time with the father in Australia during Country B school holidays, spending periods of increasing duration with him as he gets older, without interruption to his schooling; and
(g)If the father travels to Country B as proposed by the mother, X would also benefit by spending time with the father in Country B and sharing with the father his life in Country B and his Country B culture.
Those advantages are to be weighed against the disadvantages of X living in Country B, including:
(a)X would not be able to spend regular time with the father during school term periods, on alternate weekends and mid-week in alternate weeks. I accept this would not be ideal for X having regard to the following evidence of the family report writer:
a.   Regular and consistent contact fosters a stronger bond between the parent and child. Building a close relationship requires spending quality time together, which is difficult to achieve with infrequent visits
b.   Children benefit emotionally from having regular contact with both parents, providing them with a sense of security, stability and belonging.
c.   More frequent visitation enables both parents to be actively involved in their child’s life. They can participate in important events, activities, and routines, fostering a sense of connection and involvement in the child’s upbringing.
d.   Spending more time with the child provides opportunities for parents to develop and refine their parenting skills. They can learn to effectively communicate, set boundaries, and address the child’s needs through hands-on experience
e.   Regular visitation helps maintain consistency in the child’s routine, including mealtimes, bedtime, and other daily activities, supporting their sense of security and stability
However, I note the evidence indicates the father has not taken up the opportunities available to him to be actively involved in various aspects of X’s life including participating in important events, activities and routines for X. As observed by the family report writer, their time together is mainly confined to alternate weekends and holidays (now also on alternate Wednesday afternoons pursuant to the May orders) and has historically focused on recreational activities rather than taking on shared parental responsibilities. I also note the father has not taken up all opportunities to develop and refine his parenting skills. He did not enrol in the Triple P parenting course until very shortly before the final hearing and there is no evidence he has sought individual support from a parenting clinician as recommended by the family report writer;
(b)X’s opportunity to spend regular time with his extended paternal family would be limited, over two periods of time each year in Australia, unless those family members accompany the father to Country B for X to spend time with them there;
(c)X would not have the opportunity to spend Christmas with the father and his paternal relatives unless they travel to Country B because the Country B school holidays do not commence until January; and
(d)X would be required to change schools, having only recently commenced his first year of school. I note though, this did not appear to trouble the father particularly, who initially proposed in his oral evidence that X move to a school midway between the parties’ homes if he continues to live in Australia. The mother reported to the family report writer she has continued to pay fees for X in Country B to secure his place in the same class he had been attending since 2021, meaning he would be returning to a familiar environment and classmates if they return to Country B.
X living in Australia
The father’s primary proposal, for X to live in Australia would see X continue to live with the mother and to spend time with him as he now does pursuant to the May orders, along with time for several identified special occasions and during school holidays.
This proposal holds the following key advantages for X:
(a)X would spend regular time with the father, on alternate weekends, mid-week in alternate weeks, and during school holidays, with the particular benefits outlined by the family report writer above;
(b)X would have increased opportunities to spend time with his extended paternal family; and
(c)X would not be required to change schools.
Those advantages are to be balanced with the following disadvantages:
(a)The mother would be required to live in Australia with X where, she I accept, she is unhappy and feels isolated. This is likely to have an adverse impact on X given she is his primary carer;
(b)The mother would be unable to operate her business as well as she can from Country B and be unable to maintain her teaching position, impacting her capacity to generate an income to support herself and X;
(c)If the mother travels to Country B for work for extended periods without X, to attend to her business as she deposes is required to maintain it, I accept the expert evidence of the family report writer of the detrimental impact that will likely have on X given his young age and attachment with the mother;
(d)The father’s proposal does not include any provision for the mother to travel with X to Country B, without his consent. It is not clear in what circumstances the father would agree to him travelling, given the concerns he has raised about the mother failing to return X to Australia from Country B. I am therefore unable to assess how frequently (if at all) X would be able to travel to see his maternal family and friends in Country B and experience his Country B culture if the father’s proposal was adopted. I could instead make orders in accordance with the mother’s alternate proposal, advanced by her if X lives in Australia. Her proposal would allow either party to travel internationally with X on no less than 30 days’ notice, subject to the provision of a travel itinerary, proof of necessary vaccinations, other information and appropriate “make up” (compensatory) time with the other parent. Whilst this addresses some of the disadvantages of the father’s proposal, periods of extended travel with the mother to Country B beyond school holiday periods, including for her to attend to her business, has the disadvantages for X identified by the family report writer of disruption for him, potentially affecting his academic progress, social development, and general well-being. If they were to travel only during school holidays this would reduce the opportunity for X to spend holiday time with the father; and
(e)The mother would not have the regular support of her family, including to assist with X’s care, limiting work and social opportunities for her. She would not have her mother’s regular assistance with cooking and domestic responsibilities. The mother does not have a partner or family in Australia, meaning these responsibilities rest on her shoulders, reducing the time she has available to devote to X.
Determination of X’s living and care arrangements
Considering all of the above matters and weighing up the advantages and disadvantages to X of the parties’ proposals as summarised above, I find it is in X’s best interests to live with the mother in Country B. In doing so, I put most weight on:
(a)The needs of X at his age and stage of development, which are met primarily by the mother as his primary carer;
(b)The mother’s demonstrated capacity to meet those needs, including to support X’s relationship with the father since he was born, living in Country B for much of that time;
(c)The benefit to X of supporting the mother’s capacity to provide for his needs, as the person primarily responsible for his care, including by providing her with access to the support provided by her family and the ability to resume working overseas; and
(d)The mother’s freedom of movement.
I have considered the father’s alternate proposal, that X living in Country B with the mother be deferred until mid-2026, to provide time for X’s relationship with the father to further develop.
In doing so, I have taken into account in particular the following evidence of the family report writer when asked by counsel for the father if this sort of proposal would allow for the parties’ co-parenting relationship to get back on track and be in X’s best interests:
… if it’s a case if [the mother] can stay in Australia and they can effectively co-parent in that time, for those two years, then yes, you would imagine it would be a great opportunity to build trust, build co-parenting relationship, build [X]’s relationship with his father. There is always the opposite, the other end, that if [the mother] can’t remain in Australia, and what the potential impact of that is on [X] or [the mother’s] emotional state.
I have also considered the family report writer’s further oral evidence about this proposal outlined earlier in my reasons, in the context of considering X’s developmental capacity to maintain a long-distance relationship with the father.
After evaluating the father’s alternate proposal, with consideration given to the family report writer’s expert opinion and all of the matters already traversed in my reasons, I am not persuaded it is in X’s best interests to live in Australia for a further two years. The advantages to X of this proposal, as identified by the family report writer, are in my view outweighed by the disadvantages of him remaining in Australia and the advantages to X of promptly returning to live in Country B with the mother.
The orders I make will provide for X to live with the mother and to spend time with the father until such time as he lives in Country B (consistently with the May 2024 orders) and then upon him living in Country B, in accordance with the mother’s proposals. The date from which X lives in Country B may be as soon as the mother considers appropriate and makes arrangements for their travel.
In relation to the time X spends with the father once he is living in Country B, I prefer the mother’s proposals for X to spend time with the father in Australia and Country B. This will see X share in the father’s life in Australia and spend time with his paternal family in Australia and also see the father share in X’s life in Country B. It will also see the parties share responsibility for supporting X’s relationship with the father, including sharing the responsibility and cost of travel. I find these arrangements to be in X’s best interests.
In addition to the arrangements proposed by the mother for X to spend time with the father, I will also make an order providing for X to spend time with the parties on the special occasions proposed by the father if X and the father are both in Melbourne or are both in Country B, but simplified so there is no rotation in alternate years given the father and X may not be in the same location each year. The mother identified Christmas is a time of significance for the father and his family, so I will make provision for X to spend time with the father each Christmas they are in the same location. Likewise, the mother gave evidence Lunar New Year is an important occasion for her family, so I will include provision for X to spend that time with her along with other special occasions as proposed by the father if they are in the same location while X is spending time with the father.
Changeover
While X is living in Melbourne, the father seeks changeovers that do not occur at school take place at McDonalds in Suburb K. Where there are no family violence concerns, I find it is in X’s best interests for changeover to take place at the mother’s home as proposed by her.
Communication
I was not addressed by counsel in respect of the different terms of orders proposed by each of the parties in relation to communication between X and his parents. I will make the orders proposed by the mother for X to communicate with the father whilst in her care. I will also make the order sought by the father providing for X to communicate with the mother whilst in his care and including a requirement for the father to facilitate those communications. I will also include provision for the mother to facilitate communication between X and the father on the further special occasions proposed by the father including Easter Sunday, Father’s Day and the paternal grandfather’s birthday. I will make the order proposed by the mother for the parties to facilitate X communicating with each of the parties at his reasonable request. Whilst I am hopeful the parties will be able to resume their previously cooperative co-parenting relationship with these court proceedings behind them and will not require this level of regulation of X’s communications with them, the orders I make will put in place a structured arrangement for those communications in case that does not occur.
I will make the order sought by the father requiring the mother to facilitate X receiving cards, gifts and letters sent by the father for X and for X to open gifts from the father and his family when communicating with the father by video. I do not consider it is necessary to make an order requiring the mother to facilitate the sending of such items from X to the father, given the other orders made in respect of electronic communication and having confidence she will assist X to send mail to the father if he wishes to do so.
Where there was no evidence of difficulties in communication between the parties about X or family violence concerns, I will not make orders regarding the parties’ mode of communication as proposed by the father.
Parental responsibility / decision making
Section 61C of the Act provides that each of the parents of a child has parental responsibility for the child, subject to any order of a court. This is the case despite any changes in the nature of the parents’ relationship. Parental responsibility is defined by section 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61CA of the Act encourages the parents of a child, if it is safe to do so and subject to any court orders, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interest of the child as the paramount consideration.
Section 61D(3) provides that if a parenting order deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child, that order may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Major long-term issues in relation to a child are defined in section 4(1) of the Act as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Section 61DAA requires that if a parenting order provides for joint decision-making in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of those persons to consult with one another in relation to each such decision and to make a genuine effort to come to a joint decision.
Following amendments to Part VII of the Act by the Amendment Act, there is no longer any presumption in relation to the allocation of parental responsibility by the court and the court’s focus is to be on the needs and best interests of the individual child.
The father seeks an order for the parties to have joint decision-making responsibility for making major long-term issues in relation to X. On the one hand, he submits the parties have demonstrated their ability to communicate well with one another in relation to X’s health and educational needs. He gave oral evidence the parties were communicating well, including in relation to matters such as X’s schooling, until a matter of weeks before he initiated these proceedings. On the other hand, he deposed the mother has made medical appointments for X and not informed him until afterwards. He also complained of the mother enrolling X to attend sports and reading classes which I addressed earlier in my reasons. He expressed concern that if X lives in Country B and the mother has sole decision-making responsibility, this will “further alienate” X from him.

The mother seeks sole decision-making responsibility in respect of all major long-term issues for X, with a requirement for her to consult with the father and consider his views when making decisions about X’s education and medical treatment. This is her position whether X lives in Australia or in Country B.
First, I reject any suggestion the mother has alienated X from the father. To the contrary, I find the mother has actively supported X’s relationship with the father. Whilst the father deposed it is only since instituting these proceeding that he has been informed about X’s health concerns, he did not point to any evidence that he had sought to be involved in such matters prior to commencing these proceedings. My impression is as described by the family report writer, that the father had not sought to take an active role in X’s care or decision-making for him until initiating these proceedings:
The current evaluation suggested that the coparenting dynamic between the mother and father has traditionally involved the mother as the primary caregiver and decision maker, while also facilitating a relationship between the father and child. There is no indication that the father previously pursued an active parenting role, even now only proposing alternate weekend care, or took on decision making responsibilities, such as researching primary schools in a timely manner. While the mother may have contributed to this dynamic, particularly in terms of resisting time, her concerns were more related to the father’s perceived lack of parenting skills and experience rather than a desire to exclude him from the child’s life.
It is not in dispute the parties have been able to communicate with one another and consult in relation to X, although they acknowledge the present dispute has impacted their otherwise cooperative co-parenting relationship. Somewhat ironically, given his objection to X’s overseas travel with the mother, in support of his application for an order providing for the parties to have joint responsibility for making long-term decisions about X, the father points to the parties agreeing to X travelling between Australia and Country B on more than four occasions prior to these proceedings, as an example of their cooperative co-parenting capacity. He also points to his evidence of the parties’ communications in relation to X’s primary school attendance.
The family report writer recommends the mother have sole parental responsibility[38] for X provided she keeps the father informed of significant long-term decisions and seeks the father’s input on such issues.
[38] The family report refers to the allocation of parental responsibility generally, being prepared prior to amendments made to the Act by the Amendment Act which provide specifically for the making of parenting orders allocating responsibility for making decisions about major long-term issues in relation to a child.
I find it is in X’s best interests for the mother to have sole responsibility for making major long-term issues in relation to X’s education and health, being issues that will require regular interaction with X’s school(s) and other education providers and doctors and other health professionals, having particular regard to the following matters:
(a)I find the mother is best placed to make those decisions being the parent who will be living locally to and interacting with those providers and fluent in Language B;
(b)The mother has made decisions about X to date without any complaint by the father in respect of the decisions she has made or respect of her keeping him informed about X’s education, health and medical care, save for what I consider to be relatively minor matters;
(c)The father has not previously travelled to Country B to share in X’s life there. He has now indicated a willingness to do so but has not yet shown that commitment;
(d)The father gave oral evidence that he has not made enquiries of any schools for X in Country B, notwithstanding his proposal for X to attend an international school if he lives in Country B;
(e)The father acknowledges he is still building his understanding of child development and parenting skills. The family report writer assessed, “he may not yet possess the knowledge or experience required to make decisions in the best interests of [X].” This raises doubt about his ability to contribute meaningfully to decision-making about educational and health issues for X at this point; and
(f)The family report writer assessed the father has “poor communication skills”, displayed “rigidity” and “appeared entrenched in his opinions, displaying difficulty in being open to challenges or alternative perspectives.” When asked by senior counsel for the mother if he can be rigid, he answered “possibly” and agreed his failure to undertake the parenting course until shortly before the final hearing when recommended by the family report writer was “possibly” an example of this. The family report writer’s assessment was consistent with my impression of the father’s evidence and I find the father’s rigidity, poor communication and somewhat controlling attitude, is likely to make it difficult for the mother to easily consult with him for the purpose of making joint decisions.
I will however make an order requiring the mother to invite the father’s views before making non-urgent decisions in relation to education and health matters of a major long-term nature, to consider any views the father provides before making a decision and to then keep the father informed of decisions she makes. The order I make will differ from that proposed by the mother, in that it will require the mother to invite the father’s views not obtain them, in case he does not respond. I will also provide an exception to this requirement where urgent decision-making is required and it is not practicable for the mother to seek the father’s views, recognising it may not be possible to invite, receive and consider the father’s views where urgent decision-making is required, such as in the case of a medical emergency. An order in these terms will provide the father with what his counsel described as “a seat at the table” when major long-term decisions are made in respect of X’s education and health but will enable the mother to make those decisions in a timely manner in the event the father is unable to make a meaningful contribution to decision-making for X about those matters or their views are not aligned.
I otherwise find it is in X’s best interests for the parties to have joint responsibility for making decisions about all other major long-term issues for X. They are issues that are likely to arise less frequently and in respect of which urgent decisions are unlikely to be required. I find X would benefit by having both of his parents consult with one another and make a genuine effort to come to a joint decision in respect of those matters.
Schooling
If X lives in Country B, the father seeks an order X attend an international school and primarily receive his education in English. However, he did not give evidence about available schools, their location, entry requirements, curriculum, suitability for X, fees and the like.
I have already referenced the mother’s evidence in relation to the schools she has considered for X in Country B and her expressed willingness to consult with the father before making a final decision.
I will not make an order in relation to X’s schooling, leaving it as a matter to be determined by the mother in exercise of her decision-making responsibility following consultation with the father.
Sharing of information
The parties agree to orders for the provision of and access to information about medical matters and X’s schooling, enabling the father to obtain that information directly from X’s health practitioners and the school he attends. I will also make a specific order to ensure the father is authorised to receive information directly from X’s school via any parent communication portal or app. In light of those orders, some of the orders sought by the father for the provision of information by the mother are unnecessary.
The father seeks orders requiring the mother to keep him updated in relation to X’s development, milestones, awards and interests, including fortnightly updates. Notwithstanding I find it likely the mother will continue to keep the father and the paternal grandfather informed in relation to X as she has done previously from Country B, I will make an order for the mother to provide the father with monthly updates, in months X does not spend time with the father, for the purpose of facilitating their relationship, communication and time spent together. I note however, there may be occasions those updates are very brief, if there are no significant changes or matters to report. I consider mandatory fortnightly updates to be too onerous.
Discharge of previous orders
Rule 5.01 of the Rules provides that upon the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect. I will nevertheless make an order confirming this is the case, so it is clear for the parties and to any third party (such as X’s school) who may have been provided with copies of interim orders made in these proceedings.
Removal of X’s name from the Watchlist
Orders have not been made restraining the parties from travelling overseas with X. A notation to orders made on 12 February 2024 records that X’s name was placed on the Watchlist upon service of a copy of the father’s initiating application upon the Australian Federal Police (“AFP”), pending determination of his application.
With the resolution of the proceedings, in the absence of an injunction restraining the mother from removing X from the Commonwealth of Australia, X’s name should be removed from the Watchlist. To ensure X can leave Australia with the mother without any difficulty, I will incorporate a request in the final parenting orders for the AFP to remove X’s name from the Watchlist and authorise the mother to provide a copy of the final orders to the AFP.
Registration of orders in Country B
Relying on the evidence of the Country B legal expert that it is not possible, I will not make the order sought by the father requiring the mother to register a copy of the orders I make with the W Authority in Country B.
The father did not seek an order requiring the parties to enter into a mediated agreement in Country B reflecting the terms of any Australian orders and gave evidence his desire to engage in that process is dependent on the cost. In those circumstances, and not being persuaded it is necessary given my assessment of the risk of the mother not facilitating X travelling to Australia from Country B, I will not require that or any other legal process in Country B as a condition to X living in Country B with her.
Other orders
I am satisfied the orders agreed by the parties are in X’s best interests.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in the best interests of X and I make orders in those terms.

I certify that the preceding two hundred and seventy-five (275) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys.
Associate:
Dated: 8 August 2024

File number(s):	MLC 14748 of 2023
Judgment of:	JUDGE A. HUMPHREYS
Date of judgment:	8 August 2024
Catchwords:	FAMILY LAW – PARENTING – international “relocation” – mother seeks to return to live in Country B with parties’ child (aged 5) – child lived predominantly in Country B until September 2023 – father seeks child remain living in Australia and continue spending time with him on alternate weekends (Friday to Monday) and on one afternoon in intervening weeks – evaluation of competing proposals – order made for child to live with the mother in Country B and to spend time with the father as proposed by the mother, in Australia twice each year and in Country B twice each year – child’s return to Country B not to be deferred as sought by the father in the alternative – mother to have sole decision-making responsibility for education and health issues – parties to have joint decision-making responsibility for all other major long-term issues – other orders agreed by parties found to be in child’s best interests.
Legislation:	A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751 Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Asher & Wilkinson (2020) FLC 93–945; [2020] FamCAFC 44 KB & TC (2005) FLC 93–224; [2005] FamCA 458 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102 Kuebler v Kuebler (1978) FLC ¶90-434; [1978] FamCA 26 Line & Line (1997) FLC ¶92-729; [1996] FamCA 145 Malcolm & Monroe (2011) FLC 93-460; [2011] FamCAFC 16 McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92 Paskandy v Paskandy (1999) FLC 92-878; [1999] FamCA 1889 Rochford & Fitzhugh [2019] FamCAFC 218 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Taylor & Barker (2007) FLC 93–345; [2007] FamCA 1246 U v U (2002) 211 CLR 238; [2002] HCA 36 Wagstaff & Wagstaff (2022) FLC 94-098; [2022] FedCFamC1A 199 Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Cases cited:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61C, 61B, 61CA, 61D, 61DAA, 61DAB, 65D
Division:	Division 2 Family Law
Number of paragraphs:	275
Date of hearing:	27 – 29 May 2024
Place:	Melbourne
Counsel for the applicant:	Ms Bastick
Solicitor for the applicant:	Kenna Teasdale Lawyers
Counsel for the respondent:	Mr Dickson KC
Solicitor for the respondent:	Sage Family Lawyers

MLC 14748 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WERNER Applicant
AND:	MS MANZ Respondent

ORDER MADE BY:	JUDGE A. HUMPHREYS
DATE OF ORDER:	8 AUGUST 2024