Anderson & Salinos - [2022] FedCFamC1F 976

Federal Circuit and Family Court of Australia
(DIVISION 1)
Anderson & Salinos [2022] FedCFamC1F 976

File number(s): MLC 1292 of 2020

Judgment of: WILLIAMS J

Date of judgment: 13 December 2022

Catchwords:
FAMILY LAW – PARENTING – RELOCATION – Where the mother seeks to relocate the child’s residence to New Zealand, or City B in the alternative – Where the child is seven years of age and has resided in country Victoria with the parents and paternal family since birth – Where the mother has lived in country Victoria for 13 years – Where the maternal family live in New Zealand –
Where relocation would deprive the child of regular and consistent time with the father – Where the father is unable to meet the costs of regular overseas travel – Where the mother’s proposal prioritises her needs over the child’s – Where the considerations for relocation are finely balanced – Where relocation of the child is not permitted – Child to live with mother and spend five nights a fortnight and half holidays with the father from 2023 –

Medical procedures – Covid-19 vaccinations – Whether the child should be vaccinated – Where there was a lack of evidence presented by the parties at trial – Order made for the parties to have liberty to file a further application and supporting affidavit limited to whether the child should be vaccinated against Covid-19.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 60I, 61DA, 65DAA, 67ZC

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

AMS v AIF (1999) 199 CLR 160

Banks & Banks [2015] FamCAFC 36

Cranston & Persson (No 2) [2022] FedCFamC1F 187

Mazorski v Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405

Morgan & Miles [2007] FamCA 1230

Sigley & Evor [2011] FamCAFC 22

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 188

Date of hearing: 24–25 October 2022

Place: Melbourne

Counsel for the Applicant: Mr Allen

Solicitor for the Applicant: Van Beveren & Associates

Counsel for the Respondent: Mr Hall

Solicitor for the Respondent: Heinz & Partners
ORDERS

MLC 1292 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ANDERSON

Applicant

AND:
MR SALINOS

Respondent

order made by:

WILLIAMS J

DATE OF ORDER:

13 DECEMBER 2022

THE COURT ORDERS THAT:
1.All previous parenting orders regarding the child X born 2015 (“the child”) be discharged AND FURTHER the child’s name be removed from the Airport Watch List maintained by the Australian Federal Police.
2.The parties sign all documentation and do all things necessary to alter the registration of the name of the child to X SALINOS-ANDERSON with the Victorian Registry of Births’ Deaths and Marriages AND FURTHER any costs incurred be shared equally between the parties.
3.The parents have equal shared parental responsibility for the child X born 2015.
4.The child live with the mother.
5.The child spend time and communicate with the father as follows:
(a)During school terms:
(i)For the remainder of 2022:
A.In week one, from the conclusion of school Thursday until the commencement of school Friday; and
B.In week two, from the conclusion of school Friday until the commencement of school Monday, with such time to extend to the commencement of school Tuesday in the event that the Monday is a non-school day;

(b)From the commencement of Term 1 2023:
(i)On a two week cycle as follows:
A.In week one, from the conclusion of school Thursday until the commencement of school Friday; and
B.In week two, from the conclusion of school Thursday until the commencement of school Monday, with such time to extend to the commencement of school Tuesday in the event that Monday is a non-school day;

(c)During the short term holidays at the conclusion of terms 1, 2 and 3 each year for a period of seven nights at times agreed between the parties and failing agreement to commence in line with the child’s ordinary alternate weekend time with the father provided for in sub-paragraph (a) above and to conclude at 5:00pm seven nights’ thereafter;
(d)During the long summer holidays on a week-about basis at times agreed between the parties and failing agreement to commence in line with the child’s ordinary alternate weekend time with the father provided for in sub-paragraph (a) above and for changeovers to take place at 5:00pm each week thereafter;
(e)Any such further and other times as agreed between the parties in writing (including text message).

6.The child spend time with the parties on the following special occasions and, where necessary, ordinary care arrangements be suspended for the purpose of same:
(a)For Christmas:
(i)With the father in even numbered years, from 3:00pm Christmas Eve until 3:00pm Christmas Day (with the mother to be afforded the same time in odd-numbered years); and
(ii)With the father in odd numbered years, from 3:00pm Christmas Day to 3:00pm Boxing Day (with the mother to be afforded the same time in even-numbered years);

(b)With the father for Father’s Day each year, should the child not usually be in the father’s care, from 10:00am on Father’s Day until the commencement of school on Monday, with the mother to be afforded the same time for Mother’s Day each year;
(c)On the child’s birthday, with the child to spend time with the parent whose care they are not already in, as follows:
(i)if the birthday is on a school day, from the conclusion of school until 8:00pm;
(ii)if on a non-school day, for four hours at times to be agreed and failing agreement, from 10:00am until 2:00pm;

(d)Over the Easter period with the child to spend time with each parent as follows:
(i)in odd numbered years, the child spend time with the father from 5:00pm Easter Saturday until 11:00am Easter Sunday and with the mother from 11:00am Easter Sunday until 11:00am Easter Monday;
(ii)in even numbered years, the child spend time with the mother from 5:00pm Easter Saturday until 11:00am Easter Sunday and with the father from 11:00am Easter Sunday until 11:00am Easter Monday;

(e)On each of the parents’ birthdays, with the child to spend time with the parent whose birthday it is, if not already in their care as follows:
(i)if the birthday is on a school day, from the conclusion of school until 6:30pm;
(ii)if the birthday is on a weekend, from 10:00am until 2:00pm.

(f)Any such further and other times as agreed between the parties in writing (including text message).

7.Changeovers not taking place at the child’s day care/kindergarten/school take place at City C McDonalds unless otherwise agreed between the parties.
8.Each party be at liberty to communicate with the child by video or telephone call each second evening that the child is not in their care, with such calls to take place between 6:00pm and 6:30pm and such calls to be made by the non-resident parent to the resident parent’s mobile phone, unless otherwise agreed.
9.The parties each keep the other informed of their contact details including residential address, email address and telephone number.
10.The mother be restrained by injunction from relocating with the child from the City C region without the written consent of the father or without further Court order.
11.The child shall continue her primary school education at D School, unless otherwise agreed between the parties.
12.The parties, their servants and agents be and are hereby restrained from:
(a)abusing, insulting belittling, rebuking or otherwise denigrating the other, in the presence or hearing of the child, and from permitting any other person to do so; and
(b)involving the child in any form of conflict, between the parents or otherwise.

13.The parties each keep each other informed of any significant injury or illness suffered by the child 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;
(c)the treatment given to date and any information in his or her possession about the diagnosis; and
(d)either parent be at liberty to contact treating medical and like practitioners to seek further information and advice.

and that this agreement/order be taken as authority of same.
14.The parties:
(a)be authorised to communicate with any school or educational provider that the child may from time to time attend for the purposes of obtaining information and providing input into the child’s learning and development; and
(b)be at liberty to request any school or other reports and records, photos and other notices be sent to them at their own expense; and
(c)be named as the primary emergency contacts for the child,

and that this order/agreement be taken as authority of same.
15.
(a)The parties be at liberty to attend all school events ordinarily attended by parents, including but not limited to parent teacher interviews, meetings, sport events and concerts and to otherwise attend the school for the purpose of paying school fees or volunteering;
(b)The parties be permitted to attend the child’s extra-curricular activities, upon providing 24 hours advance notice to the other AND FURTHER each party keep the other advised of any extra-curricular activities that the child is engaged in.

16.The parties continue to use the Weparent app for all communication in relation to the child save in the case of emergencies involving the child where the parties will be at liberty to communicate with each other via telephone.
17.The parties be at liberty to travel to interstate and/or internationally with the child during periods in which the child is ordinarily in their care, unless otherwise agreed in writing, subject to the following conditions:
(a)Unless otherwise agreed, such travel not interfere with the special occasions set out in Order 6 above;
(b)In the case of international travel, the travelling party provide the non-travelling party with 45 days’ notice of the intention to travel;
(c)In the case of interstate travel, the travelling party provide the non-travelling party with 14 days’ notice of the intention to travel;
(d)The travelling parent provide to the other parent the following documents at least 14 days in advance of the child’s intended travel:
(i)Copies of any return air or other transportation tickets;
(ii)A copy of a general itinerary including an outline of the nature and location of the accommodation of the child during the period of travel;
(iii)Contact details which will enable and facilitate the non-travelling party communicating with the child during the period of travel on one occasion each 72-hour prior of travel with the travelling party to actively facilitate such contact during any period of travel;

(e)For the purpose of international travel, the child may only travel to countries which are signatories to the 1980 Hague Convention on Civil Aspects of International Child Abduction unless otherwise agreed between the parties in writing.

18.In addition to travel pursuant to Order 17 above, the mother be at liberty to travel to New Zealand with the child for an additional period not exceeding 14 days per calendar year, unless otherwise agreed in writing, subject to the following conditions:
(a)Unless otherwise agreed, such travel not interfere with the special occasions set out in Order 6 above;
(b)The mother provide to the father 45 days’ notice of the intention to travel to New Zealand;
(c)The mother provide to the father the following documents at least 14 days in advance of the child’s intended travel:
(i)Copies of any return air or other transportation tickets;
(ii)A copy of a general itinerary including an outline of the nature and location of the accommodation of the child during the period of travel;
(iii)Contact details which will enable and facilitate the father communicating with the child during the period of travel on one occasion each 72-hour prior of travel with the mother to actively facilitate such contact during any period of travel;

(d)Arrangements be made for the father to have make-up time with the child for any time missed due to the travel plans at such time as requested by the father.

19.In addition to travel to New Zealand pursuant to Order 18 hereof, the mother may travel to New Zealand with the child for an additional 14 day period in the event of a family emergency, such as a death in the family or significant illness. In such circumstances the mother will be exempt from compliance with the notice provision set out in Order 18(b) above but will be required to provide the father with the information contained in Order 18(c) above and to comply with Orders 18(d) above.
20.The mother retain the child’s passport and in the event the father wishes to travel with the child internationally, she shall release the passport to the father no later than seven days prior to the scheduled departure of the child from the Commonwealth of Australia (subject to compliance with Order 17 hereof), and the child’s passport be returned by the father to the mother within seven days of the child’s return to the Commonwealth of Australia.
21.The parties have liberty to apply to file an application to determine whether the child should be vaccinated against Covid-19, and if they do so, provide via email a copy of any such application and supporting affidavit to the chambers of Justice Williams.
22.Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

The applicant is the mother and the respondent is the father of the child, X born 2015 (“the child”).
The mother was the respondent and the father the applicant in the initial proceeding. However, as the mother’s Amended Response filed 20 October 2022 sought orders permitting her to relocate the child from City C, both counsel agreed for the purposes of the trial the mother would be referred to as the applicant and the father would be referred to as the respondent.
The mother initially sought the court’s permission to relocate the child to New Zealand, where some of her family members live. On 20 October 2022, four days prior to the commencement of the trial, the mother filed an Amended Response and further affidavit, seeking to relocate the child’s residence to City B, in the event she was not permitted to relocate to New Zealand.
On 21 October 2022, the father filed an Outline of Case document which confirmed her secondary position to relocate to City B.
The parties agreed they should have equal shared parental responsibility and the child should primarily live with her mother. They were in dispute about time the child should spend with her father and whether she should be vaccinated against Covid-19. Initially, they were also unable to agree about a change to the child’s surname to incorporate both parent’s surnames. That dispute was resolved during the trial and the parents agreed the child would be known as X Salinos-Anderson.
Issues in Dispute
The following issues were the subject of dispute between the parents:
(a)whether the mother be permitted to relocate the child to New Zealand, or in the alternative, be permitted to relocate the child to the City B area;
(b)the spend time arrangements of the child with the father in the event the mother relocated with the child;
(c)the spend time arrangements of the child with the father in the event the mother was not permitted to relocate with the child;
(d)which parent should have parental responsibility for the child’s Covid-19 vaccination.
Synopsis
I have determined:
(a)the mother is not permitted to relocate the child’s residence to either New Zealand or City B;
(b)the child live with the mother;
(c)the child spend term time with the father on a fortnightly basis, as follows:
(i)in week one, from conclusion of school Thursday until commencement of school Friday;
(ii)in week two, from conclusion of school Friday until commencement of school Monday;
(iii)As from the commencement of term 1 2023, the child’s time with the father in week two commence at the conclusion of school Thursday;
(d)the child spend half of all school holidays with each parent;
(e)the parties are at liberty to file a further application and affidavits including relevant evidence, about the child’s Covid-19 vaccination.
Background
There was limited background information in the parties’ trial affidavits and Case Outlines.
The mother is 41 years of age and is a health professional. She was born in New Zealand but has lived in Australia since mid-2009. Her family of origin, including the maternal grandmother, and two sisters live in New Zealand. The mother worked in a Melbourne hospital for two years prior to moving to City C in 2011, where she has continued to live. She was previously employed as a health professional at the City C Medical Centre, however her employment was terminated because of her refusal to be vaccinated against Covid-19.
The father is aged 40 and has lived in Australia his whole life. He is currently employed in agriculture. The father currently lives some distance from the child’s home. His sister, brother-in-law and their four young children live in the same town as the father and spend frequent time with each other.
The parents commenced a relationship in late 2011 and lived together in City C shortly thereafter. In late 2015, they purchased a property in City C, where the mother and child continue to live.
During the relationship the mother was the child’s primary caregiver whilst the father continued in his employment. The father contended he was an active and involved parent prior to separation, which the mother denies.
In late 2019, there was a physical altercation between the parents, which the father accepts the child heard and which the mother contends she witnessed. The father left the family home a few days later and was charged by the police. He pleaded guilty to assaulting the mother.

Following the altercation the mother was referred to a family violence service and obtained an intervention order against the father, which has now expired. The mother travelled to New Zealand with the child in late 2019 and returned to Australia in early 2020. The father was initially unaware the child had travelled to New Zealand.
The father issued an application in the City E Magistrate’s Court seeking time with the child, and on 15 January 2020 orders were made for the child to spend time with the father supervised by the paternal aunt. Thereafter, time progressed to the existing arrangements, whereby the child lives with her mother and continues to spend significant time with her father.
On 3 October 2020, the mother filed an Amended Response seeking to relocate the child to New Zealand. The proceeding was transferred from the Federal Circuit Court (as the court was then named) to this Court. On 20 October 2022, the mother filed an Amended Response and further affidavit, seeking to relocate the child to City B, if she were not permitted to relocate the child to New Zealand.
The trial commenced on 24 October 2022 and concluded the following day.
The proposals of the parties
The applicant mother’s proposal
Prior to the commencement of the trial, the mother filed an Outline of Case which set out the final orders she sought. The orders sought are summarised as follows:
(a)all previous parenting orders be discharged;
(b)the parties have equal shared parental responsibility for the child;
(c)the child live with the mother;
(d)from the date of the making of these orders until a date not sooner than two months (‘the period’) the mother agrees that she will continue to live at F Street, City C, Victoria or at such other address in or around Victoria as shall be convenient for the mother, and in the period the child shall spend time and communicate with the father as follows:
(i)each alternate weekend from the conclusion of school on Thursday (or 3:30pm in the event that it is a non-school day) until the commencement of school on Monday (or 9:00am in the event that it is a non-school day);
(ii)half of school holidays;
(iii)special occasions;
(e)save when the changeover is to occur at school, changeover take place at City C McDonalds;
(f)during the period, each party be at liberty to communicate with the child by telephone or video call every second night the child is not in their care, such calls to take place between 6:00pm and 6.30pm unless otherwise agreed and such calls to be initiated by the parent not with the child;
(g)at the expiration of ‘the period’ or at such other times as the parties may mutually agree before the period expires the mother and the child may permanently relocate and change residence from City C to the geographical area of the North Island of New Zealand;
(h)that as of and from the date being 14 days after the mother and the child have relocated and while the father remains a resident in an area which is located more than 3 hours driving from the mother the child shall spend time with the father as follows:
(i)in the 2022/2023 summer holidays for a period of up to 7 consecutive nights in New Zealand. That this time not include Christmas Eve, Christmas Day or Boxing Day;
(ii)in the 2023/2024 and 2024/2025 summer holidays for a period of up to 14 consecutive nights in Australia;
(iii)from the 2025/2026 summer holidays, each summer holiday period for a period of up to 21 consecutive nights;
(iv)that the Father’s time with the child will include Christmas in each alternate year, commencing with Christmas in 2023;
(v)from the 2023 school year, in the term holidays for up to 7 consecutive nights with the June/July holiday time to be spent in Australia and the other term holiday time to be spent in New Zealand unless otherwise agreed between the parties;
(vi)at any other time as agreed between the parties with the travelling party to provide to the other 14 days’ notice of their travel plans;
(i)For the purpose of facilitating order (h) herein that the parties comply with the following:
(i)the parties share equally the cost of the child’s travel;
(ii)the mother will make all the required travel arrangements and provide them to the father upon confirmation of such arrangements;
(iii)the child will not fly unaccompanied (including on an unaccompanied minor scheme) until the age of 15 years;
(iv)the father provides to the mother an itinerary of any travel with the child, including accommodation details and contact phone numbers;
(v)the parties will agree between themselves arrangements for the changeovers on each occasion;
(j)in the event the mother is not permitted to relocate to New Zealand, that at the expiration of ‘the period’ or at such other times as the parties may mutually agree before the period expires the mother and the child may permanently relocate and change residence from City C to the City B Region of Victoria;
(k)that as of and from the date being 14 days after the mother and the child have relocated and while the father remains a resident in an area which is located more than 3 hours driving from the mother the child shall spend alternate weekend time with the father, for half of school holidays and on a week-about basis during long school summer holidays;
(l)that each parent will take all reasonable steps to implement the recommended treatment plan/s for the child which have been recommended by the healthcare provider treating the child and each parent shall attend appointments with the child’s treating healthcare provider, either jointly or separately;
(m)the parties each pay half of all educational expenses for the child including school fees, books, school uniform and footwear required for school, half of school camps and excursions, and any costs for extracurricular activities of the child;
(n)that the child’s name be removed from the Airport Watch List maintained by the Australian Federal Police;
(o)that father’s solicitors release the child’s passport to the mother and the mother retain it in her possession unless agreed between the parties;
(p)the parties be at liberty to travel interstate and or internationally with the child during the periods in which the child is ordinarily in their care with 21 days’ notice given, unless otherwise agreed in writing, subject to conditions;
(q)the parties be restrained by injunction from taking the child to receive any vaccination without written consent of both parties;
(r)that each of the parties henceforth exclusively use the name “Salinos-Anderson” as the surname of the child of the relationship for X, formally known as X “Salinos”.
Documents relied upon by the applicant mother
The mother relied upon the following documents:
(a)Amended Response to Initiating Application filed 20 October 2022;
(b)Affidavits of the mother filed on 20 June 2022 and 20 October 2022;
(c)Affidavits of Mr G filed on 20 June 2022 and 20 October 2022;
(d)Outline of Case document filed on 21 October 2022;
(e)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The respondent father’s proposal
Prior to the commencement of the trial, the father provided a proposed minute of orders sought. The orders sought are summarised as follows:
(a)all previous parenting orders be discharged;
(a)the parties have equal shared parental responsibility for the child;
(b)the mother be restrained by injunction from relocating with the child from the City C region without the written consent of the father or without further Court order;
(c)the child shall continue her primary school education at D School, unless otherwise agreed between the parties;
(d)the child live with the mother;
(e)from 2023 onwards, on a fortnightly cycle, the child spend time with the father:
(i)in week one, from the conclusion of school on Wednesday until the commencement of school on Thursday;
(ii)in week two, from the conclusion of school on Thursday until the commencement of school on Monday with such time to extend to the commencement of school Tuesday in the event that Monday is a non-school day;
(f)during the short term holidays at the conclusion of terms 1, 2 and 3 each year for a period seven nights;
(g)during the long summer holidays on a week-about basis;
(h)spend time arrangements for special occasions;
(i)changeovers not taking place at the child’s day care/kindergarten/school take place at City C McDonalds unless otherwise agreed between the parties;
(j)each party be at liberty to communicate with the child by video or telephone call each second evening that the child is not in their care, with such calls to take place between 7:00pm and 7:30pm;
(k)the parties be at liberty to attend after school or school functions, extracurricular, social and sporting activities of the child to which parents are normally invited;
(l)the parties be at liberty to travel to interstate and/or internationally with the child during periods in which the child is ordinarily in their care, unless otherwise agreed in writing, subject to following conditions;
(m)in addition to travel pursuant to the above order, the mother be at liberty to travel to New Zealand with the child for an additional period not exceeding 14 days per calendar year, unless otherwise agreed in writing, subject to the following conditions;
(n)in addition to travel to New Zealand pursuant to the above order, the mother may travel to New Zealand with the child for an additional 14 day period in the event of a family emergency, such as a death in the family or significant illness;
(o)unless otherwise agreed in writing, the child’s passport shall remain lodged with the father’s lawyer for safekeeping;
(p)the parties do all acts and things necessary to ensure that the child is vaccinated against Covid-19;
(q)the parties sign all documentation and do all things necessary to alter the registration of the name of the child to X SALINOS-ANDERSON with the Victorian Registry of Births’ Deaths and Marriages AND FURTHER any costs incurred be shared equally between the parties.
Documents relied upon by the respondent father
The father relied upon the following documents:
(a)Amended Initiating Application filed 6 June 2022;
(b)Affidavits of the father filed 6 June 2022, 1 July 2022 and 14 October 2022;
(c)Affidavit of Ms H filed on 6 June 2022;
(d)Affidavit of Ms K filed on 6 June 2022;
(e)Outline of Case document filed on 19 October 2022;
(f)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The following documents were tendered during the course of the trial:

Exhibit Number Description

F-1 X’s School Reports (Pages 414–443 of the Court Book)

F-2 Financial Statement of the mother sworn 30 January 2020

F-3 Letter from City C Medical Centre to the mother dated 25 January 2022 in relation to her employment

J-1 Family Report dated 17 May 2022
The applicable law
Evidence

The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(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.
The mother and father relied upon their respective affidavits. The affidavits recounted the history of the parties’ relationship and their parenting dispute. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
62.…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Credibility of Witnesses
The mother’s witnesses
The mother gave evidence and was cross-examined by counsel for the father. The mother was frequently non-responsive to questions asked and often stated she did not know how to or could not answer questions put to her. At times she was defensive and combative and I was left with the impression she attempted to craft her answers to present herself in a favourable manner and to provide answers she thought would promote her desired outcome. Some of her evidence was selective and did not paint a complete picture of events. An example was her lack of candour about the job opportunity in City B, when she had only had one preliminary phone call. Subject to the foregoing limitations, she was generally truthful.
Mr G (maternal uncle) was not required for cross-examination and I accept his evidence as unchallenged.
The father’s witnesses
The father gave evidence and was cross-examined by counsel for the mother. He gave evidence in a straightforward and direct manner. He answered questions directly and did not attempt to embellish his answers to assist his case. He was candid about his convictions arising from his assault of the mother in late 2019, although he was confused about the exact charge. I accept his evidence as truthful.
Neither Ms H (paternal grandmother) nor Ms K (paternal aunt) were required for cross-examination and I accept their evidence as unchallenged.
The Court Child Expert, Ms J, who prepared a family report dated 17 May 2022 was cross-examined by both counsel for the mother and counsel for the father. She impressed as a professional, informed and considered witness. I refer to her report and evidence during cross-examination later in these reasons.
The legal principles applicable to parenting disputes
Relocation cases are determined in the same manner as all parenting cases, namely by following the statutory framework set out in the Family Law Act 1975 (Cth) (“the Act”) to determine what orders are in the children's best interests.
The following principles may be discerned from the authorities including: AMS v AIF (1999) 199 CLR 160, A v A: Relocation Approach (2000) FLC 93-035, U v U [2002] HCA 36, Taylor & Barker [2007] FamCA 1246, Morgan & Miles [2007] FamCA 1230:
(a)there is no discrete category of relocation cases;
(b)the child’s best interests are the paramount, but not the only consideration in relocation cases;
(c)a parent who seeks to relocate need not show compelling reasons, but must adduce evidence which enables a court, on balance, to find a parenting order permitting location is in the best interests of the child;
(d)the court must evaluate the competing proposals, considering the advantages and disadvantages for the child’s best interests for each proposal;
(e)neither party bears an onus to establish that a relocation or a continuation of an existing regime is in the child’s best interests;
(f)the child’s best interests must be weighed and balanced with the “right” of freedom of movement of the parent who proposes to relocate, but that right must defer to the child’s best interests.
Part VII of the Act sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
Abuse in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
Additionally, section 67ZC(1) of the Act provides in addition to the jurisdiction a Court has under Part VII of the Act in relation to children, the Court also has jurisdiction to make orders relating to the welfare of children. Section 67ZC(2) provides that in deciding what order to make, the Court must regard the best interests of the child as the paramount consideration and notes that sections 60CB–60CG deal with how a court determines a child’s best interests.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I may not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
As far as parental responsibility is concerned, Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the Court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.

An order for shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person. In this case, both parents seek orders for equal shared parental responsibility.
I will now address the primary considerations.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
There was no dispute the child would benefit from a meaningful relationship with both parents. The primary issue for determination was whether the mother should be permitted to relocate to New Zealand, or alternatively City B and whether relocation would permit the child to maintain a prospective meaningful relationship with her father.
In Sigley & Evor [2011] FamCAFC 22, the (then) Full Court of the Family Court referred to the following propositions concerning s 60CC(2)(a):
(a)a meaningful relationship is one “which is important, significant and valuable to the child” (Mazorski v Albright [2007] FamCA 520, Brown J at [26]);
(b)the enquiry is “prospective” which requires a court to consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (McCall & Clark (2009) FLC 93-405 at [118]).
During the trial, counsel for the mother sought to cast the nature of the child’s relationship with her father as developed and counsel for the father sought to cast the relationship as still developing and evolving. Neither categorisation was particularly pertinent as both parties agreed the child enjoys a close and positive relationship with her father. There was no question that the child also had an excellent relationship with her mother.
The father’s case was the child’s relationship with him would inevitably face substantial challenges, decline and become more distant if his future time with the child were to be in accordance with the mother’s proposal for relocation.
The mother, on the other hand, submitted the child’s relationship was sufficiently established to endure a change in the configuration and frequency of her time with the father.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
Neither party contended the child was at risk of harm in the other parent’s care on a day-to-day basis.
The mother had no welfare concerns for the child in her father’s care other than the effect on the child of witnessing the father’s assault on the mother in late 2019. The mother’s proposals for extended time between the father and the child during holidays, if she were permitted to relocate, and her proposals in the event of no relocation, demonstrate her confidence in the father’s care of the child.
The father’s proposal for the child remain living with her mother is similarly demonstrative of his confidence in the mother’s capacity to care for their daughter on a day-to-day basis.
The assault on the mother occurred in late 2019 following a deterioration in the parental relationship. Each parent had different views about whether the child had witnessed the assault or was in an adjoining room and heard as opposed to saw the assault.
According to the documents produced by the police pursuant to subpoena, the father pleaded guilty and was fined.
The issue of the assault and the conflictual parental dynamic was referred to in some detail in the family report. At paragraph 96, the family consultant refers to the mother’s claim of a pattern of verbal and psychological abuse throughout the relationship, which caused her to feel fearful and escalating violence perpetrated by the father. At paragraph 97, the father’s account refers to controlling tendencies by the mother and verbal conflict which escalated to pushing. The family consultant refers to the parental dynamic as aligned with conflict-instigated violence, typically characterised by angry outbursts, arguments and demands which may be reflective of poor conflict resolution skills and limited problem-solving capacity on behalf of both parents.
Both parents acknowledge the child has been exposed to parental conflict and elements of behaviour which may constitute family violence. The child articulated her recollection of witnessing her father assaulting her mother and feeling scared.
The family consultant concluded the parties account of events subsequent to separation, the litigation history and the child’s discussion of her current care experiences, suggests the immediacy of a family violence risk has ameliorated. I accept her evidence.
Additional Considerations
The additional considerations are set out in s 60CC(3) of the Act. I will now consider the additional considerations.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is currently 7 years old. At the time of the family report interviews she was 6 years old. The family consultant (at [72]) described the child as a bright and friendly little girl who was observed to remain shy and quiet and respond, “I don’t know” at times, and warm and giggle at other times. She appeared to speak most comfortably when relating tales about her pets, a visit to the aquarium and when talking about her friends at school.
The family consultant concluded that due to her age and stage of development, the child did not appear able, or willing, to express views regarding her care arrangements and indicated her contentment with both parental relationships. The child’s responses indicated she considers both of her parent’s residences as her “home” (at [73]).
At paragraph 94 of the family report, it is noted both parents “expressed a speculative understanding … [X] wishes that her parents would be together”, and according to the family consultant that acknowledgment suggests there is a “shared understanding that [X] loves and wishes to spend time with both of her parents”.
Because of her young age and stage of development, the child is not capable of forming or articulating a rational or mature view as to her future living arrangements. I do not intend to place significant weight on her views although, I take into account the observations of the family consultant pertaining to the child’s love for and wish to spend time with both her parents.
The nature of the relationship of the child with:
(i) each of the child's parents;
(ii) other persons (including any grandparent or other relative of the child)
It is uncontroversial the child enjoys a close and loving relationship with each of her parents, which was identified in the assessment conducted by the family consultant.
The family consultant identified the child receives different benefits from each of her parents. The time with her father is characterised by an emphasis on outdoor activities, nature and growing independence. The child’s time with her mother appears centred on sharing experiences, learning and emotional growth (at [95]).
Despite the child’s awareness of her parent’s conflict, to the credit of both parents, she was readily able to share her experiences with each parent during observations sessions. Her ability to do so, according to the family consultant, suggests, implicitly or explicitly, both parents have conveyed an acknowledgement the child’s relationship with the other parent and have granted the child emotional permission to freely embrace a relationship with each parent.
The family consultant observed the interaction between the child and each of her parents during the assessment process. The child engaged comfortably with both of the parents and the family consultant did not note any concerns about the interactions with either parent. Both parents demonstrated affection, were warmly greeted by the child at the commencement of the observation session and participated in child focused activities during the session.
The father engaged in discussions relating to the child’s experiences at school demonstrating a knowledge of her friendship circle, discussed a recent birthday party, plans for upcoming time together and updates of pets and animals. Conversation about the child’s recent time in Melbourne, including visiting the aquarium and a tram ride, focused on the child’s experiences and she was comfortable sharing her experiences with her father.
At the child’s suggestion, she and her father made cards for one another with the child writing in her card “I love you daddy” (at [84]).
The mother followed the child’s lead by playing together with a wooden puzzle. The child engaged conversationally with her mother often laughing together and was observed to be at ease with her. The child shared her experiences of having engaged in colouring in with her father. The mother’s approach and engagement with her daughter demonstrated a playful and imaginative style of interaction.
These observations of the family consultant were not challenged during cross-examination by either counsel and I accept her evidence in this regard.
As to the child’s relationship with other persons, the mother sought to emphasise the child’s relationship with the maternal family in New Zealand and the benefit to the child of fostering and strengthening those relationships in the future. According to the mother, she and the child have regular calls and FaceTime with her family in New Zealand, including with her aunts Ms L and Ms M, the grandmother and maternal cousins.
During cross-examination, the mother conceded she had a falling out with her sister Ms L at Ms M’s wedding in 2001 and that Ms L had a problem with alcohol, although she denied she was an alcoholic. Ms L was not on affidavit and the mother’s answers about why not were entirely unconvincing.
The mother conceded the maternal grandmother was previously an alcoholic and that she had told the father during the relationship that her relationship with her mother was not good. The maternal grandmother stayed with the mother in Australia in 2014 and 2015. She was currently unable to fly because medical conditions.
The mother agreed her sister Ms M also has a history of addiction. There were issues when Ms M visited in 2019 primarily arising from Ms M’s inability to deal with her children’s conflict.
The mother agreed with counsel for the father, during the relationship she had told the father she would never return to New Zealand because she couldn’t handle “stuff” with her family and Ms M, her sister, had not sworn an affidavit in the proceeding because she had spent very little time observing the family and little contact with the mother. Ms N has lived in the Country O since 1992, when she was aged 22 and has remained there ever since.
As to the relationship between the child and the external paternal family, the father relied on the affidavits of his sister, Ms K and his mother. Neither Ms K nor the paternal grandmother were required for cross-examination. I accept the child has a warm and loving relationship with her four paternal cousins and they regularly spend time together, including attending swimming lessons and a netball program together. I also accept the child has a close relationship with her paternal grandparents and they have regular involvement in her life.
The mother contended the relationship between the father and his sister was limited during their relationship, but evidently accepted the post-separation progression of the relationship between the child and the paternal extended family.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child;
to spend time with the child; and
to communicate with the child
The mother contended the father had on multiple occasions failed to participate with her in reaching agreements about long-term decisions for the child. She asserted she had sought the father’s opinion on a number of occasions, however the father had failed to engage with her.
The father contended the parents had previously made long-term decisions for the child, however post-separation he had not been afforded the opportunity to participate in relevant decision-making.
The parties are unable to agree whether the child should receive Covid-19 vaccinations, which is addressed later in these reasons.
Both parents agree the father has consistently sought to spend time with the child as much as possible.
As to electronic communication with the father, it was accepted the child does not particularly like electronic communication and made her views known to the family consultant. The mother’s relocation proposals include substantial electronic communication between the child and her father.
Parental obligation to maintain the child
This consideration was not particularly contentious. The mother meets the financial cost of the child when she is in her care and the father does likewise. Additionally, the father pays child support as assessed by the Child Support Agency, although the mother did not seek to have the father assessed for some period of time and sought an exemption from the Agency on the basis of the father’s family violence.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents
The child currently lives with her mother and spends time with her father during school term on three occasions overnight in a two week cycle together with time after school each Tuesday. She also communicates by phone with each parent every second day she is away from them and spends holiday time with her father.
In the event she is permitted to relocate to New Zealand, the mother proposes the child spend time with the father for seven consecutive nights in New Zealand during the 2022/2023 summer holidays, for up to 14 consecutive nights in Australia in the 2023/2024 and 2024/2025 summer holidays and for up to 21 consecutive nights from 2025/2026 and subsequent summer holidays. Her proposal does not specify whether that time is to take place in New Zealand or Australia.
The mother’s proposals for school term holidays commencing 2023 is for seven consecutive nights with the June/July holidays to be spent in Australia and the other term holidays to be spent in New Zealand.
If the mother is permitted to relocate to City B, her original proposals for the child to spend time with her father were the same as her proposals for a relocation to New Zealand. After enquiries from the Court about the City B proposals, the mother’s counsel sought to time to obtain instructions from his client and the mother thereafter additionally proposed the child should spend alternate weekend time with her father from Friday after school until Sunday afternoon.
In the event relocation to either New Zealand or City B is not permitted, the mother proposes the child spend time with her father each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday, half of school term holidays, week about during the long summer school holidays together with special occasion time. A four night block would have the benefit of reduced transitions between the parents.
The mother also proposes the child communicate electronically with her other parent every second day, which is agreed by the father.
It is trite to observe the mother’s proposals for relocation to New Zealand would reduce the child’s time spent with her father from a weekly basis to several times a year. According to the family consultant, the content and dynamic of the relationship would be altered and the greatest challenge to the child is likely to be the separation from her father. Both relocation proposals would remove the child from her school, friends and community. These are significant changes which would likely be disruptive and distressing for the child.
A move to New Zealand would deprive the child regular and consistent time with her father during school terms and limit participation with her father in school and extracurricular activities as well as regular outdoor activities, which they currently enjoy. The family consultant opined the quality of the relationship may deteriorate in the absence of mutual engagement in activities, as has been their custom and irrespective of the mother’s intentions, the ability of the father and daughter to relate meaningfully is likely to be reduced.
A move to City B would reduce the father’s term time with the child to two nights a fortnight, which is half of the time the mother proposes the child should spend with her father if she remained in City C and significant reduction in time proposed by the father. The family consultant did not recommend reduction of the child’s time with her father. It would also preclude the father’s involvement with the child’s school life, other than him possibly collecting the child from school on a Friday afternoon, once a fortnight.
Both destinations present potential problems for future compliance with orders, which may adversely affect the paternal relationship. As the child grows older, and establishes social networks, activities and commitments, and in particular enters her teens, it is probable she may not want to leave her home and social network each school holidays or, if living in City B, each alternate weekend.
The father proposes the child should remain living in City C and spend time with him during term for five nights a fortnight, special occasions and for one half of all school holidays. The father agrees with the mother’s proposal for electronic communication.
I will consider the appropriate arrangements for the child later in these reasons.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that the difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is an important consideration. The mother’s proposed relocation to New Zealand requires regular and ongoing travel for the child and parents, particularly the father. The father contends he is unable to meet the costs of regular overseas travel for the child and himself. The mother’s proposal for the father to travel to New Zealand at least twice per year would require the father to meet additional costs of accommodation and transport whilst he was in New Zealand. She did not adduce evidence about the likely cost of accommodation or transport. She also proposes the cost of the child’s travel to Australia twice per year would be shared equally between the parents.
During cross-examination, the mother agreed the father’s time with the child in New Zealand would occur in a hotel or serviced apartment, he would be relegated to visitor status and would sit outside the window of the child’s life. She also agreed with the father’s counsel, the relegation of the father’s role would demote the father’s role in the child’s life, there would be a qualitative reduction in his role, it would be a drastic change in the nature of the child and parental relationship, the relationship would fail to develop in the same way it otherwise would and the child would experience a major loss. I accept the foregoing as adversely affecting the child’s right to maintain a relationship with her father.
If the child relocates to City B, she will be required to travel by car for a matter of hours after school Friday and Sunday afternoon, each alternate weekend. In my view traveling the distance between City C and City B after a full school week and again on a Sunday afternoon is onerous for any child, let alone one in early primary school. It will also be an additional financial cost for both parents.
The father is currently employed in agriculture earning $40 per hour and has been with his current employer for many years. His income is dependent on actual hours worked. His unchallenged evidence was he earned $828.59 per week after payment of tax. His weekly expenses are $200 for rent, $250 applied towards his personal loan, $150 for diesel and approximately $180 for general living expenses. During cross-examination, the mother acknowledged the father had an extremely limited capacity for payment of travel “at this stage”. As a result of the litigation, the father has incurred a substantial debt to his lawyers which, is referred to in his Costs Notice as around $60,000, which he will have to pay in the future. The mother conceded the costs of travel could have a prohibitive effect on the father and that she had superior qualifications to him.

As to the mother’s capacity to pay future travel costs, she thought the pay rate for a health professional in New Zealand was around NZD$40 per hour. Additionally, she would have the equity from the sale of her property in City C as a lump sum to fund future travel and the benefit of initial rent free accommodation with her family.
The mother’s evidence about cost of future travel was scant. She did not know the cost of travel subsequent to Covid-19, although she proposed both parents would have to meet the costs of travel for the next 12 or so years. She thought the cost of travel for some family members who visited her in July 2022 was around $800.
It is obvious both parents have modest financial capacity and meeting the long-term costs of international flights and in the father’s case, accommodation and transport in New Zealand would severely stretch their respective financial positions. That is particularly so for the father, who faces repayment of significant legal fees, whereas the mother’s costs were funded by Legal Aid, with a modest contribution from her. The mother did not propose any subsidy of the additional costs of the father, if he travelled to New Zealand.
I find it is likely the father will be unable to afford the future costs of travel to New Zealand for himself and the costs of the child’s travel to Australia, including accommodation, if he remains employed in a similar capacity in the future. That will also adversely affect the child’s right to maintain a relationship with her father.
The capacity of each of the child’s parents to provide for the child’s needs, including his emotional and intellectual needs
Both parents have the capacity to provide for the needs of the child. The father’s ultimate proposal was for the child to remain living in her mother’s primary care, although he previously proposed a week about arrangement. The proposal for the child to live with her mother demonstrates the father considers the mother to be an effective parent. During cross-examination any concerns he had about the mother were predominantly about the co-parenting relationship and the child continuing to co-sleep with her mother. He did, however, level criticism at the mother’s proprietary attitude towards their daughter, which was evident during the relationship, and her reluctance to progress the father’s relationship with the child subsequent to separation.
The father contended the mother’s conduct during the relationship sought to marginalise his role in the child’s life. The mother was cross-examined about her practice of excluding the father from inside the house, upon his arrival home from work and excluding or limiting his involvement in bath and bed time routine. The mother justified her actions on the basis that she needed a quiet time to get the child to bed.
The mother was cross examined about the progression of the father’s time with the child after separation. I accept the mother would have been upset and traumatised about the events of late 2019 and may have needed some space to consider her position, vis-à-vis the child’s future relationship with the father. However, the sequence of events put to her demonstrated increases in time between the child and her father were because of interim litigation, rather than negotiated increases.
The mother conceded her affidavits contained very little criticism of the father’s care of the child post separation and was unable to identify anything unsatisfactory in the child’s current care arrangements.
The family consultant was positive about the nature of the child’s relationship with each of her parents and the different benefits each parent was able to offer the child. She did not raise any concerns about the capacity for either parent to provide for the child’s needs and to the contrary, was highly complementary of each parent’s capacity to provide emotional permission for the child to pursue a relationship with the other parent. I accept her evidence and find both parents presently have the capacity to provide for the child’s needs.
The maturity, sex lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant
According to the family consultant, the child impressed as a bright and friendly little girl, who was observed to remain shy and quiet at times and at other times, to respond warmly and giggle. She was most comfortable when talking about her pets, a visit to the aquarium and talking about her school friends. All of the foregoing is appropriate for a seven year old child.
The child did not appear able, or willing to express her views regrading her care arrangements, which is consistent with her age and stage of development. Neither the parents, nor the family consultant identified any particular relevant characteristics.
If the child is an Aboriginal child or a Torres Strait Islander Child: the child’s right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This is not a contentious issue. Both parents have demonstrated an appropriate attitude to the child and the responsibilities of parenthood. The child is indeed fortunate to have two loving and devoted parents.
Any family violence involving the child or a member of the child’s family and relevant inferences that can be drawn
The historical family violence between the parents and the father’s assault on the mother in late 2019 is referred to in my consideration of the need to protect the child.
The father was cross-examined about the events of late 2019. He readily conceded he had pleaded guilty to one charge, although he was confused about which one of two initial offences he pleaded guilty to. He also acknowledged the effect on the child of his actions in late 2019 and that she would have been frightened. The mother contended the child had seen the assault, but the father contended she had only heard it.
The mother’s evidence was the child had initially regressed, but had subsequently improved and now enjoyed an excellent relationship with her father.
The father was suitably remorseful about his conduct and had subsequently attended men’s behavioural and anger management courses to address his behaviour.
The child referred to the assault during her interviews with the family consultant and confirmed the incident had made her feel scared. She also expressed confidence it would not happen again, as “there are two houses now” (at [76]).
As to the effect on the mother, she deposed to feeling isolated and depressed living in Australia with no family support and those feelings have increased since the family violence and separation. That does not sit comfortably with her desire to relocate to City B, where there was no evidence of any social network, connections or genuine employment offers.
The family violence incident would undoubtedly have had an effect on the mother and the evolution of the co-parenting relationship, as noted by the family consultant. During cross-examination the father acknowledged the effect of the assault on the mother. The mother did not adduce evidence of any psychological or professional assistance she had sought, subsequent to the assault.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
It is self-evident these proceedings need to conclude and enable each parent to get on with life There is little benefit for the child if her parents are engaged in protracted litigation.
Any other fact or circumstance that the Court thinks is relevant
The mother proposed the father could relocate to New Zealand, if the child were permitted to do so. The father was cross-examined about this proposal and said he had not really given a move much consideration, as he had only been to New Zealand twice and had no friends or support in that country. He had worked for his current employer for around six years. He had not made any enquiries about employment or housing in New Zealand, other than a Google search. He thought the going wage was $25 per hour and the cost of renting a three bedroom house would be around $500–$600 per week.
I accept the father’s evidence in this regard.
Consideration of the advantages and disadvantages of the respective proposals
I will now consider the advantages and disadvantages of the proposals of the parties. In this case, as in most relocation applications, the considerations for and against relocation are finely balanced and the decision involving international relocation is particularly difficult.
The mother asserts a relocation to New Zealand will have a number of advantages. First, she will have the support of her family including her sisters and mother, and will no longer feel homesick and miss her family and friends. According to the mother, her emotional and psychological well-being have been affected since the incidents of family violence perpetrated by the father. Her feelings of isolation and depression have increased since the incidents and separation from the father. The child will benefit from seeing her mother happy and in a supportive environment surrounded by a large and loving family. The child will also further her close and loving relationship with the extended maternal family including her aunts and cousins.
Secondly, New Zealand presents many opportunities to relieve the mother’s financial pressures and stresses. She anticipates obtaining employment as a health professional in New Zealand and rent-free accommodation with her sister Ms L for as long as necessary. Annexure 5 to her affidavit filed 20 June 2022 is a letter from P Region Health Service about the mother’s application for a health professional position. Additionally, she will no longer be required to pay interest on her New Zealand student loan if she is a resident of that country. Her improved financial circumstances will be advantageous for the child and will enhance long term financial security for the mother.
Thirdly, the child will be able to have a rich education in New Zealand because there is an abundance of schools in the area in which the mother seeks to live, all of which although offer exceptional educational development incorporating traditional language, customs and culture in the curriculum. In Australia, the child does not receive any educational exposure to traditional New Zealand culture. She will also be able to continue extracurricular activities and potentially explore different activities which are not available in City C. In the long-term, there are more employment opportunities for the child in New Zealand as opposed to City C.
Orders requiring the mother to remain in a location where she professes to be unhappy may result in her experiencing feelings of loss and anger and resentment directed at the father, which may undermine future parental communication and cooperation.
The primary disadvantage for the child, if the mother is permitted to move to New Zealand with the child, is the child’s inability to spend regular time with her father, as she has done post separation. The father contends such a move will substantially affect the nature of the child’s relationship with him and will reduce both the amount and frequency of her time. A move will also prevent a flexible and spontaneous relationship between parent and child and the opportunity for the father to participate in the child’s education and extracurricular activities.
The family consultant identified a reduction in time from a weekly basis to several times a year would alter the content and dynamic of the relationship between the child and her father, noting that the child frequently engages in active and outdoor activities with her father. The family consultant (at [106]) also observed “the quality of the relationship may deteriorate in the absence of mutual engagement in activities, as has been their custom”. As the child grows older she will probably develop other relationships, activities and interests which may adversely impact on her wish to travel to Australia from New Zealand each holiday period.
A move to New Zealand will inevitably also impact on the child’s relationship with her extended paternal family and would result in her leaving friends, social networks and school community in City C, where she has lived since birth. She would be required to adapt to a new country of residence, new home and school. The family consultant identified these logistical challenges carry associated emotional and social challenges for young children, although the parent’s description of the child’s temperament and development indicated resilience and adaptability.
I have already referred to the added difficulty of the cost of travel between Australia and New Zealand and the father’s capacity to meet those costs. The mother claims she will be in a financially superior position if she relocates and she will have the capital from the sale of her home in City C, which could be applied towards the cost of travel if necessary. I note the mother does not propose that she be responsible for the cost of travel in the event the father is unable to meet that cost.
The benefits of the mother’s proposal to relocate to City B, were articulated as significantly better employment opportunities for the mother and greater educational and extracurricular opportunities for the child. The mother did not adduce any detailed corroborating evidence about future employment prospects for her in City B, other than referring to some preliminary enquiries she had recently made.
The disadvantages for the child are similar to a relocation to New Zealand, if the mother’s primary position for time between the child and her father is adopted by the Court. The mother initially proposed the father’s time be reduced to holiday time, the same as her proposal for a New Zealand relocation, and did not include any proposal for additional term time, despite the travel time between City C and City B being a number of hours. Despite that initial proposal, the mother deposed in her supplementary affidavit that the distance between City C and City B is not so significant that it would prevent the child from maintaining relationships with friends and her social network in City C.
Ultimately, the mother amended her proposal for the father’s time with the child if relocation to City B were permitted, to provide for time each alternate weekend from after school Friday to Sunday afternoon. I previously have referred to the comments of the family consultant about a reduction of time between the child and her father and the impact of extended travel on the child, if she moved to City B.
There are positive considerations in the father’s proposal. First, the child would continue to live in City C, where she was born and has always lived, in the primary care of her mother, which would promote a sense of stability and security for her. Secondly, the relationship with her father would continue and probably be enhanced with additional time. Shared activities and outdoor pursuits would also continue. Thirdly, there would be no travel or practical difficulties for time between father and daughter. Fourthly, the child will be able to have regular time with the paternal extended family, and in particular her aunt and cousins who are also children.
The most significant disadvantage of the father’s proposal, is that it requires the mother to remain in a location where she professes to be unhappy, which may result in her experiencing feelings of loss, anger and resentment directed at the father, which may undermine future parental communication and cooperation.
Discussion
It is difficult to reconcile the mother’s desire to be with her extended family in New Zealand and the anticipated improvement in her financial position, with her alternative proposal to relocate to City B. The mother did not adduce any evidence about friends, family or potential social networks available to her in City B or indeed whether she knew anybody in in that city at all. There was no evidence about whether the mother’s Covid-19 vaccinations status would preclude her from working as a health professional in City B, whether she would sell her home in City C or retain it and rent in City B, nor evidence about the cost and availability of housing and other living costs if she relocated to City B. Her proposal to move to a city, where on the evidence she had no friends or contacts, and no job, undermines her submissions about the benefits to herself and the child of moving to New Zealand to enjoy extended family life and financial benefits.
There were deficiencies in the mother’s evidence about both her proposed relocations. As to her proposal to relocate to New Zealand, she did not adduce any independent evidence to substantiate her claim that health professionals in New Zealand are not required to be vaccinated against Covid-19 in order to obtain employment. Neither had she made extensive enquiries about availability and cost of accommodation in the area she proposed to live in New Zealand, upon her deciding to establish her own household. She estimated the rental cost of a house would be $300–$350 per week, which was more than her current mortgage repayments of $275 per week.
Her proposals about City B were vague and not considered. It transpired during cross-examination the only interview she had for proposed employment in City B was a telephone call and she had submitted her CV. She did not know whether the job discussed involved her talking with patients and doctors and whether her unvaccinated Covid-19 status would preclude her from the job. She agreed she was unable to say the telephone interview was a serious job offer because she had not addressed the issue of non-vaccination. She had not made any enquiries about the practicalities of moving to City B, including availability and cost of housing, nor any enquiries about particular schools or opportunities for the child’s education and extracurricular activities. She had assumed there would be more opportunities for the child in City B. She was unable to concede the detriment to the child by removing her from the home where she has always lived, her father who lived some distance away and her friends and links to her community.
During cross-examination about her current financial obligations and income, it was apparent she had the capacity to continue to pay for the mortgage encumbering her home and other financial commitments in City C and I so find.
The mother conceded there were considerable difficulties with her mother’s health, as she had medical conditions, and Ms L had also had prior addiction problems. I appreciate the mother may feel homesick and miss her family in New Zealand, how however this is not a situation where the mother has recently been removed from her friends and family and has not had an opportunity to establish a network in City C. The mother has lived in City C since 2009, over 13 years ago and two years prior to meeting the father. Although she has attempted to portray her life in City C as isolated with little social network and support, I do not accept such a highly resourceful and articulate person would remain living in a town for over 13 years if she were isolated and had no friends or social network. The email from her former employer, which is exhibit F-3, indicates the mother was a valued member of staff with her previous employer and it was her choice not to be vaccinated against Covid-19 which led to her employment termination.
The father did not seek to impose any restrictions on the child travelling to New Zealand and the mother is at liberty to travel to New Zealand during her school holiday time, as frequently as her finances permit to spend time with her mother and other family members. Regular travel to New Zealand for the child would adequately address the cultural issues raised by the mother.

Similarly, there is no apparent restriction on family members, other than the maternal grandmother, travelling to visit the mother and child, as they have done in the past. The mother considers the relationship between the child and her father could be adequately addressed by electronic communication and the same could be said about the child’s relationship with her extended maternal family.
The mother’s evidence about lack of support to care for the child, if she or the child were incapacitated ignores the father’s capacity to step up and care for his daughter, should the need arise.
The mother’s proposed relocation to New Zealand and in the alternative, City B, reflects adult centric decision making, rather than prioritising the child’s needs above her own. The mother’s evidence was the proposal to relocate to City B occurred to her after she signed an employment contract in late 2022.
There was agreement the child is well settled in City C, where she has lived all her life and is connected to her school community. Her school reports, Exhibit F-1 were positive and glowing. She enjoys an excellent relationship with both parents, as previously referred to and is well loved by both extended families. As observed by the family consultant, she enjoys spending time with both parents, whose diverse parenting styles afford her beneficial experiences and the child considers both of her parent’s residences, her home. The child conveyed to the family consultant her contentment with both parental relationships and said she did not like it very much when speaking on the phone, “because it is better to be with the person than on the phone” (at [78]).
The mother’s two proposals would disrupt the ongoing relationship between the father and the child and the child’s current sense of stability and connection to both households. The mother considered electronic communication each alternate day would effectively compensate for the reduction in frequency of time between the child and her father, if relocation were permitted. During cross-examination, the mother acknowledged the family consultant had doubts about the adequacy of Skype or phone calls maintaining a relationship between the child and her father. She would not acknowledge Skype or phone calls were a poor substitute for immediate contact between the child and parent, although she did admit there was a massive difference between electronic and face-to-face time. She was unable to say whether, if the roles were reversed substituting electronic contact would be increasingly detrimental to a relationship between a parent and child. The mother’s responses or lack thereof, were either deliberate attempts to acknowledge the obvious, or demonstrative of her lack of insight about the detrimental effect of her proposal. As astutely said by the child, electronic communication is no match for spending time with a parent.
Whilst I accept the mother will be disappointed if she is not permitted to relocate to either destination, she struck me as resilient, practical and organised to the extent she would still be able to provide exemplary care for her daughter in City C. The family consultant recognised the mother would continue to feel isolated and perhaps disempowered because of restricted access to family support. The mother’s proposal to relocate to City B, with so many unknowns and lack of future proposals, gives me confidence in her capacity to continue to make a life for herself and the child in City C where she has successfully lived for the past 13 years. She will also be assisted by the father’s care of the child and his apparent willingness to step up and assume further responsibility for the care of their daughter. The unfortunate consequence of her refusal to obtain a Covid-19 vaccine is the loss of employment, and colleagues where she has been employed for many years, however she is the architect of her own destiny in that regard. She will, of course be able to continue to visit family in New Zealand and maintain regular electronic contact with them which may provide comfort to her and should she wish consider re-engagement in therapeutic support.
On a finely balanced consideration of all relevant factors, including the mother’s right to freedom of movement, I determine the child’s best interests are served by her remaining in City C in the primary care of her mother and in close proximity to her father’s home. Those living circumstances will best ensure stability and continuity of both of the child’s parental relationships.
Parental Responsibility
Section 61DA provides, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Because of the father’s assault of the mother, the statutory presumption of equal shared parental responsibility does not apply in this case. However, both parents seek an order the parties have equal shared parental responsibility for the child. Subsequent to late 2019, to their credit, the parties appear to have established a relatively positive co-parenting relationship and are likely to continue some level of cooperation into the future. I accordingly intend to make an order that the parties retain equal shared parental responsibility for their daughter.
Having determined that it is in the best interests of the child that there be an order for equal shared parental responsibility, I am now required to address the statutory pathway set out in s 65DAA(1)–(5).
Neither party sought an order for equal shared care of the child. Obviously such an order would not be practical if the mother were permitted to relocate to New Zealand or City B, as the father’s position is that he will not relocate to either New Zealand or City B. The father did not seek orders for the child to live equal time with him, if the mother were not permitted to relocate to either proposed destination. Rather, he sought orders for the child to live with the mother and spend time with him five nights a fortnight during school terms and half of school holidays. The mother proposed the child should spend four nights a fortnight with the father during school term time, plus holiday time, if she remained living in City C.
The proposals of each parent, if the mother remained living in City C meet the statutory criteria set out in s 65DAA(3). The proposals of each parent if relocation were permitted, that is extended holiday time if the child relocates to New Zealand and each alternate weekend and holiday time, if the child relocates to City B, are the only possible reasonably practical proposals.
WHAT ORDERS ARE APPROPRIATE FOR THE CHILD’S TIME WITH THE FATHER?
As I have determined that the orders will not be made permitting the child to relocate to either New Zealand or City B, I will now turn to the respective proposals of the parties predicated upon the child remaining in City C.
If the child is not permitted to relocate, the mother proposed the existing time between the child and her father be consolidated into a four night block to reduce transitions. She also proposed further progression would require a graduated approach. According to her, the child has found it difficult adjusting to increase time spent with her father and is often exhausted from the back and forth between parents. The child regularly asked her mother who is collecting her on school days and at times becoming unsettled and confused about the current arrangements.
The mother further proposes that the current time the child spends with her father has impacted on her extracurricular activities as she has become too exhausted to attend.
The father proposes the term time the child spends with him be reconfigured until the end of 2022 so that she spends time with her father overnight Tuesday in week one and three overnights in week two, from Friday until Monday morning. As from the commencement of 2023, the father proposes the time in week two should increase with an additional overnight in a block, so the child’s time with him is increased to five nights a fortnight.
Both parents propose the school holidays should be shared equally and the child should spend the long summer holidays with each parent on a week-about basis.
The family consultant recommends the child spend five nights a fortnight with her father, in the same configuration proposed by the father, and that an increase in time with her father may be of benefit to the child.
The family consultant opines a configuration of five nights a fortnight with a non-residential parent permits the establishment of a consistent and predictable routine, conducive to child development. She recommends the split of overnight periods across a fortnight, to ensure the child is not regularly separated from either parent for extended periods at her current age. Following a period of readjustment to an additional overnight, perhaps in 2023 a further consolidation to a single block of time, for example from Thursday until Tuesday each alternate week may be appropriate for the child.
I accept the unchallenged evidence of the family consultant as to the benefits to the child of an increase in time with her father and intend to make orders substantially in accordance with the father’s proposal.
The orders I intend to make will provide for the child to spend time with her father, in a fortnightly cycle, for one night in week one and three nights, progressing to four nights in week two. To address the mother’s concerns about the child’s confusion about her routine, I will make orders providing for the child to spend time with the father overnight on Thursday in week one, so that when her time progresses to four nights in week two at the commencement of term 1 2023, the time with the father will also commence on Thursday. The child will then know she will spend time with her father each Thursday night with each alternate week including a weekend. This will enable the father to be an active part of the child’s school life and extracurricular activities, whilst providing a primary home base with her mother.
As neither parent sought a block of five consecutive nights with the father, I do not intend to change the configuration of the child’s time with her father to a five night block. Hopefully the co-parenting relationship will improve over time and if a change in configuration is warranted, the parents will be able to reach agreement.
I will make orders for holiday time in accordance with the proposals of the parents with the term holiday time with the father to continue in the same weekly cycle of time, as proposed by the father and time over the long summer holidays to be week about with each parent, as proposed by each of them.
As for special occasion time, both parents propose Christmas Eve and Christmas night alternate between the parents. I will make orders in accordance with the proposal, save that changeover will be at 3.00 pm, as proposed by the mother, as that enables the child to have a bit more time for lunch with the relevant parent. I will also make orders for the child to spend time with her parents on her birthday and the birthday of each parent. I have provided for time on a school day, which I consider is the most practical option, and for time on a non-school day. I hope the parents will be able to agree on the most convenient time for the child to spend four hours with the other parent on her birthday, but if not, then I have provided for her to have lunch with the birthday parent, so she is able to have a proper celebration. As the father did not propose time during Easter, I have adopted the mother’s proposal, which provides for the child to enjoy Easter with both her parents in alternate years. For Mother’s Day and Father’s Day, the mother proposes that the child be in that respective parent’s care from 10:00am on the Sunday until the commencement of school on Monday, whereas the father’s proposal is for the child to be placed in their respective care from 6:00pm on the Saturday prior to Mother’s/Father’s Day until 6:00pm on the Sunday. I will make orders in accordance with the mother’s proposal as this will reduce the amount of changeovers over the course of the weekend compared to the father’s proposal.
Both parents seek an order for the child to have electronic communication with the other parent every second evening, with the mother proposing the time take place between 6:00pm and 6:30pm and the father proposing between 7:00pm to 7:30pm. I consider the father’s proposal to be too late for an early primary school aged child and the mother’s time to better suit the routine of a young child. I will make orders in accordance with the mother’s proposal. As the child gets older and has afterschool commitments, I anticipate the parents will reach a suitable agreement for the appropriate time frame, as it is in their mutual interest to do so.
Both parties seek an order that they have written electronic communication, save for in cases of emergency. The mother proposes the parties continue to communicate via the WeParent app whilst the father seeks orders they communicate via text message. In the absence of submissions from either party, I propose to maintain the status quo and will make orders for the parties to continue communicating through the parenting app.
In addition to the time the child will spend with the father, there were a few ancillary disputes, including, injunctions, travel, who has possession of the child’s passports, parental attendance at school and extracurricular activities, and attendance at a parenting orders program.
The mother seeks orders restraining the parties from inflicting harm or discipline on the child, from drinking alcohol to excess whilst the child is in their care or allowing or causing the child to ride on or be near machinery or motorised equipment. Again, neither party adduced evidence nor made submissions regarding the necessity or otherwise of such orders and for reasons referred to earlier, both parties are very capable parents and I have confidence they will use every endeavour to prevent from the child being place in harm’s way and do not intend to make the injunctions sought.
I will make orders that the parties be at liberty to travel interstate and internationally with the child during periods in which the child is ordinarily in their care. The mother proposes 21 days’ notice be given for interstate travel and 30 days’ notice for international travel, whereas the father proposes 14 days’ notice for interstate travel and 45 days’ notice for international travel. I consider 45 days’ notice for international to be more appropriate and that timeframe would enable an application opposing travel to be filed by either party. I consider 14 days’ notice for interstate travel to be sufficient.
The father’s proposed orders also provide for the mother to be at liberty to travel to New Zealand for an additional period not exceeding 14 days per calendar year with conditions. The mother’s proposals fall silent on this subject but given the mother’s desire to relocate to New Zealand, she is unlikely to oppose the opportunity for extra travel and as such, I will make orders sought by the father.
The father seeks an order for the child’s passport to be held by his lawyers. I intend to make an order that the mother retain the child’s passport, as she is the child’s primary carer. I do not consider the mother to be a flight risk. She has most appropriately sought the court’s permission to relocate from her current residence and her travel to New Zealand with the child following the father’s assault was reasonable. There is no necessity to involve lawyers to hold a passport.
The parties sought slightly different orders about their attendance at the child’s school and extracurricular activities. Neither party adduced evidence or made submissions specifically in support of their proposals. The main difference was the mother proposed each parent should be able to attend the child’s extracurricular activities, presumably including when the child is with the other parent. I propose to make orders enabling both parties to attend the child’s school as that is not controversial. Because there is an existing consent order made 23 February 2021 permitting both parents to attend the child’s extracurricular activities upon 24 hours advance notice to the other, I will make a final order in terms of the previous consent order. The father did not raise any objection to the existing arrangement.
I do not intend to make an order for both parties to complete a parenting orders program, as sought by the mother as no evidence was adduced on this by either party during the course of the trial.
The mother also sought an order for the parties to attend family dispute resolution in the future, in the event the parents are unable to reach agreement. I do not intend to make such an order as s 60I of the Act, subject to certain limited exceptions, requires attendance at family dispute resolution before applying for a Part VII order.
COVID-19 VACCINATION
The final contentious issue between the parents was whether the child should be vaccinated against Covid-19.
The mother objected to the child receiving Covid-19 vaccines, despite her previous employment. The basis for the objection is articulated by the mother in her trial affidavit (at [112]–[114]). She considers the risk-benefit ratio for healthy children in the child’s age group does not warrant the child being “injected with an emergency use authorisation, clinical trial drug”. Furthermore, she feels “it is prudent to err on the side of caution until the clinical trial is concluded and established data obtained on the safety and efficacy of vaccination in this age group, bearing in mind no long-term data is currently available on the long term effects of this vaccination as it does not exist”.
The mother did not adduce any expert evidence about the issue and despite her being a health professional, she did not profess to have any expertise or qualifications relevant to the Covid-19 vaccination program.
The father seeks orders for the child to be vaccinated against Covid-19 and relies upon paragraphs 112–113 and 115–116 of his trial affidavit.
Because of the lack of expert evidence adduced by the parties, during the proceedings I arranged for my associate to provide a copy of a recent judgement of McClelland DCJ, Cranston & Persson (No 2) [2022] FedCFamC1F 187 (“Cranston”) which dealt with the very same issue, being whether the subject child should receive immunisation against Covid-19.
Neither counsel made comprehensive submissions, or sought to adduce further relevant evidence, other than counsel for the father urged the Court to take judicial notice of Australian Government guidelines for Covid-19 vaccination and to make a decision to avoid further dispute between the parties.
Subsequent to the conclusion of the trial, an email was forwarded to the parties practitioners inviting further submissions about Covid-19 vaccination and in particular the matters raised in Cranston.
The father’s written submissions mainly referred to passages in Cranston. He relied on his trial affidavit and submitted the benefits associated with Covid-19 vaccination far outweigh the risks to the child, noting her health, young age and gender.
The mother’s submissions sought to distinguish Cranston for a number of reasons. First, because the child in this case had not consulted a doctor about the issue and there was no medical evidence in relation to the child and Covid-19 vaccine. I reject that submission as the mother’s own unchallenged evidence was the child does not have any co-morbidities nor vulnerabilities which would make her more susceptible to adverse effects from a vaccine and further the child has previously been vaccinated against other diseases as recommended by the Australian Government.

Secondly, there was no evidence about the child’s views about Covid-19 vaccination. I reject that submission as the child is seven years old and is not capable of forming or rationalising any informed or mature view as to the benefits or risks of Covid-19 vaccination.
Thirdly, neither parent exhibited any documents to their affidavits which enable inferences to be drawn and if the father is permitted to adduce further evidence via his submissions, then the mother should be accorded procedural fairness and be permitted to adduce evidence in rebuttal.
Regrettably neither party exhibited relevant documents to their affidavits including recommendations of ATAGI or the relevant Commonwealth Department, and I do not intend to permit the father to adduce further evidence via his submissions.
Because of the lack of evidence before me, I am unable to determine whether the child should be vaccinated against Covid-19. As this issue will no doubt continue to be contentious for the parties, I will make orders for the parties to have liberty to file a further application and supporting affidavit, limited to whether the child should be vaccinated against Covid-19. This is most unfortunate, however I am hampered by the lack of evidence presented by the parties at trial.

I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 13 December 2022

File number(s):	MLC 1292 of 2020
Judgment of:	WILLIAMS J
Date of judgment:	13 December 2022
Catchwords:	FAMILY LAW – PARENTING – RELOCATION – Where the mother seeks to relocate the child’s residence to New Zealand, or City B in the alternative – Where the child is seven years of age and has resided in country Victoria with the parents and paternal family since birth – Where the mother has lived in country Victoria for 13 years – Where the maternal family live in New Zealand – Where relocation would deprive the child of regular and consistent time with the father – Where the father is unable to meet the costs of regular overseas travel – Where the mother’s proposal prioritises her needs over the child’s – Where the considerations for relocation are finely balanced – Where relocation of the child is not permitted – Child to live with mother and spend five nights a fortnight and half holidays with the father from 2023 – Medical procedures – Covid-19 vaccinations – Whether the child should be vaccinated – Where there was a lack of evidence presented by the parties at trial – Order made for the parties to have liberty to file a further application and supporting affidavit limited to whether the child should be vaccinated against Covid-19.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 60I, 61DA, 65DAA, 67ZC
Cases cited:	A v A: Relocation Approach (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 Banks & Banks [2015] FamCAFC 36 Cranston & Persson (No 2) [2022] FedCFamC1F 187 Mazorski v Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 Morgan & Miles [2007] FamCA 1230 Sigley & Evor [2011] FamCAFC 22 Taylor & Barker [2007] FamCA 1246 U v U [2002] HCA 36 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	188
Date of hearing:	24–25 October 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Allen
Solicitor for the Applicant:	Van Beveren & Associates
Counsel for the Respondent:	Mr Hall
Solicitor for the Respondent:	Heinz & Partners

MLC 1292 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ANDERSON Applicant
AND:	MR SALINOS Respondent

order made by:	WILLIAMS J
DATE OF ORDER:	13 DECEMBER 2022

Exhibit Number	Description
F-1	X’s School Reports (Pages 414–443 of the Court Book)
F-2	Financial Statement of the mother sworn 30 January 2020
F-3	Letter from City C Medical Centre to the mother dated 25 January 2022 in relation to her employment
J-1	Family Report dated 17 May 2022