Beitel & Beitel - [2021] FedCFamC2F 175

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beitel & Beitel [2021] FedCFamC2F 175

File number(s): MLC 4973 of 2021

Judgment of: JUDGE BENDER

Date of judgment: 13 October 2021

Catchwords:
FAMILY LAW – PARENTING – RELOCATION – the Mother seeks to relocate the residence of the parties’ three children aged 13, 11 and 7 to Melbourne from City C – the Mother maintains she will relocate to Melbourne regardless of what orders are made – the Father maintains he will stay in City C regardless of what orders are made – the Father proposes that it is in the children’s best interests to remain living in City C – the parties agree that the children should spend alternate weekends, most school holidays and special occasions with the parent they are not living with

HELD – the children remain living in City C with the Father – the children spend time with the Mother on alternate weekends, for most of school holidays and on special occasions

Legislation: Family Law Act1975 (Cth), ss 60B, 60CA, 60CC(2), 60CC(3), 61DAA

Cases cited: Taylor v Barker [2007] 37 Fam FLR 461
Fyfe v Kingsley [2020] FCCA 1535
AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Heath v Hemming(No.2) [2011] FamCA 749
MRR v GR [2010] HCA 4

Division: Division 2 Family Law

Number of paragraphs: 226

Date of last submission/s: 24 August 2021

Date of hearing: 23-24 August 2021

Place: Bendigo

Counsel for the Applicant: Ms Mallett

Solicitor for the Applicant: J A Middlemis

Counsel for the Respondent: Ms Swart

Solicitor for the Respondent: Dhillon Legal
ORDERS

MLC 4973 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BEITEL

Applicant

AND:
MS BEITEL

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

13 OCTOBER 2021

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for decisions concerning the major long-term issues with respect to the children of the marriage X born in 2008, Y born in 2010 and Z born in 2014.
2.X, Y and Z live with the Father in City C.
3.X, Y and Z spend time and communicate with the Mother as follows:
(a)each alternate weekend during school terms from 6:00pm Friday until 5:00pm Sunday (and such time shall commence on Thursday if Friday is not a school day and continue to 5:00pm Monday if Monday is not a school day;
(b)for the first 10 days of each school term holiday period commencing 6:00pm on the last day of term until 5:00pm on the tenth day of the school holiday period;
(c)for one half of each long summer school holiday period as agreed between the parties and in default of agreement for the first half (including Christmas Day) in the 2021-2022 holidays, and each alternate year thereafter, from 10:00am on the first day of the holidays until 10:00am on the middle day of the holidays and for the second half on 2022-2023 and each alternate year thereafter from 10:00am on the middle day to 5:00pm on the second last day before school term commences;
(d)on the weekend of Mother’s Day from 6:00pm Friday until 5:00pm on Sunday;
(e)for such further time in the City C area as may be agreed in writing upon the Mother giving the Father at least 7 days’ notice in writing.

4.X, Y and Z communicate with each parent when not in the care of that parent by telephone, FaceTime, Skype or video call as follows:
(a)each Wednesday between 6:00pm and 6:30pm;
(b)on each of X, Y and Z’s birthday’s between 6:00pm and 6:30pm;
(c)on Christmas Day and Easter Sunday between 10:00am and 10:30am; and
(d)at any other reasonable time as requested by X, Y and/or Z.

5.Unless otherwise agreed, changeovers are to occur at the main entrance of McDonalds town D situated at E Street, Town D.
6.Each parent shall:
(a)keep the other parent advised at all times of their current residential address and telephone number;
(b)keep the other parent advised at all times of any telephone number for X, Y and/or Z;
(c)advise the other parent immediately in the event that X, Y and/or Z suffer any serious illness, injury or hospitalisation;
(d)authorise any medical practitioner which X, Y and/or Z may attend from time to time to communicate with the other parent in respect of X, Y and/or Z’s medical condition and/or treatment;
(e)provide to the other parent in a timely manner information in relation to X, Y and/or Z’s wellbeing; and
(f)authorise all schools at which X, Y and Z attend to:
(i)provide the other parent at their expense copied of all records, notices and photographs in relation to X, Y and Z;
(ii)communicate with the other parent with respect to X, Y and Z’s progress; and
(iii)subject to any school policy, allow the other parent to attend all functions to which parents are normally invited.

7.Each parent, their servants and their agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their household in the presence or hearing of X, Y and/or Z and from permitting any other person to do so;
(b)discussing these proceedings with X, Y and/or Z or in the presence of X, Y and/or Z’s hearing other than to explain the effect of these orders.

AND THE COURT NOTES THAT:
A.The parties are encouraged to engage X, Y and Z in appropriate professional supports to assist in them in this transition.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure 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 a pseudonym Beitel & Beitel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION

This matter is to determine whether the parties’ three children X born in 2008 (“X”), Y born in 2010 and Z born in 2014 live with their Father in City C or with their Mother in Melbourne.
The Mother is seeking to relocate from City C to Melbourne with X, Y and Z. If X, Y and Z are not permitted to relocate to Melbourne, the Mother has advised the Court she will still move to Melbourne.
The Father would prefer the Mother remain in City C so he and the Mother can share the care of X, Y and Z. However given the Mother’s evidence she is moving to Melbourne whatever the outcome of this matter is, the Father proposes X, Y and Z live with him in City C.
The parties are in agreement as to the arrangements for the time X, Y and Z are to spend with the parent they are not living with and they are:-
(a)during school terms each alternate weekend from 6.00pm on Friday to 5.00pm on Sunday (with such time to commence at 6.00pm on Thursday if Friday is a non-school day and conclude at 5.00pm on Monday if Monday is a non-school day);
(b)      for the first 10 days of each term holiday;
(c)for one half of the long summer vacation alternating the first half (including Christmas Day) and the second half;
(d)      on the Mother’s Day and Father’s Day weekends;
(e)otherwise in Melbourne or City C on the vising parent giving seven days’ notice;
(f)by FaceTime/Skype or other video call between 6.00pm and 6.30pm each Wednesday, on each of X, Y, Z and the parent’s birthdays, on Christmas Day, on Easter Sunday and at any other reasonable time requested by any of X, Y or Z; and
(g)       changeover is to occur at McDonalds Town D.
BACKGROUND
The Father was born in 1974 and is aged 46 years. He is a Manager/Healthcare professional employed by Employer CC earning approximately $85,000 per annum. He currently lives in a rented three-bedroom home in City C. He has not re-partnered.
The Mother was born in 1977 and is aged 43 years. She was employed on a part-time basis as a healthcare professional with Employer CC until resigning in 2021. She has now obtained employment for three days per week at Employer W as a Manager working in Department X and was due to start in 2021.
It is the Mother’s evidence that she has not re-partnered. The Father believes the Mother is in a relationship with Mr E. The Mother’s evidence is that whilst she and Mr E had some “dates” after she and the Father separated, she and Mr E realised theirs was not to be a romantic relationship and they agreed they should continue to be the good friends they have been for the last 30 years.
The parties commenced cohabitation in 2002 and married in 2007.
It is the Mother’s evidence that there was an extensive history of family violence during the parties’ relationship with the Father being verbally, emotionally and financially controlling.
The Father denies he was verbally, emotionally or financially controlling of the Mother during their relationship.
The Father agrees that in 2008 he restructured the parties’ finances to ensure the parties’ expenses were met. He explains the parties’ financial arrangement in paragraph 16 of his trial affidavit as follows:
16.During our relationship, the mother and I had shared bank accounts. Throughout our relationship I was normally the one to attend to payment of the mortgage and everyday bills. In the past there were increasing occasions where the mother spent funds in our joint bills account and from the mortgage re-draw account which meant that when bills were debited, the accounts became overdrawn, and we incurred penalty fees. This also caused us to miss multiple mortgage repayments, During our relationship I decided to set up a bank account in my name so that I could transfer money for bills without it being spent by the mother. I would transfer the necessary funds to our bills account and leave between $700-$900 per fortnight in our joint Everyday account as agreed with Ms Beitel. The mother usually had the sole benefit of those funds. My income was normally applied to the mortgage repayments and other bills with the surplus going into our joint account for which the mother was a cardholder and had access to. The mother spent money freely throughout our relationship.
The Father also took over responsibility for the parties’ tax returns in about 2008. He maintained spreadsheets that closely monitored the parties’ finances.
Each party accuses the other of being controlling and of demeaning the other and that nothing they did was good enough for the other.
The parties agree that from at least 2018 they were both very unhappy in their marriage. They did not share a bed for the last four years of their relationship. They were constantly arguing, often in front of X, Y and Z. Each accuses the other of being the instigator of these arguments.
It is the Mother’s evidence that in April 2021, in a bid to regain some financial independence, she arranged for her pay to go into her personal account and not into the parties’ joint account.
The parties’ evidence as to what then ensued leading up to their separation differs.
It is the Father’s evidence that:-
•In 2021 the Mother told him she had feelings for another man and wished to separate;
•he, X, Y and Z travelled to Adelaide from in 2021 to visit his family. Whilst he and the children were in Adelaide, the Mother sent X a text message saying she was in Melbourne. The Father subsequently discovered the Mother had actually travelled to Brisbane with Mr E;
•after the Father returned to City C with X, Y and Z, he proposed the parties attend counselling to discuss how the parties could move forward and determine parenting arrangements. The Mother refused;
•the Mother asked the Father to move out of the former matrimonial home and he told her they needed to work out property and parenting matters before he did so. The parties argued and he agrees he did yell “Don’t you screw me over”;
•on 22 April 2021 he received a text from the Mother saying “I’m going to Melbourne with the kids for a few days. I need to recharge”; and
•on 25 April 2021 the Mother sent a further text saying she was intending to take the children to look at schools in Melbourne. The Father texted the Mother saying he did not agree to her taking the children to live in Melbourne. The Mother responded via text message saying the relationship was over, she was moving to Melbourne and X, Y and Z were happy.
It is the Mother’s evidence that:-
•In 2021 she told the Father she wished to separate. Because of his financial control she did not have the funds to seek alternate accommodation;
•around this time the Mother discovered her iPhone settings had been changed and registered to the Father’s Apple account. She found the Father had installed tracking devices on her phone which enabled him to access her “location, emails, text messages, photos, phone camera and eavesdrop on private conversations”;[1]
•she did travel to Brisbane with Mr E whilst the Father, X, Y and Z were in Adelaide. It was not a romantic trip but she went as a friend as he was looking at real estate;
•she asked the Father to move out but he refused to do so;
•In 2021 she was speaking to Mr E when the Father started to aggressively ask her where her wages were. Mr E was so concerned he offered to drive to City C to collect her and the children. The Mother told Mr E that would not be necessary but decided she needed to move out; and
•In 2021 the Mother took X, Y and Z and moved to the home of Mr E in Suburb F, a suburb of Melbourne between Suburb G and Suburb H.
[1] Mother’s trial affidavit filed 12 August 2021, paragraph 15.
On 28 April 2021 the Father’s solicitors wrote to the Mother advising the Father did not consent to her relocating X, Y and Z’s residence to Melbourne and requesting she return the children to the City C area by 1 May 2021.
The Mother’s solicitors responded to the Father’s solicitors on 3 May 2021 stating inter alia:-
We are instructed that our client has decided to relocate with the children because of ongoing family violence perpetrated by your client. On our instructions there is an extensive history of family violence throughout the parties' relationship, specifically that your client was verbally and emotionally abusive, socially isolating and financially controlling of our client. On our instructions, the children have witnessed significant family violence perpetrated by your client and that this has caused the children to feel anxious and fearful.
On 4 May 2021 the Father issued an urgent application seeking interim orders for X, Y and Z to live in the City C area and the Mother return with the children within seven days.
Upon her arrival in Suburb F the Mother enrolled X at College J and Y and Z at Primary School K. Both schools are in Suburb F. They all lived in Mr E’s home in Suburb F.
The Father’s Application first came before me on 26 May 2021 on which date an urgent Section 11F Child Inclusive Conference was ordered for 27 May 2021 with the matter returning for interim hearing on 28 May 2021.
In the Memorandum to Court dated 27 May 2021 Family Consultant L under the heading “Adult Relationships” states:-
18.Mr Beitel and Ms Beitel provided opposing accounts of how they managed the household and attended to their children’s needs, with each prioritising their own positive attributes. Each parent felt unsupported by the other.
19.Mr Beitel and Ms Beitel described a particularly stressful period since 3 April 2021 when Ms Beitel informed Mr Beitel that she was developing feelings for another man (Mr E). This relationship has since developed, although Mr E was reportedly commencing employment in Queensland in the near future. The parents’ relationship deteriorated further as each tried to come to terms with the reality of their situation, how to manage the future financial and parenting matters, and their descriptions indicated some emotional dysregulation in response to this.
Under the heading “Children” Family Consultant L sets out:-
22.X), Y and Z:
a.Were interviewed together and informed of admissibility. They confirmed that they felt comfortable about their parents learning of their views.
b.Provided similar reports that their parents were “fighting” (verbally) usually about finances and employment, this began approximately two or seven years ago and lasted between 10 and 30 minutes, and they did not hear derogatory comments or witness physical violence. Their brief descriptions indicated that both parents were equally responsible for fighting, with fighting commencing as soon as the second parent entered the home. During their parents fighting, the children retreated to their bedrooms and felt “nervous.”
c.Reported that their mother spent time in her bedroom to avoid arguing with their father, and she informed them that she was scared of him yelling at her, and she now felt “happier” which they have observed.
d.Have recently been informed by their mother that their father kept money away from her, refused to leave the former matrimonial home and suggested that she move out, and was tracking her and X via their phones. Regarding the latter, X and Y expressed uncertainty about whether their father would track them.
e. Expressed that they missed their father and dog M, and described the (few) telephone calls with their father as “normal.” They made minor complaint about their father not providing a password for them to access their iPads and iPhone.
f.Had no strong preference if they lived in City C or Melbourne, but were cognisant about where their parents would live, and their father’s long work hours which may result in them been “home alone” sometimes.
g.Described daily activities and interactions with their father prior to parental separation. This included playing Lego, reading books, walking, helping with homework and bedtime routines, cleaning the dishes, camping, taking X to sports, helping Z get dressed, and heating up X’s lunch.
h.Identified no major differences between their schools in City C and Melbourne.
i.Confirmed that they did not feel scared or uncomfortable with either parent, and wanted relationships with each parent.
j.Were aware from their mother that Mr E was her “partner,” though they expressed confusion about what this meant. They did “family sports” once with their mother and Mr E, however, they were no longer engaged in any extra-curricular activities.
23. X presented as the leader of the sibling group…
24.X identified that he had “better” friends in City C than in Melbourne, and he would like to do sports.
25. Y presented the quietest of the sibling group…
27.Z presented quiet, however, she confidently expressed her views. Her only reservation returning to City C related to another girl “bullying” her at school because she accused Z of breaking school rules.

Family Consultant L identified the issues for the children to be:-
29.X, Y and Z appeared to take an approach of equality with their parents, possibly indicating their internal struggles with parental separation and what their immediate future may entail regarding where they live. For this reason, as well as their developmental immaturities and exposure to adult views and information, minimal weight can be placed on the children’s views regarding relocation. They are not able to fully comprehend the longer term effects of parental separation and relocation on their developmental needs and relationships with each parent and significant others.
30.There is no immediate risk to the children spending substantial and significant time with either parent. It will be important to safeguard the children from being further exposed to parental conflict, such as at changeovers, school events/functions and activities. Property and financial matters are a significant source of contention between the parents.
31.If the children returned to live in City C, they would have the familiarity of their home, school, friends, and community networks. The transition may be less detrimental to their overall development. They will be able to maintain regular and quality relationships with their father especially given their descriptions about his involvement in their daily lives.
32.If the children remained in Melbourne, their time and relationships with their father will be limited. This may be a challenging experience for the children as they gradually make sense about the loss of their father in their daily lives.
Family Consultant L’s recommendations were:-
34.The children will benefit from returning to their familiar home, school and community environment.
35.The children spend substantial and significant time with the parent they are not living with, and there be video/telephone communication without parental interference or oversight.
36. The parents refrain from sharing adult views and information with the children.
On 28 May 2021 after an interim defended hearing, interim orders were made which provided inter alia:-
•X, Y and Z live with the Mother;
•X, Y and Z be re-enrolled in their City C schools;
•X, Y and Z spend time and communicate with the Father:-
•from 4 June 2021 to 11 June 2021;
•commencing 18 June 2021 each alternate weekend from Friday to Monday;
•commencing Wednesday 16 June 2021 from 3.00pm Wednesday to 9.00am Thursday; and
•for half of school term holidays;
•from 11 June 2021 the Mother have sole use and occupation of the former matrimonial home.
The matter was listed for an urgent final hearing in the City C Circuit commencing 23 August 2021. Orders were made for the preparation of a Family Report. Both parties were also seeking property orders so orders were made for them to attend a Conciliation Conference.
On 26 July 2021 the parties resolved their property matters at the Conciliation Conference. Final property orders were made which provided for the former matrimonial home to be sold and the net proceeds be divided 57.5% to the Mother and 42.5% to the Father. There was also a splitting order made equalising the parties’ superannuation entitlements.
The Father obtained a three-bedroom rental property in City C which he moved into in 2021.
The Mother returned to the former matrimonial home with X, Y and Z in 2021. She continued to spend each weekend at Mr E’s home after she returned to City C.
The former matrimonial home sold very quickly. The Mother moved all her belongings to the home of Mr E. A friend of a friend made his home available to the Mother, X, Y and Z to live in in City C pending the outcome of the proceedings.
In 2021 there was an incident whereby the Father allowed Y, Z and Y’s friend V to have tea at acafe on their own in central City C. Y and V told the Father this had been pre-arranged and something they had done the day before when they were in the Mother’s care.
V’s mother contacted the Mother when V did not immediately come home from school. The Mother contacted the Father who told the Mother where the girls were. The Father was angry with the Mother during this call as he had just been stopped by Police for driving an unregistered car. It is his evidence the Mother had the registration papers and had not told him the registration was due.
The Father returned to pick up Y, Z and V. He was angry and disappointed with Y for misleading him. He returned V to her mother and apologised to her for what had occurred.
X, Y and Z’s current living arrangements reflect the orders made on 28 May 2021. On the weekend they are with the Mother she takes them to Mr E’s home in Suburb F.
THE EVIDENCE
The Father
The Father relies on his trial affidavit sworn 3 August 2021. The Father also gave vive voce evidence at the final hearing.
It is the Father’s evidence that he has always had an active role in X, Y and Z’s lives and that they have a close and loving relationship.
It is his belief that the best outcome for X, Y and Z would be for the Mother to remain living in the City C region so that they can share the children’s care and work together parenting their children. The Father told Ms EE, the Family Report Writer, that he wants both parents assisting each other to raise the children as “this is a two person job.”
Given the Mother’s evidence at the commencement of the final hearing that she will be moving to Melbourne whatever the outcome of the case, the Father believes it is in X, Y and Z’s best interests that they remain living in City C where they have lived all their lives, where they are settled in their schools and have their friendship groups and their extra-curricular activities. It is the Father’s evidence that he will be able to assume their full-time care as he has some flexibility in relation to his working arrangements including being able to work from 9:00am to 3:00pm and to work from home if any of the children are sick.
Whilst agreeing that he and the Mother’s marriage, particularly in the four to five years prior to separation, was not happy and that they argued often, he denies absolutely the Mother’s allegations that he was verbally, emotionally or financially controlling of her.
It is the Father’s evidence that the Mother was a poor money manager and that she would regularly spend monies that had been set aside to meet the mortgage and other necessary commitments such that those payments were in arrears. It is his evidence that for this reason he set up their finances to ensure that they always had sufficient funds to pay their bills but there was always $700 to $800 per fortnight in a joint account for discretionary spending which the Mother had complete access to.
The Father adamantly denies that he downloaded apps onto the Mother and X’s phones so that he was able to track the Mother or access her emails, photographs and other communications.
It is the Father’s evidence when the Mother and the children obtained Apple devices he already had an Apple account. His account was used when the families’ devices were acquired rather than setting up separate accounts.
It is the Father’s evidence that initially because the devices were all on his account any app that was downloaded by the family would automatically be displayed on all the parties’ devices. However this was changed as X in particular would download various games that neither he nor the Mother were interested in. Accordingly they changed the manner in which they set up the devices so that the downloaded app would only appear on the device of the person who downloaded it.
In paragraph 16 of the Mother’s trial affidavit she lists the apps that she claimed had been downloaded onto her phone by the Father. Each of the alleged downloads and the Father’s response is set out below:-

Alleged Download

Father’s Response

(a)

Cam app 1, Cam app 2 and Web cam app

He is not familiar with these apps. He got a printout from Apple and believes they were downloaded by X.

(b)

App FF

He downloaded this app as a result of his employment with Employer P so he could set up new functionality and then a new web address. It is his evidence he needed a second authentication so that he could enter into their internet page and could access their web page at home.

(c)

App HH

He could not recall ever seeing this app.

(d)

Various internet banking apps (annexed to the Mother’s affidavit were screenshots with NAB Mobile App, a Westpac App, a Bank Q App and an ANZ go money Australia App)

The parties have a Westpac account and an NAB account. It is his evidence the parties have an old ANZ account that was shut down a while ago. He has a Bank Q account.

The Father noted that the screenshots of the app’s on the Mother’s phone that are annexed to the Mother’s affidavit show a “cloud arrow”. It is his evidence this indicates that those apps are not downloaded on the device they are being shown on.
It is the Father’s evidence that he is not able to access the Mother’s phone, her messages, her photos or her emails. He would need to actually have her phone in order to be able to do so.
It is apparent from the Father’s evidence that he managed the family’s IT. He set up the family computers, iPad’s and phones during the relationship. He denies that this was done to control the family’s technology but rather it was just how things were done in their household as he had the requisite skills to do this.
It is the Father’s evidence that he does not believe the Mother when she says that she and Mr E are not in a romantic relationship. He believes the real reason that the Mother wishes to relocate to Melbourne is to pursue her relationship with Mr E and not because she is scared to be in the same town as he is or she feels isolated living in City C.
The Father raises concerns about Mr E’s criminal history and his associates.
In paragraph 52 of his trial affidavit the Father sets out a text message he received from Mr E on 5 May 2021 which reads as follows:-
“Mr Beitel, My my (sic) name is Mr E. Just read your affidavit. Just to clarify things My home address is R Street, Suburb F consider yourself officially notified. Your (sic) more than welcome to come check out my security system. But if you do come uninvited I’ll have you charged with trespass and an IVO taken out. You may think it’s ok to bully and intimidate women and children. I’m not so easy scared. But I suggest you keep your sly allegations to a minimum as you have enough to worry about other than pissing me and Mr S off. Mr E.”
It is the Father’s evidence he believes the reference to “Mr S” in the text message from Mr E is Mr S and was designed to threaten him because he had commenced proceedings in relation to the children.
The Father is also concerned about the Mother’s evidence that she, X, Y and Z were together with Mr E at a birthday dinner for Mr E with Mr T who is apparently a friend of Mr E and a known associate of Mr S.
It is the Father’s evidence that the Mother has many friends in City C with whom she regularly socialises and who provide her with support and assistance. He notes that the Mother can obtain employment in her profession in City C and that there is no need for them to interact professionally given his current duties are not in any way related to those undertaken by the Mother.
When asked to discuss the Mother as a parent, the Father described her as very capable, as loving their children, looking out for them, supporting their friendships and being someone the children turn to for help and who is always there for them to ask help from.
It is the Father’s evidence that he believes the Mother will support his relationship with the children albeit that at the time of separation he was very distressed that she moved to Melbourne with X, Y and Z without telling him and initially made it very hard for him to be able to communicate or spend time with them.
It is the Father’s evidence that whatever the outcome of this case, he will remain in City C as that is where he is settled, has his support base and has secure employment that he enjoys. It is his evidence that he does not have friends or connections in Melbourne.
The Mother
The Mother relies on her trial affidavit filed 12 August 2021. The Mother also gave vive voce evidence at the final hearing.
The Mother also relies on the affidavit of her friend Ms U filed on 12 August 2021. Ms U was not required for cross-examination.
It is the Mother’s evidence that she has always been X, Y and Z’s primary carer. She believes Y and Z in particular will struggle if they do not continue to live in her primary care.
It is the Mother’s evidence that she was the victim of ongoing emotional, verbal and financial violence throughout the relationship. The manner in which the Father managed the parties finances is will set out in this judgment. In addition, it is the Mother’s evidence that the Father put her down and that nothing she did was ever right in his eyes. It is her evidence that he would often be very angry and would yell and scream at her in an aggressive manner, pointing his finger at her face.
Such was the level of tension and unhappiness between the parties, it is the Mother’s evidence that in the latter part of their relationship she would isolate herself in her bedroom when the Father came home from work just to avoid having to interact with him and endure his anger and aggression.
It is the Mother’s evidence that her family, being her parents and sister, live in south-east Melbourne which is where she grew up. She wishes to return to live there as she will have the support of her family as well as the many friends that she still has in that area that she grew up with.
It is the Mother’s evidence that in the short period of time that she, X, Y and Z were in Melbourne in 2021 the children settled in their new schools and were very happy. It is the Mother’s evidence that the children are very familiar with that part of Melbourne as they regularly visit her family and have friends who are the children of her childhood friends.
It is the Mother’s evidence that during the relationship the father had limited involvement with X, Y and Z as he worked very long hours. It is her further evidence that she believes that the children are scared of the Father because of his anger and aggressive behaviour in the home to which they were exposed.
The Mother has obtained a position with Employer W as a healthcare professional working in Department X. It is her evidence that it is a three day a week position that can potentially go to full time. Department X runs from 7am to 7pm Monday to Friday. There are two shifts, the morning shift which runs from 7:00am to 3:30pm and the afternoon shift which runs from 10:30am to 7:00pm. She will be on a rotating shift, working different days and different hours across her roster.
When asked about child care in Melbourne if she were successful in the application, it is the mother’s evidence that the children’s schools have before school care. If she is working the afternoon shift either her Mother who lives in Suburb CC or her sister or brother in law who live in Suburb DD would care for X, Y and Z until she finished work.
In relation to accommodation in Melbourne, it is the Mother’s evidence that Mr E is intending to move to Queensland and that he has offered to allow her to rent his property in Suburb F at a reduced rate. It is the Mother’s evidence that in the long term she intends to buy her own property in the Suburb F area and that she has investigated land and house packages. Those packages are approximately $400,000 which she can afford following the parties’ property settlement. The Mother did note however that she would not be able to make application for finance to purchase her own home until she had been working in her current position for at least 12 months.
In relation to her relationship with Mr E, it is the Mother’s evidence that they were good friends at school and have remained friends in the thirty years since. The Mother denies that she was in any sort of romantic relationship with Mr E when she and the Father separated. She explained that Mr E offered her support and accommodation when she needed to escape a very “aggressive, nasty, toxic and controlling marriage”.
It is the Mother’s evidence that towards late April she and Mr E went out to dinner a few times that she did sleep in his room as they explored the possibility of a romantic relationship. It is her evidence that towards the end of July both she and Mr E had a lengthy discussion and agreed that they were much better as friends than partners and as such agreed that their future relationship should be one of friendship only. The Mother denies that the release of the family report which contains negative observations of Mr E and her relationship with him had anything to do with her evidence that she is no longer in a romantic relationship with Mr E.
The Mother was asked if there was anything positive she could say about the father either as a parent or person. The Mother responded, “all that hits my mind is all that yelling, anger, negativity, never hear anything positive come out of that mouth”. When given an opportunity to further consider her answer the Mother indicated:-
•He takes the kids out to the park;
•Bike riding on the odd occasion with X;
•Will mow the laws – put the bins out;
•Yeah he tries his hardest;
•His decisions aren’t always great with the children but he tries;
•X is the closest to Mr Beitel out of the three (the Mother at all times referred to the Father as Mr Beitel rather than as “Beitel” or “the Father”).
The Mother stated that what most concerns her if the children were to live in the Father’s primary care is his anger would get out of control and he might “snap”. When asked for examples of when the Father had previously “snapped”, the Mother gave evidence there were two occasions when they were arguing and he got so angry he punched himself in the head.
The Mother was asked why, given her reservations as to the Father’s parenting capacity, she has decided that she will move to Melbourne even if the Court orders that X, Y and Z remain in City C with the Father. The Mother told the court that she was “not going to live in City C” and that she was “going to move to Melbourne and start my new job.” She stated that “I would never ever leave my children but at the same time I am unhappy in City C, I am scared, I do not want to live in City C, I don’t want to see him when I shop, go out or go to work”. She stated that whilst her children will always come first she does not “feel comfortable living in that town with him.”
As previously noted in this judgment, Ms U swore an affidavit on 12 August 2021 in support of the Mother’s application. She was not required for cross-examination.
Ms U deposes that she has known the parties since 2016 when their daughters Y and V became school friends. She socialised with both parties at school through pick-ups and drops-offs, playdates, outings and birthday parties.
Ms U deposes she is closer to the Mother as they are both Mothers and would discuss the challenges of balancing work and motherhood. She describes the Mother as an excellent homemaker and parent who regularly had her children over at their home including V.
In relation to the Father, Ms U deposes she had spoken with him and found him to be pleasant.
In relation to her interaction with the parties post separation Ms U deposes to learning that the parties separated in late 2020 and that she was initially surprised by this. Subsequently the Mother disclosed to her that she had been the victim of family violence committed by the Father over several years including emotional and financial abuse which explained the separation.

In relation to the events in 2021 Ms U confirms that when V did not return from school, she contacted the Mother who got back to her to say the Father had taken the children to a cafe in City C. Ms U deposes she texted the Father who immediately called her and explained how Y, V and Z had persuaded him to take them to a shop where he bought them drinks. He explained to her that X had also been in the car with them and wanted to go home so he had driven home to drop X off before returning to pick up the girls but it had taken him longer to return because he had been pulled over by the Police. Ms U deposes the Father apologised and said he would bring V home straight away.
Ms U deposes that the girls were very upset when V was brought home. When V calmed down she explained that the nice idea the girls had planned at school to go to a cafe became such a stressful situation and that she was embarrassed that she had not thought things through properly.
In paragraph 25 to 27 Ms U deposes as follows:-
25.I am very concerned that Mr Beitel left the three girls alone at the mall without any adult supervision. The children were eleven, ten and six years old respectively. The children know how to walk home from school, as we live only four blocks away. However, V did not know how to get home from the mall, and the girls did not have a mobile phone with them. This was very risky.
26.I was also dismayed that Mr Beitel had taken V with him after school without contacting me beforehand. I believe that Mr Beitel should have called me so that I would have known what was going on. I could have also helped if needed.
27.I then texted Mr Beitel about the event saying that I was sorry it had happened. He apologized and said he was most disappointed in himself and in the future would only do activities that are prearranged.
Ms EE
Ms EE is a Regulation 7 Family Consultant. Ms EE prepared a Family Report dated 26 July 2021. Ms EE also gave vive voce evidence at the final hearing.
Ms EE reports that X told her he felt pretty good to be back in City C as he got to see his friends again.
Ms EE further reports that X told her he has “a pretty close” relationship with both parents and that his Father takes him to soccer training and games and also to Melbourne to see soccer games.
When asked about the current arrangements (at the time of the Family Report interviews the children had returned to live in City C and the living arrangements reflected the orders of 28 May 2021) X indicated that maybe one extra day with Dad would be the only change that he would like. When asked if he had a preference about living in City C or Melbourne Ms EE states that he thought briefly and then said “I don’t particularly want to say”.
X told Ms EE that he wasn’t surprised his parents had separated as there were “arguments every now and then”.
Y and Z were interviewed together.
Ms EE reports that when asked about the current arrangements of seeing their Father, Y said that it is “good because we get to do what we want” which included going to the park and eating hot jam donuts. Z told Ms EE she enjoys playing ball game with her Dad.
When asked about the experiences of living in Melbourne, Y told Ms EE that she “went with it” and that she had liked the experience of living in Melbourne and had made a few friends who also played online game 1.
When Z was responding to this question, Ms EE notes that at first she didn’t know and then told her she liked it because they “got some new toys”.
In paragraph 58 of her Report Ms EE says that the girls were asked how they felt when the Court said they had to return to live in City C. She reports that Y said “I was kind of sad, but kind of happy going to see Dad ‘cause we hadn’t seen him in four weeks. X and Z started crying. Mum took a video”.
In relation to living in City C, Y said it feels “pretty good ‘cause I get to see my friends and catch up on work. I get to see everyone that we haven’t seen, do things we haven’t done.” Z reported she feels “kind of happy. I get to see my teacher and my friends”.
When asked about their preference for living in City C or Melbourne, Y told Ms EE that she preferred to live in Melbourne “but only if I could see a lot of my City C friends”. Z also stated a preference for Melbourne saying she would also like to see a lot of her friends from City C and Melbourne.
In paragraphs 67 to 69 of her Report Ms EE sets out her assessments of X, Y and Z as follows:-
67. X is an adolescent boy who is an average student academically. Congruent with his developmental stage, he has developed an interest in spending time with his friends and socialising, as a preference to spending time with his parents. X is not willing to express his preference pertaining to where he wants to live, congruent with his stage of development and the family dynamics. X is demonstrating his awareness of the conflict between the parents, and their positional stance, and perhaps his awareness of how one of them might feel if he expresses a preference for the other’s choice. In other words, X is caught up in a loyalty conflict between his parents. X, however, stated a clear preference for spending more time with his father, which could not be achieved if he was living in Melbourne. Given his stage of development and his preference for peer relationships, it is hard to imagine that X did not feel disrupted by a sudden move to Melbourne, which effectively changed many of his life circumstances. Mr Beitel talked about X’s long-standing core group of friends with whom it is likely he felt strong emotions about being separated from. It is possible he was not “permitted” to express these emotions, given his mother’s obvious preference for the move.
68. Y is a primary school child, who is demonstrating an awareness of personal changes in her life (discussions with mother about puberty). Described by both parents as the quiet one, Y was more forthcoming than X in talking about her experience of the parental relationship and the relocation. It appears that she was somewhat adaptable to her new environment, however, clearly missed her friends in City C. Although she expressed a preference for living in Melbourne, she attached a proviso to this pertaining to still being able to see a lot of her City C friends. This would not be a possibility, and is indicative of Y’s stage of development, in that she is unable to analyse all aspects of a complex problem. Hence, her preference cannot be accorded significant weight. Her preference, in layman’s terms, demonstrates that she would like her cake and to eat it too. Her statement indicates that she has an attachment to her City C friends and that she was impacted by being separated from them.
69. Z is a bright young girl who her father describes as feisty. In the assessment scenario, she was reliant on Y to feel confident to attend, but she did not appear to be overly influenced by Y’s responses. Her responses at interview are indicative of her stage of development, for example, one of the things she liked about moving to Melbourne was having new toys. Like Y, she does not have the cognitive capacity to weigh all aspects of complex decision-making. It is impossible for a child of Z’s age to foresee all possible future outcomes of a relocation to Melbourne, therefore, her expressed preference cannot be accorded any weight. It is likely influenced by her mother’s preference. More so than the other children, a child of Z’s stage of development requires consistency and stability.
Ms EE states in paragraph 70 of her report that the children clearly have a warm and loving relationship with both parents and there was “nothing to suggest negativity attached to either relationship.” She states “the negativity pertained to the parental conflict and arguments.” She noted the parental separation is relatively new to the children and they will still be adjusting to it.
In paragraph 75 of her report Ms EE states that the Mother’s preference for living in Melbourne is understandable from her (the Mother’s) perspective as the parental relationship was becoming harder for her to manage emotionally and she sought to escape. Ms EE then states “however the way in which this was implemented did not appear to prioritise the children’s best interests. She sought to separate amicably from Mr Beitel, however, made a unilateral decision to relocate with the children, facilitated little time between them and their father (by phone only) and commenced a new relationship.”
Ms EE discussed the issue of relocation in paragraphs 79 and 80:-
79. There does not appear to be a significant advantage for the children in moving to Melbourne. The disadvantages include a third move, if this is what is decided; being separated from their friends, which appears to be significant for X and Y; and being further away from their father. The expectation that they move from a home with their mother and father, immediately into a home where their mother has a new partner, would seem to lack significant insight into the children’s feelings. Children experience grief when there is a parental separation and, to expose them to a new partner when they are in the midst of this grief, seems rather callous. Children grief differently to adults and their grief is often not obvious. Additionally, the children probably sought to hide their emotions from their mother.
80. In regard to the children’s relationship with their father, living in Melbourne would negate an equal time arrangement, as Mr Beitel has proposed, as well as any increases in time. That is, due to the geographical distance, the children would need to be primarily living with one parent or the other. A relocation also negates any incidental time, such as that which Ms Beitel proposed when the children had a curriculum day, or opportunities for time after school, for school events and so on. X, in particular, is interested in sports and, if he is to play team sports, having a fortnightly arrangement is disruptive to engaging in a team sport, if not impossible. A scenario could be foreseen where X misses his City C friends and school, and seeks to live with his father, leading to a possible family situation of siblings being separated. During the six weeks the children were in Melbourne, Ms Beitel did not facilitate time with their father, apart from a few phone calls, therefore, her willingness to cooperate is untested.
When giving her vive voce evidence Ms EE was asked to comment on the Mother’s decision at the time of separation to move with X, Y and Z to Melbourne and to the home of Mr E, someone not well-known to them, rather than making arrangements for temporary accommodation in City C and thereby causing much less disruption to the children. Ms EE commented:-
“I think that also is a very concerning point. I think it did stem from where – what Ms Beitel was feeling… she was desperately unhappy, and desperate to get out of that situation, and so, I can only imagine that perhaps in that emotional state, she was thinking of her own needs, and not thinking about the children’s needs, unfortunately. So my understanding was that she was just out of there and the children didn’t get a chance to say goodbye to their friends or their father, or… in a six-week period, there were only, I think, maybe a couple of phone calls to Dad, so that’s – that is concerning.”
Counsel for the Mother put to Ms EE the evidence of the Mother in relation to the circumstances that led to her moving to Melbourne and suggested that in that moment the Mother had reached her breaking point and therefore it was not inappropriate for the Mother to grab the life raft that was immediately available to her at that time. Ms EE responded:-
“It was in no way a child-focused decision… even hearing the background of it… I can’t say that it was in any way of a child-focused decision. I still understand the – the level of distress of – of the mother… there still could have been a – a moving out of the house, if that’s what she wanted to do, and taking the children and relocating to somewhere closer. Or there could have been a – maybe going down to Melbourne but going for a week, if – if that’s what she felt she needed to do, and then coming back and… putting the children back into school where they’re comfortable and… that sort of thing. But to – to move and say that this is a permanent move, and, “This is where we’re going to live and this is, you know, your new step-dad”, or – or whatever the scenario was… I just couldn’t say in any way that that was a child-focused decision”
Ms EE was shown Mr E’s criminal history as his subpoenaed Victoria Police records had been tendered into evidence. Ms EE was also told of the Mother’s evidence that she was moving to Melbourne no matter what the outcome of these proceedings were. Ms EE was asked that as the ideal outcome for X, Y and Z that their care be shared by their parents in City C was no longer an option, and therefore the only choices available to the Court were either for X, Y and Z live in City C with the Father or in Melbourne with the Mother, did she have a preference as to what the outcome should be? Ms EE responded:-
“Given the additional information that I have been provided with, I think the risk to the children might be too great if they were living in Melbourne with their mother, particularly as it seems like she is not accepting that risk herself, so I would have to say that I would be leaning towards the children being in City C with their father.”
It was suggested to Ms EE that the “tipping point” for her expressing a preference for the children to remain in City C with the Father was her concern about the Mother’s relationship with Mr E. Ms EE responded “yes”. She was then asked “were it not for the Mr E connection might her recommendation have gone the other way?” Ms EE responded:-
“It could be the case that without that tipping point, I may have put it to her Honour to make the decision, but let me just think about it. I still think that – probably in particular for X, I would think that moving to Melbourne would be too great a disruption for him, because he – I mean, he is an adolescent, he has that core group of friends that he has had all the way through school, he’s quite settled. I would think he would be the one, really, that would be most affected by the move, although he didn’t want to talk about that, really, himself, he didn’t want to talk about anything, but that’s where he’s at. And given that – I certainly wouldn’t suggest separating the siblings at all. I think, on balance, I would – if it was me having to make the decision, or having to make a call, I think, on balance, I would still say City C with the father. I think it just offers that stability and consistency, and it’s not another move – they’ve already had two moves. It’s not another move back to another school.”
Ms EE’s evidence was summarised back to her in the following terms
“I understood your evidence to me to be, Ms EE… even absent Mr E, on balance – and it’s very fine balance… because of X being an adolescent male, and the one thing that is not viable is for these siblings to be separated – City C offers greater stability and consistency in the schools they know, the community they’ve grown up with, the friendships that they have there and… other social connections that tie them to that town and give them a sense of self in the maelstrom of their parents’ very, very recent separation.”
Ms EE responded “yes”.
It was then put to Ms EE:-
“The next factor is the needs of X as a 13 year old boy, and balancing… the needs of his sisters as 10 year old girl starting to enter puberty and little Z, who is only six years old. You’re saying that the needs of X probably outweigh the needs of the girls to continue in the care of their primary carer mother?”
Ms EE responded:-
“No. Not that his needs outweigh their needs… his need to be in City C would be the strongest, I think, but the girls, I think, still also need to be in City C… of course there’s also that problem of separating them from their mother which I think would be a little easier for X. For the girls that would be more of an issue, being separated from their mother, but I still think that being in City C it just offers more consistency and stability.”
Ms EE was asked:-
“In the hierarchy of relationships, and I’m talking from a psychologist perspective here, is not the most significant relationship to a child the relationship with their primary carer?”
Ms EE responded as follows:-
“Yes, when they’re really young. When they’re – when they get to sort of preschool and early primary school years, they’ve started to develop lots of what we would call secondary attachments, which are all – you know, all the other important attachments in their lives, and yes, when they’re, you know, four, five, six, they still probably have a preference for being with their primary carer, but they are also able to spend, you know, various amounts of time with their secondary carers, whether they be grandparents or aunties and uncles, fathers, including overnight time, so by the time they get to adolescence, their – you know, their important people in their lives generally move towards being their peer group. But, of course, parents are still important, but they don’t like to tell you that. So yes, they’ve got primary attachments and secondary attachments.”
Ms EE agreed with the proposal that the older a child, the more likely they are able to hold on to the meaningfulness of the relationship between themselves and the parent they are not living with.
Ms EE was then asked to consider the capacity of each of the children to manage their relationship with their distant parent. She agreed that X would be able to cope. When discussing the girls, Ms EE made the following observations:-
“So Y – it’s going to be a little bit harder for her. With – I guess with either parent. I mean, the thing, obviously, with children from separated families is that when they’re with one parent, they’re going to be missing the other parent, so that’s just a given. If we’re talking about residing with their father and spending time with their mum, then it’s going to be a bigger adjustment, I guess, for Y, and I think it would be quite a struggle for Miata. I think she’s definitely the one that’s very close to her – I mean, they’re all close to their mum, but yes, she is the younger one who would definitely have that preference for spending the most of the time with her primary carer. She’s only little, really, so it would be quite an adjustment for her.”
The cafe incident was explained to Ms EE and she was asked whether that indicated the Father had a long way to go in terms of understanding age-appropriate parenting for the children. Ms EE responded:-
“Not necessarily, because it seems… that he learned pretty quickly from that experience, so I guess – look, all children do, you know, tend to push the boundaries, and certainly in separated families, they do try and play one parent off against the other, and so, that sounds like that’s what has occurred in this situation, but it sounds like… Dad has taken on board that – that that’s what happened, and he’s not going to repeat that experience… or the way he responded to that.”
At the end of her vive voce evidence Ms EE agreed that the best outcome for X, Y and Z is they be able to spend significant and substantial time with both their parents and this is not possible in this case because of the decision each of their parents have made about where they will live. It was put to Ms EE that whatever the Court decides will not be a terrific outcome for these children. Ms EE responded “No. I don’t think so. I don’t envy you, your Honour.”
THE LAW
In this matter the Mother is seeking to relocate with the parties’ three children, X (13), Y (11) and Z (7) from City C to Melbourne.
Whilst relocation cases are often discussed as if they form a discreet subset of parenting cases that should somehow be determined differently to other parenting matters, the jurisprudence makes it clear that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is, by following the legislative framework prescribed under the Family Law Act1975 (Cth) (the “Act”) to determine what orders are in the child’s best interest.

The Full Court in Taylor v Barker [2007] 37 Fam FLR 461 at 475, held:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
The Act does not address the concept of relocation. However, over time the superior courts have set out a number of principles to assist Judges when they are dealing with parenting matters where relocation is in issue. In paragraph [44] of Fyfe v Kingsley [2020] FCCA 1535, Judge McGuire (as he then was) summarised those principles as follows:
(a)Relocation matters are to be determined generally in accordance with Part VII of the Act and within the context of making the necessary findings relevant to children's best interests with reference to the factors in s.60CC of the Act but also within the context of s.65DAA considerations of equal time or 'substantial and significant time' and ‘reasonable practicability’;
(b) The child's best interests remain the paramount but not the sole consideration;
(c)Neither party bears an onus to establish that the relocation or a continuation of an existing regime will best promote the interests of the child;
(d)An applicant for relocation need not show 'compelling reasons' in support of the relocation but must, in my view, give or adduce probative evidence which permits the Court, on balance, to find that a parenting order which involves a relocation of a child is in that child's best interest;
(e)The child's best interest must be weighed and balanced with the open 'right' of a parent’s freedom of movement but such right must ultimately defer to the child's best interest;
(f)The Court must consider the advantages and disadvantages of each of the parent’s proposals including the proposed relocation and may, if required, formulate proposals itself in the best interests of the child.
Best Interests of the Child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)       parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)       to maintain a connection with that culture; and
(b)       to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)       to develop a positive appreciation of that culture.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in s.60CC(2) and s.60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC (2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph [104] reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104 His Honour considered s.60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s60CC(2)(a) is that the Court should 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 (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;
(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.”
X, Y and Z have a close and loving relationship with both their parents. Whilst the Mother alleges the children are not close to their Father and are fearful of him, that is not borne out at all in the evidence before the Court. When speaking with the Family Consultant for the purposes of the s.11F Child Inclusive Conference and again with the Family Report Writer Ms EE all three children were quite clear that they love both their parents and that from their perspective both were an active part in their care whilst the parties were together.
On somewhat “traditional” lines, it would appear that X is closer to his Father than are his sisters and likewise Y, and Z in particular, are more attached to their Mother who, given their younger ages, is acknowledged to be their primary carer.
Because of the Mother’s decision that whatever the outcome of this case is she will be moving to Melbourne, it is not possible for the non-resident parent to have the level of involvement in the children’s day to day lives than they would otherwise have if their parents were separated but geographically proximate. All three children, but in particular the younger two will struggle to deal with the separation and lack of time they are able to spend with the parent they are not living with in this circumstance.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence
Whilst the Mother alleges the children are fearful of their Father as a result of the anger he displayed towards her in the relationship and that he might “snap” if the children were to make him angry, that is not the children’s perception of their Father at all.
The Mother was also at pains to highlight the risk at which the Father placed Y, Z and Y’s friend Ava when he left them alone to have bubble tea in the City C CBD whilst he took X home.
It is apparent from the evidence that Y and V did a bit of a “con job” on the Father in persuading him it was okay for them to have bubble tea as it was something the Mother had allowed them to do the day before. He readily acknowledged that he had erred in not checking with Ava’s mother before proceeding to take the girls to the cafe. He indicated that in the future he would ensure that any arrangements for the children were pre-arranged and were approved and accepted by himself and the parents of any of the children’s friends.
When the Father realised what had occurred, he accepted responsibility for this and immediately apologised to V’s mother. He was understandably annoyed with and disappointed in Y for misleading him, as most parents would have been in this situation.
During the parties’ relationship the Mother regularly left X, Y and Z in the Father’s sole care. She raises no concerns about his parenting during those times. It is noted that a week after the Mother told the Father she wished to separate she happily let him take all three children to visit his family in Adelaide for four or five days whilst she spent time with Mr E in Queensland.
I am more than satisfied that neither parent poses a risk to X, Y and Z.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in X, Y and Z’s best interests.
Each of the matters under this section will be considered in turn where applicable to this matter.
Section 60CC(3)(a) 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
X was not prepared to express a view to Ms EE about where he wants to live. Ms EE noted in her Family Report that X was demonstrating his awareness of the conflict between the parents, their positional stance and perhaps his awareness of how one might feel if he expressed a preference for the others’ choice. Ms EE did note however that X stated a clear preference for spending more time with his Father, something he could not do if he lived in Melbourne.
Y told Ms EE that she would like to live in Melbourne though attached a proviso that she still wanted to be able to see a lot of her City C friends. In her Family Report Ms EE notes that this would not be a possibility and is indicative of Y’s stage of development and her inability to analyse all aspects of a complex problem. Ms EE opined that Y’s preference cannot be accorded significant weight as it demonstrates that she would like “to have her cake and eat it too.”
Ms EE noted that Z’s responses in interview were indicative of her stage of development citing by example that one of the things Z liked about moving to Melbourne was having new toys. Ms EE states that like Y, Z does not have the cognitive capacity to weigh up all aspects of complex decision-making and that it would be impossible for a child of Z’s age to foresee all possible future outcomes of a relocation to Melbourne. Ms EE states that Z’s expressed preference cannot be accorded any weight and is likely to have been influenced by her Mother’s preference.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparents or other relative of the child)
Ms EE observes X, Y and Z to clearly have a warm and loving relationship with both parents with there being nothing to suggest negativity attached to either relationship.
Both parties agree X has a very close relationship with his Father. Y and particularly Z have their primary attachment with their Mother which is both age and developmentally appropriate.
Whilst the Mother challenges the closeness of the children’s relationship with their Father, that is not borne out by X, Y and Z in their comments to both the s.11F Family Consultant and the Report Writer Ms EE.
The Mother’s parents and sister live in south-east Melbourne and have been a regular part of the children’s lives with the maternal grandparents visiting them in City C and there being return visits to Melbourne.
The Father’s mother lives in Town FF and his father lives in Adelaide. Again there is evidence of the extended family visiting City C and the Father visiting his family with the children in their various locations.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity:
(i)         to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child
Not relevant.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
Not relevant.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his parents; or
(ii) any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living
Given the Mother’s evidence that she will relocate to Melbourne and the Father’s evidence that he will remain in City C whatever the decision of this Court, there must as a matter of necessity be a significant change in X, Y and Z’s living circumstances given the distance between City C and south-east Melbourne.
Whichever parent X, Y and Z primarily live with, they will struggle with the lack of involvement of the other parent in their day to day lives.
Given X’s age and developmental requirements, a move to Melbourne for him and the resulting separation from his Father with whom he has a very close relationship and from his peer group will be very difficult for him to manage.
Y and Z too will struggle if they move to Melbourne with the lack of involvement with their Father and with the friends they have as a result of living the entirety of their lives in City C.
If they remain in City C, X, Y and Z will clearly struggle with the limited amount of time they will be able to spend with their Mother. Ms EE notes that Z in particular will struggle with the separation from her Mother given her relatively young age and that it is with her Mother that she has her current primary attachment.
When giving her vive voce evidence, Ms EE made the following observations of the adjustments Z would need to make if she were to remain in City C:-
“It’s hard to say what might happen, but I think it would certainly be an adjustment initially. It depends on… how both parents manage the situation, so if both can manage the situation in a way that limits the children’s exposure to their conflict, that is something that’s going to help them. If their father can really keep reassuring the children about their relationship with their mother and allow them, you know, access to their mother when they want to call her, that’s really going to assist as well. If he can talk to them about their mum, rather than just have her as a subject that we don’t talk about in the home, that’s going to be helpful, if he can keep talking about their mother in a positive manner. There are good ways of dealing with it and not so good ways of dealing with it.”
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties are in agreement with what the arrangements are to be for the time that X, Y and Z will spend with the parent they are not living with. They will spend alternate weekends, school holidays, Mother’s Day or Father’s Day and Christmas with that parent.
To their credit, the parties agree to a midway changeover point so that travel is shared equally between them. Whilst there is some two and a half to three hours between City C and where the Mother proposes to live, the distance and travel time is not so onerous that it will prevent alternate weekend time taking place. The children may however become resentful if this arrangement means they are going to miss out on any regular weekend sporting commitments that they might have. This is something that the parties will need to sensitively and appropriately manage.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs

I am satisfied that both parties are good parents who have met, and will continue to meet, the practical, emotional, intellectual and developmental needs of their children.
Where they have let X, Y and Z down has been continuing to live in a toxic and highly conflicted relationship for far too long, thereby exposing their children to their conflict. It is telling that both X and Y were not at all surprised their parents had separated given the level of their arguing and the extraordinary tension that existed in the home, particularly in the last four years leading up to separation.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
Not relevant.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
The Mother and therefore X, Y and Z are of Aboriginal descent. In the Mother’s trial affidavit she deposes at paragraph 11 that she wishes to support the children’s understanding of their Aboriginal heritage. She notes she has taken them to places important to Aboriginal culture, bought books for them to read and also keeps Aboriginal artefacts around the house.
In paragraph 71 of Ms EE’s Family Report, Ms EE comments that:-
The children have an Aboriginal heritage. Ms Beitel clearly has some attachment to it, while not being immersed in its culture. The children will benefit from her continued promotion of culture and it would be an important journey for all to discover together more about their ancestry, history, specific customs and traditions.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties in this matter are responsible, caring and devoted parents.
However, in unilaterally moving X, Y and Z to Melbourne at separation and immediately enrolling them in new schools, taking them to the home of a man not well-known to them with a questionable criminal history and giving them no opportunity to spend time with their Father, let alone say goodbye to him and their friends at school was, as noted by Ms EE, not a child-focused decision by the Mother.
The Mother had a number of options available to her when she advised the Father that the marriage was at an end and the Father would not leave the former matrimonial home. She was in a position to seek financial assistance from her family to reaccommodate herself, X, Y and Z in City C until she and the Father were able to resolve financial matters between themselves.
If the Father was behaving as aggressively as she describes, the Mother could have made application in the State Courts for an intervention order seeking the Father be removed from the former matrimonial home.
The friends who have come to her assistance and provided accommodation to her in City C after the sale of the former matrimonial home could have presumably been approached at the time of separation.
It is the Mother’s evidence that she does not like to ask people for help. However she seems to have had no difficulty in asking Mr E for his help.
There is no doubt about the extraordinarily unhappy state of the parties’ relationship and the extreme tensions in the household between the parties, particularly after the Mother advised the Father of her wish to separate, were extraordinarily difficult. The parties had been living in a toxic atmosphere on their own evidence for many years. The Mother’s decision to flee to Melbourne was in fact all about her and her unhappiness and showed very little consideration for the impact on X, Y and Z of that decision. X, Y and Z had not had any opportunity to adjust to the news their parents were separating. They were rudely removed from everything that would have been familiar and comforting to them during this extraordinarily difficult time. It was a selfish, self-focused decision and whilst not reflective of the usually exemplary parenting of the Mother, did not reflect well on her at all.
As Ms EE opined, there would be a real concern if there were to be a continuation of that kind of parenting by the Mother in the future.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)         the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)       any findings made by the court in, or in proceedings for, the   order;
(v)        any other relevant matter
The allegations of violence each party makes against the other are well set out in this judgment.
The Mother accuses the Father of being emotionally, verbally and financially controlling throughout the entirety of the relationship. She describes him as being demeaning of her and she not being able to do anything that was good enough for him.
The Father similarly accuses the Mother of being controlling and demeaning of him and that there was nothing that he could do that was ever right in her eyes.
The manner in which the Father managed the family’s finances is well set out in this judgment. The Father believes that he was appropriately managing the parties’ finances to ensure that their regular financial commitments were met. The Mother found this method of management to be controlling and demeaning of her. Both parties are right.
What is apparent is that this marriage was intensely unhappy and both parties, and probably their children, would have been much better off if the parties had separated before things became so toxic and unbearable for both of them.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Were it not for the Mother’s wish to relocate to Melbourne, it is quite probable that these parties would have been able to resolve both property and parenting matters without the need for a decision of the Court.
They were able to resolve financial matters sensibly and quickly at the Conciliation Conference. It is not unreasonable to expect that parenting matters too were capable of resolution, possibly with the assistance of a mediator skilled in children’s matters.
It is expected that with the resolution of this issue the parties’ need to resort to litigation will cease.
Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant
The parties are in agreement as to the time X, Y and Z are to spend with the parent they are not living with.
If the parties were to live in the same city the Father seeks a shared care regime. It is unknown what the Mother’s proposals are in the event that should occur.
Presumption of Equal Shared Parental Responsibility and the Consideration of Equal or Substantial and Significant Time
The Full Court in the matter of Taylor v Barker (supra) stated at paragraph [60]:
In our view his honour dealt with the relocation proposed in the context of his consideration of section 60CC and section 60DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should be considered and evaluated, so far as possible in the context of the making of the necessary findings in relation to the relevant s60C matters; however…such a proposal now also needs to be considered in the context of s60DAA.
Section 61DAA of the Act provides that 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 for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
In this matter both parties are in agreement that orders should be made that they have equal shared parental responsibility for X, Y and Z.
Whilst these parties’ highly conflicted and toxic relationship has been well-discussed in this judgment, they were able to work together and co-parented their children sensibly prior to separation. There is no reason to believe that they are not capable of continuing to do so now that they are separated, especially with the finalisation of this matter. Accordingly it is appropriate that there be an order for the parties to have equal shared parental responsibility for X, Y and Z.
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65DAA(1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sections 65DAA(2) and (3) of the Act provide as follows:
2.        If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; the court must:
(i)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(ii)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(iii)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
In the matter of MRR v GR [2010] HCA 4, the High Court considered the interrelationship between s.60CA, s.61DA(1) and s.65DAA of the Act.
In MRR v GR (supra), the High Court held at paragraph [9]:
“Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", [i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.”
The High Court then held at paragraph [13]:
“Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court further held at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
Thus, the Court must consider not only whether it is in the child’s best interests to spend equal or significant and substantial time with each of their parents but also whether it is reasonably practicable for the child to do so.
Given the Mother’s evidence that she will relocate to Melbourne and the Father’s evidence that he will remain in City C no matter where X, Y and Z primarily live, it is apparent that it is not practicable to make orders for them to spend equal time or significant and substantial time as defined by the Act with both their parents.
CONCLUSION
Because X, Y and Z’s parents are going to live at least two and a half hours apart, whatever is decided by the Court will not be what is best for them, which would be for both of their parents to live sufficiently proximate to each other so they are able to be actively involved in the day to day care of their children.
The parents in this matter had an unhappy, toxic, highly conflicted last four years of their marriage. Unfortunately they let their marriage go on far too long. By the time separation occurred they had not shared a bed for four years, they were constantly arguing, the Mother would remove herself to her bedroom when the Father came home in order to avoid him and their arguments, the Father would follow the Mother to her bedroom in order to pursue their “discussions”. Most concernedly the parties did not shield X, Y and Z from their unhappiness. This is perhaps best evidenced by both X and Y telling the report writer that they weren’t surprised that their parents had separated.
In early April this year the Mother told the Father that she wished to separate. It is her evidence that she did so as the Fathers controlling behaviour had just got too much. The Father’s evidence is she told him she was developing feelings for another man and from that he concluded she wanted to separate. The Mother asked the Father to move out and he said they needed to sort out financial and parenting arrangements before he did.
In mid-April the Father took X, Y and Z for a four or five day holiday to visit his family in Adelaide whilst the Mother, who told X she was in Melbourne, actually spent a night with Mr E in the Hotel GG before they went to Queensland together for a few days during which time they shared a room.
Without telling the Father, in April 2021, the Mother arranged for her pay to be deposited into her own bank account rather than into the joint account from which the parties’ mortgage and other expenses were paid. Not surprisingly, given the Father’s strict management of the parties’ finances, this created a flash point between the parties and some very heated arguments thereafter ensued. During one of those arguments the Mother was on the phone with Mr E who was sufficiently concerned about the Father’s anger to volunteer to drive from Melbourne and collect the Mother. She told him that was not necessary noting that the children were asleep in bed.
The next morning the Father left for work and unbeknownst to him the Mother, X, Y and Z travelled to Melbourne to the home of Mr E in Suburb F. The Mother then texted the Father saying she had gone to Melbourne with the children for a few days to recharge. She subsequently texted him saying that she was looking at schools for the children in Melbourne. The Father immediately responded advising the Mother that he did not agree with her relocating from City C with the children. A letter from the Father’s solicitor shortly followed confirming the Father’s instructions that he didn’t agree to relocation. What thereinafter ensued is well set out in this judgment.
At the commencement of this hearing, the Mother advised the Court that whatever decision is made she will move to Melbourne even if that means X, Y and Z remain living in City C with the Father.
It is the Mother’s evidence that she is intensely unhappy in City C. She is scared, she doesn’t want to live there, she doesn’t want to work there, and she doesn’t want to see the Father or face the prospect of seeing the Father when she is at the shops, down the street, undertaking activities or going about her day to day life.
Both parties were employed by Employer CC. It is the Mother’s evidence that if she remained in City C she would have to return to work with Employer CC and therefore can’t avoid the Father when at work as they would in all likelihood run into each other as they went about their daily employment.
The Mother grew up in Melbourne. It is the Mother’s evidence that her family and her long term friends are all based in Melbourne and she wants to return to live there so she has the support of her family and friends.

The Mother has obtained a position at Employer W and she is quite adamant that she will take up this job.
It is the Father’s evidence that he will remain in City C as that is where he has friends, employment and his support base, something that is not available to him in Melbourne.
X, Y and Z were born in City C and that is the only home that they have known. They all attend school in City C, their friends and extra-curricular activities are all City C based and it is their community.
It is the Mother’s evidence that for the short time that X, Y and Z were in school in Melbourne they settled in well and were quite happy and were starting to make friends. She is very much of the view that they would settle happily if they were to return to Melbourne to live with her in the Suburb F area.
It is the Mother’s further evidence that X, Y and Z have a positive relationship with her family in Melbourne and that they know her Melbourne based friends and their families. They therefore already have a support base in that area.
The Mother argues that she is X, Y and Z’s primary carer and it cannot be seen to be in their best interests, and particularly in Y and Z’s best interests, to not continue to live in her primary care.
The Mother questions the Father’s parenting capacity. It is her evidence that the Father would work up to six days a week during the relationship and that his level of involvement with the children was significantly less than her own. She therefore questions both his capacity and his availability to care for X, Y and Z on a full-time basis. She also raises concerns about his anger and his controlling behaviours that were directed towards her throughout the entirety of their relationship. She is concerned that those behaviours will be redirected towards the children if they are constantly with him.
It is the Mother’s evidence that her long term plans are to purchase her own home in the Suburb F area as this is financially viable for her given the parties’ recent property settlement. She gave evidence she has looked at house/land packages but she will not be able to make application for finance until she has been in her position at Employer W for at least 12 months. This means that any prospect of her owning her own home is two years away.
It is the Mother’s evidence that in the interim Mr E has offered to rent his home to her at a reduced rate or she can otherwise look at alternative rental accommodation independently of Mr E in the Suburb F area.
The Mother’s evidence that her romantic relationship with Mr E did not commence until the end of April 2021 is not accepted. It is apparent from the Mother’s evidence that she and Mr E were exploring the possibility of a romantic relationship by early April at the very latest given her statement to the Father in early April she was having feelings for another man and the trip she and Mr E made whilst the Father, X, Y and Z were in Adelaide. The Mother is not criticised for this but it was not necessary for her to be so coy about this when giving her evidence.
It is the Mother’s evidence that the romantic relationship between she and Mr E came to nothing as she and Mr E realised they were better suited to be friends. It is the Mother’s further evidence that Mr E is moving to Queensland to live in the near future.
The Father’s evidence is that he was always a hands on Father actively involved in the care of X, Y and Z, picking them up from school every Wednesday, taking all three children to extra-curricular activities, taking them on camping trips. He was otherwise actively involved in their day to day lives. In their discussions with both the s.11 F Family Consultant and the Report Writer X, Y and Z confirmed they have a close and loving relationship with their Father and that he was and is an active part of their lives.
X and Y reported regular arguments between their parents but they did not observe one parent to be the aggressor. Their observations were of both parents arguing with the other.
The Mother’s evidence that X, Y and Z are fearful of their Father was not borne out in the discussions that they had with the 11F Family Consultant and the Report Writer. Ms EE describes the children as having a warm and loving relationship with both parents and that there was nothing to suggest negativity attached to either relationship.
The Mother is in no way criticised for the decision she has made that in order for her own happiness and well-being and to have support of her family and long-term friendship group, she needs to live in Melbourne.
Likewise, the Father is not criticised for his decision that he is remaining in City C where he is established, has a job that he loves and where his friendship support base exists.
As was set out in the opening paragraph of this conclusion, the options available to the Court for X, Y and Z’s living arrangements are not what would be best for them. What is best for them is to have both their parents live in City C so that both can be significantly involved in all aspects of their lives and where they could continue to be secure and safe in the community that they have grown up in, attending the schools where they know their teachers and fellow students, continuing their relationships with their very good friends and continuing the activities in which they have been engaged all their lives.
The evidence before the court is that X in particular has a close relationship with his Father. Because he is a 13 year old adolescent teenager, the importance of his peer group and relationships are such that he would clearly be better served if he were to stay in City C living with his Father.
The evidence is also clear that the circumstances for Y and Z is somewhat different to that of their older brother. Because they are younger, developmentally their reliance upon their primary carer is that much more important and whilst their friendships are very important to them they are not as yet quite as important as they are to X.
When considering the competing needs of X, Y and Z, Ms EE concluded that on balance she is of the view that the positive relationship that they have with their Father combined with the stability of continuing to live in the community in which they have always lived, staying at the schools that they have always attended and being able to continue the friendships and activities that they have always known would better meet their needs and be in their best interests as compared to the disruption to them of not being able to spend significant and substantial time with their Father and losing the security and safety of their well-known safety net if they move to Melbourne with their Mother. For these reasons Ms EE expressed the opinion that the “least worst outcome” for X, Y and Z would be to remain living in City C with their Father and spending time with their Mother as has been agreed between the parties.
This is an extraordinarily difficult decision that is made even more so because of the different ages and developmental stages of each of the three children. What is perhaps the best outcome for X and possibly Y is less so for Z and what is perhaps the best decision for Z is not necessarily the best outcome for X and possibly Y.
What is agreed by both parties and the experts is that the sibling group must stay together.
There is some uncertainty in relation to the Mother’s short to medium term plans in Melbourne. Whilst it is her evidence that she is no longer in a romantic relationship with Mr E, her evidence was less than convincing in that regard. She continues to live in his home, she returns to his home every weekend and the timing of the supposed end of their relationship coinciding with the release of the Family Report that was critical of that relationship has to raise some questions about the alleged end of their romantic relationship. Having said that, the Mother is entitled to have a relationship with Mr E if she so chooses albeit there are questions about his associates and criminal history and therefore whether he is someone appropriate for X, Y and Z to live with if they were to live primarily with the Mother in Melbourne.
Whilst the Mother has plans to buy her own home in Melbourne, it is her evidence that she is not eligible for finance until she has been in her new position at Employer W for at least 12 months. It is her evidence she can remain living in Mr E home including as his tenant when he moves to Queensland. There is no evidence however when Mr E is actually moving to Queensland which raises the prospect of X, Y and Z living with Mr E for some time.
There are also questions in relation to how the Mother will support herself, X, Y and Z if they were to live with her in Melbourne if she is only working three days a week. If the Mother is able to obtain full-time employment which she indicates may be possible with her new position, the care of X, Y and Z becomes a question as on her evidence her sister and brother-in-law both work full time and her parents’ health is poor.
The Father’s capacity to care for X, Y and Z on a full-time basis is unknown. He too will need to put in place arrangements for before and after school care, particularly for Y and Z. It is his evidence that he is able to work 9:00am to 3:00pm and from home in order to accommodate the children’s care.
Having considered the parties’ evidence and the evidence of Ms EE, I have on balance determined that the best interests of X, Y and Z are met by them living with their Father in City C where they will have not only the support of their Father but the safety, security and continuity of the schools, friendship groups and the community that they have known and thrived in all their lives.
There is no doubt that X and particularly Y and Z will struggle as a result of the limited time they will be able to spend with their Mother. It will be vitally important that both parents ensure that they work together to provide the support and love that all three children will need to adjust to this new arrangement. The parties are encouraged to engage professional supports both for the children, and themselves if necessary, to make this transition operate as smoothly and as well as it possibly can.

I certify that the preceding two hundred and twenty-six (226) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.
Associate:
Dated: 13 October 2021

File number(s):	MLC 4973 of 2021
Judgment of:	JUDGE BENDER
Date of judgment:	13 October 2021
Catchwords:	FAMILY LAW – PARENTING – RELOCATION – the Mother seeks to relocate the residence of the parties’ three children aged 13, 11 and 7 to Melbourne from City C – the Mother maintains she will relocate to Melbourne regardless of what orders are made – the Father maintains he will stay in City C regardless of what orders are made – the Father proposes that it is in the children’s best interests to remain living in City C – the parties agree that the children should spend alternate weekends, most school holidays and special occasions with the parent they are not living with HELD – the children remain living in City C with the Father – the children spend time with the Mother on alternate weekends, for most of school holidays and on special occasions
Legislation:	Family Law Act1975 (Cth), ss 60B, 60CA, 60CC(2), 60CC(3), 61DAA
Cases cited:	Taylor v Barker [2007] 37 Fam FLR 461 Fyfe v Kingsley [2020] FCCA 1535 AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Heath v Hemming(No.2) [2011] FamCA 749 MRR v GR [2010] HCA 4
Division:	Division 2 Family Law
Number of paragraphs:	226
Date of last submission/s:	24 August 2021
Date of hearing:	23-24 August 2021
Place:	Bendigo
Counsel for the Applicant:	Ms Mallett
Solicitor for the Applicant:	J A Middlemis
Counsel for the Respondent:	Ms Swart
Solicitor for the Respondent:	Dhillon Legal

MLC 4973 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BEITEL Applicant
AND:	MS BEITEL Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	13 OCTOBER 2021

Alleged Download		Father’s Response
(a)	Cam app 1, Cam app 2 and Web cam app	He is not familiar with these apps. He got a printout from Apple and believes they were downloaded by X.
(b)	App FF	He downloaded this app as a result of his employment with Employer P so he could set up new functionality and then a new web address. It is his evidence he needed a second authentication so that he could enter into their internet page and could access their web page at home.
(c)	App HH	He could not recall ever seeing this app.
(d)	Various internet banking apps (annexed to the Mother’s affidavit were screenshots with NAB Mobile App, a Westpac App, a Bank Q App and an ANZ go money Australia App)	The parties have a Westpac account and an NAB account. It is his evidence the parties have an old ANZ account that was shut down a while ago. He has a Bank Q account.