Britz & Zakaria
[2025] FedCFamC2F 151
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Britz & Zakaria [2025] FedCFamC2F 151
File number(s): PAC 7040 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 14 February 2025 Catchwords: FAMILY LAW – PARENTING – Best interests of child – Relocation – Orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61D Cases cited: Banks & Banks (2015) FLC 93-637
Grainger & Grainger (No 3) [2024] FedCFamC1F 470
Jollie & Dysart [2014] FamCAFC 149
Jones & Dunkel (1959) 101 CLR 298
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 185 Date of hearing: 28 – 30 January 2025 Place: Parramatta Counsel for the Applicant: Mr Karp Solicitor for the Applicant: Karam Langhorne Pty Ltd Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: AS Family Lawyers Counsel for the Independent Children's Lawyer: Mr Tuckey Solicitor for the Independent Children's Lawyer: Lonsdale & Associate Lawyers ORDERS
PAC 7040 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRITZ
Applicant
AND: MS ZAKARIA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
12 FEBRUARY 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The children live with the Father in Sydney.
2.The Father exercise sole parental responsibility for the long-term welfare decisions of the children including health and education.
(a)In exercising parental responsibility, the father is to advise the Mother in writing of any decision he proposes to make within 14 days.
(b)The Mother is to provide her views in writing within a further 14 days and the father is to give consideration to those views before making any final decision.
3.The Children spend time with the Mother as agreed and if not agreed as follows:
(a)During term holidays 1, 2, 3, from 4.00pm on the last day of term to 5.00pm on the Sunday prior to the first day of the new term.
(b)In term 4, Christmas Holidays, the first half of the holidays with the Mother in even years and the second half with the Father and;
(c)In term 4, Christmas Holidays, the second half of the holidays with the Mother in odd numbered years and the first half with the Father.
Changeovers
4.As agreed between the parties and if not agreed as follows:
(a)The Mother to pick up the children from Sydney at the commencement of the children’s time and drop off in Sydney at the conclusion of her time.
(b)The parties are entitled to nominate a third party to assist and facilitate the handover if required by the parents.
(c)The mother is entitled to use any lawful mode of transport to drop off/ pick up the children including flights, train, and motor vehicle.
(d)The venue for the drop off/ pick up in Sydney is to be agreed by the parties in writing one week prior to any proposed travel.
Communication
5.The parties do all acts and all things to subscribe to and download the IMO communications App or alternative Family App as agreed between the parties (“the App”) and;
6.All communication between the parents in relation to the children is to occur through the App.
7.The Children shall together have 30 minutes phone time with the non-live with parent as it happens to fall on Sunday, Tuesday and Thursday between 6pm and 7pm.
8.The children are at liberty to call the absent parent at any reasonable time and the parent with care of the children is to ensure the children have access to a working phone or other device.
9.The parent who does not have care is at liberty to call the children on their birthdays, and special events such as Christmas and religious holidays.
10.The Father provides an undertaking to download any important events pertaining to the children including but not exclusive to, any medical appointments, school events, extra- curricular events, special occasion events within 24 hours of the appointment being made into the App Calendar.
11.The parties utilise a communication book to travel with the children for the purpose of updating the parent with care on topics including but not exclusive to:
(a)the children’s medication and instructions
(b)dietary changes/requirements
(c)sleep patterns
(d)commentary in relation to the health and wellbeing of the children.
12.The Mother is permitted to liaise directly with the child’s treating specialists/health care providers, and;
(a)The child’s treating specialists/health care providers are to provide to the Mother all communication and reports that are routinely provided to parents.
13.The Mother is entitled to liaise directly with the children’s school and obtain all reports and any other information whatsoever in relation to the children’s education and:
(a)The Mother is entitled to attend any events such as, but not exclusive to, parent/ teacher interviews, sports events, and carnivals that parents are invited to.
(b)The mother is to be listed on any enrolment forms that request information in relation to the identity of the children’s parents.
14.The parties are to notify each other of any change of address, contact details (including phone number and email address) within 24 hours.
Restraints
15.The Parties are restrained from:
(a)Denigrating the other parent, in front of the children, or through any other form of social media, and as far as they are able, stop any other person from denigrating the other parent in the presence of the children.
(b)Talking about these proceedings or providing a third person with material in relation to these proceedings unless specifically allowed by way of these orders.
(c)“Without admissions’, chastising the children physically in any form including ‘lawful chastisement’
16.In the event either parent wishes to change the orders before engaging in any further litigation they will engage in mediation with a Family Dispute Resolution Practitioner licensed to practice in NSW and/or Victoria and:
(a)The parties shall do all acts and all things to engage in the process at the request of the other parent.
(b)The parents share the costs of any mediation equally between them.
AND THE COURT NOTES THAT:
A.The first day of the holidays in term 4 commences after school or 4.00pm on the last day of term and the last day of the holiday is on the Sunday prior to the start of the new term at 5.00pm.
B.The mid-point of the holiday is the third Sunday after the commencement of the holidays at 5.00pm.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to W, born in 2015, X born in 2016, Y born in 2018, and Z born in 2020 (“the children”). The children are aged, 9, 8, 7, and 4 respectively.
The father was born in 1977 and is currently 47 years old.
The mother was born in 1989 and is currently 35 years old.
Both parties were born in Country B.
The parties commenced their relationship in 2014.
They separated in 2018.
After separation the mother moved to City C with the children and the parties had an informal agreement that the children would live with the mother and spend time with the father from Friday 3.00 pm to Sunday 8.00pm and such other times as agreed.
In 2021, the mother moved from City C to a home in Suburb D.
In late 2022, the mother and children relocated to Melbourne.
The father initiated proceedings on 22 December 2022, seeking inter alia, for the mother to return to Sydney with the children.
On 15 February 2023, Senior Judicial Registrar Malinowsky made interim orders that the children to return to Sydney and live with the father and spend time with the mother during, inter alia, school holidays. This parenting arrangement has continued until the date of this hearing. The mother remains living in Melbourne.
In 2023, the mother gave birth to a child E. The father is not the biological father of this child.
The father has a child from a previous relationship, namely F, now aged about 14 years. The Children’s Court had previously directed the father to have frequent contact with this child every month.
PROPOSALS
The mother sought orders as set out in her final proposed minute of order (Exhibit F) for her, inter alia, to have sole decision-making responsibility for all of the children’s major long-term issues, and for the children to live with her and spend time with the father on two weekends per month and during the school holiday periods.
The Independent Children’s Lawyer (the “ICL”) sought orders as set out in her proposed minute of orders (Exhibit G) which, inter alia, provides for the father to have sole decision-making responsibility for the children’s long-term welfare issues, for the children to live with him in Sydney, and spend time with the mother as agreed or if not agreed then during specific periods in the school holidays.
The father sought orders as sought by the ICL.
MATERIAL RELIED UPON
The father relied upon:
(a)His Case Outline filed 30 July 2024;
(b)His affidavits filed 26 July 2024 and 27 January 2025;
(c)Affidavit of Mr G filed 26 July 2024;
(d)Affidavit of Ms H filed 25 July 2024;
(e)Notice of Child Abuse Family Violence or Risk filed 8 February 2023;
(f)Interim Orders of 15 February 2023;
The mother relied upon:
(a)Her Case Outline filed 30 July 2024;
(b)Response to Initiating Application filed 8 February 2023;
(c)Her affidavits filed 17 July 2024 and 13 January 2025;
(d)Notice of Child Abuse Family Violence or Risk filed 8 February 2023; and
(e)Family Report by Ms J dated 16 January 2024.
The ICL relied upon:
(a)Case Outline filed 30 July 2024;
(b)Family Report by Ms J dated 16 January 2024; and
(c)Affidavit of Mr G filed 26 July 2024.
The following documents became exhibits:
(a)Exhibit A: Pages 77 to 131 of the father’s tender bundle.
(b)Exhibit B: Pages 1 to 9 of the ICL’s tender bundle.
(c)Exhibit C: Pages 134, 135, 147, 149, 154, and 157 of the father’s tender bundle.
(d)Exhibit D: Family Report of Ms J dated 16 January 2024.
(e)Exhibit E: Notice of Child Abuse Family Violence or Risk filed 22 December 2022 by the father.
(f)Exhibit F: Mother’s proposed minute of order.
(g)Exhibit G: ICL’s proposed minute of order.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and the evidence referred to under the Court’s discussions under section 60CC, the latter evidence shall take precedence.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father, in oral evidence, sought to answer questions responsively. There were numerous occasions when he required the questioner to repeat the question but this is likely because English was not his first language.
The father migrated to Australia from Country B in about mid-2004. The mother migrated from Country B in 2013. They are both of Country K descent. The father states that he has purposely passed on and inculcated in the children their Country K heritage.
The father stated that he recovered well from an injury sustained in 2010 when he was attending an event in Melbourne. He states however that he does receive disability support payments from Centrelink.
The father stated that the parties both cared for the two eldest children after they were born with the mother attending to the larger part of the housework whilst the father tended to the children. He stated that the parties cared for the children by way of their daily needs, such as bathing, feeding and sleeping, equally.
The father stated that the parties’ relationship was impacted by the mother’s incessant accusations that the father was being unfaithful. He stated that the mother would often go through his mobile phone scrutinising every call and text message he would make.
After the third child was born the father continued to help the mother care for all the children as he had done in the past.
In June 2019 the father discovered numerous intimate messages from a third person to the mother on her telephone. The father called a family meeting involving his mother, his sister, the mother’s eldest brother and the mother’s other two siblings. The father asked the mother to swear on the Bible that she had not been unfaithful and the mother did so. The father asked the mother to unlock her phone and give it to her brother. As the father directed the mother’s brother to her Facebook Messenger application on her phone the mother immediately jumped at her brother and snatched the phone out of his hand. The mother shouted at the father’s family to get out of her house.
In mid-2019 the mother left the family home with the children having collected her belongings and moved with her sister to City C. The father would see the children every week from Friday afternoon to Sunday afternoon. The parties had a brief reconciliation a few months later, and the mother returned to live in City C. Since her departure in late 2019 the parties had an arrangement in which the children lived with the mother and spent time with the father every fortnight from Friday afternoon until Sunday evening. The father continued living in a housing commission home at Suburb L.
The parties’ fourth child was born in 2020. The father commenced seeing this child frequently and started spending overnight time when the child was about a year old.
In late 2021, the mother’s sister moved to Melbourne to marry there. The mother then left the apartment in City C and moved to a townhouse in Suburb D with her brother.
The father has been told by the children that when they have spent time with the mother in Melbourne they have been staying with the mother’s sister and her husband.
The father stated that he cannot and does not travel to Melbourne since he was attacked there in 2010. He stated that in light of his injury he is unable to drive for prolonged periods. He states that since the injury he has not driven to Melbourne.
The father stated that he has completed parenting courses to be better attuned to the needs of the children.
The father stated that the mother would often feed the children junk food laced with high amounts of sugar. He stated that the mother would give the children liberty to stay up as they pleased and sit on devices all day long. From his conversations with the children when they return from seeing the mother he understands that they have no bedtime routine and do not complete any study whilst they are with the mother.
The father coaches a sports competition for X and W and their classmates every Thursday evening in terms two and three. The competition days are on Saturdays during terms two and three.
The father stated that the children are close to the paternal family consisting of the father’s parents and siblings and their respective children.
The father stated that since the children’s birthday they have been immersed in the Country K diaspora in Sydney. They attend and participate in regular Country K community events held throughout the year. The children are also active in the Country K Orthodox community of which they are members and readily attend liturgical and cultural functions. The child W has commenced his rite of initiation in the father’s local Country K Orthodox parish.
The father stated that the mother has on numerous occasions missed phone time calls with the children.
The father states that his only means of income is from the disability support pension. He stated that should the Court make orders that the children relocate to Melbourne he will not be able to afford flights for himself and the children, four times a year. He states that neither can he afford accommodation in Melbourne for the duration of the school holiday period four times per year.
The father states that the children have been progressing well in their schooling and continue to establish new relationships and build on existing friendships they have established with their peers at school.
The father states that he obtained a new phone number for the children on which the mother could directly contact the children, instead of calling them on his number.
The father states that the mother did not spend time with the children during the term 3 school holiday period in 2024 due to issues with her car.
The father states that at the most recent changeover, for the second half of the term 4 school holiday on 17 January 2025, the mother did not come to pick up the children. Rather her sister came to pick them up.
The father stated that he has been sending pictures of the children’s school awards to the mother.
The father stated that the eldest child W was doing very well. He acknowledged that this child’s behaviour at school, the subject of a report on 4 September 2023, was not good behaviour. The father stated that he discusses with the children’s teachers any behavioural issue which arises. He stated that a number of the school misbehaviour reports regarding some of the children were factually inaccurate. He stated that he usually spoke to the teacher and the child regarding the reports.
The father disagreed that the school reported incidents (including white slips issued by the school to the child) regarding W indicated that he had an underlying anger problem, and did not have anything to do with his relationship with the mother.
The father was asked whether he had ever spoken to the mother regarding the children’s misbehaviour at school, to which the father replied that he was not allowed to communicate with the mother pursuant to an Apprehended Violence Order which expired in mid-2024.
The father stated he had communicated with the mother regarding the children’s health.
The father stated that the children talk to the mother over the telephone regarding their white slips from school and tell her what happened the subject of the white slip incident. He stated that sometimes he has overheard the children speaking to the mother in this regard.
The father denied that he was unfaithful to the mother during their relationship. He denied that he had online meetings with other women.
The father was questioned in relation to paragraph 59 of his affidavit filed 26 July 2024 in relation to the father’s belief that the mother had been unfaithful in their marriage. It was put to the father that he had, in a family meeting he had arranged and which included the mother, humiliated the mother and had sought to control her, to which the father denied. The father stated that by reference to their culture and background he had brought the family together to try and fix the parties’ issue.
A short time later he was asked whether he had thought of apologising to the mother in respect of his request to the mother to swear on the Bible that she had not been unfaithful. The father replied by stating that we believe in the Bible, and we are married and buried on the Bible. He stated that he was trying to repair the parties’ relationship, the marriage, the family, the children, a whole generation. In this context he stated that he wanted a happy family life.
It was put to the father that he was controlling the mother when he went through her telephone and obtained her private messages, to which the father denied. He stated that he had never gone through the mother’s telephone until he found what he had found (regarding her alleged unfaithfulness in the marriage).
The father was questioned as to paragraph 66 of his affidavit filed 26 July 2024. He was asked whether he was not surprised by the mother leaving his home, to which the father stated that that was her choice. A short time later he stated that no matter what had happened (during the parties’ relationship) no one had control of anybody.
The father stated he had a child from a former relationship named F who is now aged about 13 years. He sees this child about once a month on a Sunday. He stated that this child’s mother had died.
The father stated that he was attacked whilst playing sport in Melbourne in about 2010 and suffered an injury. He stated that two of his symptoms were a physical symptom about once a year and that he was scared getting close to people. He states that he teaches the children the Country K language. He states that he organises sports games for his children and that he has also acted as a coach.
The father stated that the children love both the mother and the father.
The father stated that a long time ago he used a belt to physically discipline the children on their backside. He stated that he doesn’t use this belt anymore.
The father stated that after the parties’ marriage there were bad words spoken. He stated the mother had accused him of cheating.
The father stated that the children have all their family in Sydney. He stated they were born in Sydney. He stated their community was here. He stated the mother used to live in Sydney as well.
The father stated that if he was working in employment then he would, for the benefit of the children, contribute to the mother’s expenses in seeing the children (if the children remain living with him in Sydney).
The father stated that his 2010 injury doesn’t stop him from looking after the children.
The father stated it was important to communicate with the mother regarding parenting the children.
The father confirmed that in his Notice of Child Abuse Family Violence or Risk filed 2 December 2022 (Exhibit E) that he had indicated that there was no risk of family violence, child abuse or other risk in relation to the mother.
The father denied verbally abusing the mother and calling her names such as bitch.
The father stated he did not recall the children saying anything negative regarding the mother over the telephone.
The father stated the mother has a right to know about her children when living in his home.
The father stated the children go to sleep at 7.30 pm. He stated that FaceTime between the children the mother three days a week from 6.00pm to 7.00pm was practical.
The father stated that when he took the children to Melbourne in September 2024 for a family event there was insufficient time for the children to spend time with the mother.
The father stated that the children know that his new partner is not their mother; he stated that the children know that their mother is Ms Zakaria.
The father acknowledged that the mother’s child E is the children’s brother. He stated that he had told the children that E is not his son.
The father stated that the children hear swear words at school. He said the children are not allowed to use swear words in the home. He denied using swear words in the home.
The father stated that he tells the children that their mother loves them.
The father stated that prior to the family report interviews, he told the children not to be scared, to be honest and not to lie.
The father stated that he ceased drinking alcohol about five years ago. He stated it was a commonsense decision and that he had a responsibility to take care of the children.
The father stated that his form of discipline with the children is timeout and/or taking their iPads away. He stated he does not use physical discipline now and hasn’t used such discipline for about three years.
The father stated that he enrolled the children at M School. He stated he receives annual school reports for the children. He stated that he understood that the mother could contact the school herself to obtain copies of the children’s school reports.
The father stated he assists the children with their homework every day. He sits down and helps them. For example, if they have handwriting problems he might go and buy a book to assist them. He referred to the child X getting a school award for handwriting.
The father stated that every Thursday at school the children play sports. He stated he does voluntary work at a school in that regard. He stated that every Saturday the children play sports with children in the area at a park. He stated that on occasion other children come to their home. He stated that every Sunday, after the family’s church service, the children play with other children who attend the same church.
The father stated that the children see the paternal grandparents and auntie regularly. He stated that twice a week the children go to see the paternal grandparents.
The father stated that the eldest child was in year 4, the next child was in year 3, the next child was in year 2, and the youngest child was at preschool. The father also stated that the youngest child, Z is registered to begin school at M School next year. The father stated that the three eldest children had been attending M School since about February 2023.
The father stated the children have friends at their school.
The father stated that the children have friends in Sydney, they have family, they have their church in Sydney and they have their community in Sydney. He stated that the children would miss out on these things if they were required to relocate to live with the mother in Melbourne.
The father was asked what the benefit to the children in spending time with the mother was. The father responded by stating that no matter what happened, the mother was the children’s mother. He stated that he doesn’t want the children to suffer.
The father stated that he doesn’t have a photo of the mother in his home (because the mother is divorced) however the children see photos of the mother on the telephone.
The father stated that when the children talk to the mother the mother’s child E is referred to by the mother to the children. The father stated he is happy for the children to be close to this child.
In re-examination the father was asked that if the court ordered that the children live with the mother in Melbourne whether he could visit the children in Melbourne. The father answered in the affirmative but said that he has suffered trauma.
Ms H, the father’s new partner
The Court does not propose to set out the entirety of her affidavit and oral evidence.
The witness stated that she has five children from a previous relationship. These children live with their father and spend time with the witness on weekends.
The witness stated that she works as a community worker. She has completed her studies in allied health. She works part-time three days per week. She has been living with the father since mid-2024.
The witness stated she is very close to the children. She is involved in the children’s care from preparing their uniforms and lunch to helping them with their homework. She is in regular contact with the children’s school in respect to their schooling. She cooks, helps with cleaning, and attends to other chores in the house with the father. She states that she loves the children dearly and treats them no different to her own children. She has never seen the father abuse the children in any way.
The witness stated that she has not observed the father to suffer any problem regarding his disability pension.
The witness stated she has never seen the father use a belt to discipline the children. She stated she has never seen the father get mad at the children.
The witness stated the children love both the mother and father.
The witness stated that education and health wise the children are going well. She referred to good feedback in this regard. She stated that she doesn’t have any concern regarding the children in any other respect.
The witness stated she was aware of certain white slips for misbehaviour regarding the children at school. She stated that they had spoken to a school liaison officer regarding the issues arising out of these white slips. It was agreed that the children should see a counsellor which is yet to occur. In this context, she stated that after every school holiday the children’s behaviour changed.
The witness stated that she was aware that the children’s school reports had expressed some concern regarding the children’s behaviour. The witness stated that in this regard they were working together with the school to deal with this issue. She stated that the purpose of the counselling was to understand the children’s emotions and what was happening at school in relation to the white slips.
The witness stated that she believed she was able to work constructively with the mother. She stated she was happy for the children to have a close relationship with the mother.
The witness stated she heard the father speak to the children about the mother; in this context she heard the father had stated that the mother was their mother, and that they should give her respect and speak to her.
The witness stated she had seen the father use timeout to discipline the children. She had not seen the father use physical discipline upon the children.
The witness stated she felt that the children were settled at M School. She had picked this up from teacher interviews. She also sees that the children are really happy. She stated the children have friends in their area. They play sports together, and sometimes go to the park.
The witness was asked how the children might cope if they had to live with the mother in Melbourne. She responded by stating that the children’s family are all in Sydney. They were born in Sydney. They have friends in Sydney. She stated that to move the children would make an impact upon them and they would have to make new friends.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother, in oral evidence, usually sought to answer questions responsively. Her English was somewhat stronger than the father’s English but it was apparent that English was not her primary language. On occasion the Court had to remind the witness to refrain from commencing her answer to the question until the question was fully asked. She presented as a witness who was keen to fully present her case with the Court observing that her answers to questions often contained material which was not directly responsive to the question asked.
The mother states that she was in another relationship in 2022 and she has another child E who was born in 2023.
The mother states that she was the primary carer for the children.
The mother states she separated on a final basis from the father in mid-2018.
The mother stated that she had moved in, with her son E, to live with her brother Mr N at his residence in Melbourne about six months ago.
The mother initially stated that if the father was to move to Melbourne, she would not move back to Sydney. She stated she was settled in Melbourne and she wants to feel safe. She stated that she did not want the father to “be close” to her and that if they were both living in the same state she would not feel safe. She suggested that herself and the father could co-parent in different ways in the future. However, when questioned by the Court, the mother gave different evidence stating that if the father moved to Melbourne she would not live there.
The mother’s attention was drawn to the content of certain school reports of the children. The mother agreed that the school reports indicated the children were performing adequately at school.
The mother’s attention was drawn to text messages, appearing at page 34 of 77 of the father’s affidavit filed 26 July 2024, which appeared to be text messages sent by the mother to the father at 12.11 am and 12.15 am on 14 June 2019 in which the mother stated that the children were alone in the house and the husband should go home. The mother denied that she had sent those text messages. She asserted that the husband had made up the messages himself and left them on her phone.
The mother agreed that in the period after separation in mid-2018 to December 2022 there was an agreement between the parties that both parents would spend time with the children, which involved, inter alia, the father picking up the children from the mother’s residence. The mother agreed that she thought it was important that the children have contact with the father. She later stated that she presently believes it is important for the children to have contact with the father.
The mother agreed that she had not sought another family intervention order in Melbourne against the father after the first such order expired. She agreed that there was nothing to stop the father travelling to Melbourne. The mother agreed that there had been no further instances of alleged family violence since she moved to Melbourne. She agreed that since 15 February 2023 both parents were spending time with the children.
The mother acknowledged that the father was in Victoria in about mid-September 2024 and he did not attempt to see or follow the mother.
The mother stated that she had never previously seen the children’s school reports.
It was suggested to the mother that if she was to move back to Sydney that she could potentially obtain protective orders from the Court to address her fears of the father perpetrating family violence against her. The mother stated that the court would not be able to protect her enough.
The mother was asked if she had considered obtaining accommodation in City C to live, to which the mother answered in the negative. The mother stated that her brother Mr O lives in City C.
The mother stated that she had always lived with her family members in Melbourne. She stated that they do not support her financially but rather emotionally.
The mother stated she was able to communicate with members of the father’s family.
The mother stated that she did not feel that she was able to have a working coparenting relationship with the father’s present partner because she was the father’s partner and the mother felt uncomfortable with her.
The mother stated she does not pay rent to her brother, aged 28 years, in Melbourne. She stated that was a reason why she wanted to start working in employment.
The mother was asked what things she does to encourage the children’s relationship with the father. She stated, inter alia, that she did not want any restriction on the children’s time with the father which should be in accordance with the children’s wishes. She stated that if, for example, the children were due to spend time with the father and one of the children did not want to spend time with the father, that she would speak to the child, but ultimately she would not push the child to spend time with the father if they didn’t want to spend time. In this context she stated that she could not force the children to spend time with the father if they didn’t want to go.
In re-examination, the mother stated that the father of E lives in New South Wales.
Family Report
The author of the Family Report dated 28 August 2023 was Ms J, Court Child Expert. She interviewed the family on 6, 7, and 9 November 2023.
The Court does not propose to set out the entirety of the Family Report.
At paragraph 9 the Family Report writer stated:
9.The Court Child Expert observed the children to be emotional, confused and as though they felt they must choose between their parents. [W] was difficult to engage in the assessment process and it is unclear if this was because of the loyalty bind he might feel between his parents, being coached, being scared to participate and/or his cognitive abilities. [X] was talkative and playful. [Y] was friendly and easy going. [Z] was curious and cheerful.
At paragraph 20 she stated:
20.Both parents acknowledged that, in […] 2022, the co-parenting relationship broke down when [Mr Britz] became aware that [Ms Zakaria] was pregnant with [E].
Under “Evaluation”, she stated, inter alia:
102.[W], [X], [Y] and [Z] presented as emotionally distressed and confused children who appear to have strained relationships with both of their parents. Currently, the children’s ability to have meaningful relationships with [Ms Zakaria] has been limited because they have not been able to spend consistent or frequent quality time with her since February 2023. It seems that the children have spent limited time with [Ms Zakaria] because of the costs associated with interstate travel and the extremely ineffective communication between the parents. In the past, the children’s relationship with [Mr Britz] has also been restricted.
…
107.It is suggested that limited weight be placed on the children’s expressed views because of the children’s apparent stages of development, in conjunction with the serious allegations of family violence, child abuse and neglect and that each parent has reportedly attempted to negatively influenced the children’s perception of the other.
…
125.If the Court determines that [Ms Zakaria] has fabricated the allegations of family violence; [Mr Britz] has not negatively influenced the children’s perception of [Ms Zakaria]; and [Mr Britz] has not used excessive discipline/abuse on the children, it might be necessary for the children to remain in [Mr Britz]’s primary care and spend time with [Ms Zakaria] for half of the school holidays in Melbourne and additional time in Sydney throughout the year, if [Ms Zakaria] is visiting Sydney. Furthermore, it would be suggested that the children have telephone/video contact with [Ms Zakaria] at a minimum of once a week and additional communication in accordance with the children’s wishes. It would be recommended that the children spend time on alternate years for Christmas in each parent’s care and that they have telephone/video communication with the non-resident parent on special occasions.
126. … If [W], [X], [Y] and [Z] did not have a relationship with [Mr Britz], it could have negative consequences in several aspects of the children’s lives. Such issues the children may experience could include struggling with their identity, impacting their sense of belonging, and experiencing feelings of grief and loss. The children are at greater risk, were they unable to continue their relationship with their father, to the perception that [Mr Britz] does not love them, and they may be prone to longing or yearning for their father. These issues could potentially become internalised and pose lasting fundamental issues for [W], [X], [Y] and [Z].
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
As to a child possibly refusing to spend time with a parent pursuant to a Court order, she stated:
ICL: And so what about the situation where, by order of this court, the child is to move from one parent’s care to another parent’s care for, say, the school holidays, and a child, a couple of days before, says, “I absolutely don’t want to go to that parent’s house”? How is that best dealt with?
WITNESS: Once again, it’s complex. It’s the order that they have to go, so both parents need to be promoting that and facilitating that. However, if it was an extreme example, like a child was threatening self-harm or suicide, then that needs to be addressed with a medical professional. But if it’s purely, “I don’t want to go,” well, it should be encouraged and followed the orders.
As to the possible effect upon a child of having been relocated to Melbourne in late 2022, she stated:
ICL: But if we can look at the aspect of the mother removing the children to Melbourne in [late] 2022. Now, putting aside whether the reasons for doing that were good or not, what sort of effect would that move, where they’ve had contact with both parents going along, and then, suddenly, they’re taken to a different city and they don’t have contact with the other parent for a period of time?
WITNESS: It could be quite emotionally distressing and scary for the children.
As to the possible effect upon the children of relocating to Melbourne and starting school there she stated:
ICL:And then there has been evidence that, depending on their age, the children play [sports] on Thursday afternoons regularly with other children, and in the park with other children. Just the fact that that has been – that they’ve been in that school, they’ve been in that one home for school nights for a period of two years, because it was one year at the time you wrote your report, how will that affect relocation of the children to start school in Melbourne?
WITNESS:It would be unsettling, I’m sure. It could be disruptive for them.
ICL: In what ways?
WITNESS:Their friendships, their security of the network of people that they have around them, the safety that they feel in that school, learning that way of being educated in that school, their routines and their relationships with their family and friends and community.
The Family Report writer was asked if her prior opinion that the children live with the mother in Melbourne might be affected by, inter alia, a finding that no physical violence or threat of violence had occurred and this evidence was given:
ICL:If you were to hypothesise, just for now, that there hadn’t been physical violence and threats of violence, and there was a situation where the move to Melbourne and putting the distance between the two parents wasn’t justified by that, and then now there has been two years without any evidence that it had occurred in the first place, does that affect your opinion?
WITNESS: Yes.
ICL: And how does that affect your opinion?
WITNESS: First of all, if the children are settled in New South Wales with their dad, and there was no dynamics of family violence, then it would impact the recommendations. Yes.
HIS HONOUR: In what way? Are you saying or suggesting that you might alter your recommendation and conclude, on this hypothesis, that the children should remain living with the father in Sydney?
WITNESS:Yes.
ICL:So, essentially, the allegation of violence was the tipping factor in your report between maintaining the status quo and suggesting the move?
WITNESS:That was aspects of it, but it was – it’s in conjunction with the children’s presentations, their emotional presentations, their narratives that they told me, and also the parents’ ability to facilitate and promote the child’s relationship with the parent they don’t live with.
ICL:And if all those things have improved since you’ve assessed them, then that would also add to that balance between the two things?
WITNESS:If it was genuine, yes.
The Family Report writer stated that children need stability, consistency, predictability and safety in their parenting arrangements. The parent who can provide that, it’s going to help the kids thrive in life.
As to the parties facilitating the children’s relationship with them in circumstances where the mother remains living in Melbourne and the father remains living in Sydney, she gave this evidence:
COUNSEL:But if that face-to-face relationship doesn’t occur for significant periods of time, I’m talking about months or even years, then the relationship with the non-contact parent can be considerably hampered?
WITNESS:If it was years, yes. However, it really depends, like I’ve said, on the parent’s ability to still maintain knowledge about the child, their development, their achievements, and the interest they show when having the conversations with the child online, because then it – that’s about the connection. So it’s about being attuned to the child still. And you can do that through video. You can still know of their achievements and praise them. And this goes for both households.
COUNSEL:But if the children were to stay in Sydney and have contact with the mother personally or through video link, it would work the same way in that sense, wouldn’t it?
WITNESS: If the parents are genuinely supporting and promoting the child’s – children’s relationship with the other parent, yes.
Counsel for the father asked the Family Report writer to assume the Court found that family violence had not occurred and this evidence was given:
COUNSEL:So in your opinion, and you may have become a part of this with Mr Tuckey, if the court were to find that family violence had not occurred, would your recommendations that the children live with the mother change?
WITNESS:It would be in conjunction with if the parent that they live with truly promoted and facilitated their relationship with the other parent. So it – it’s in conjunction. So it’s – it’s not just aspects of the family violence. It’s the ability for the children to – for a parent to promote and facilitate that relationship and the narrative that they tell the children, their facial expressions, their body language. It’s – it’s that as well.
As to a party facilitating time between the children and the non live-with parent, she gave this evidence:
HIS HONOUR: Okay. Just in this context, ma’am, of – well, that last sentence of paragraph 127 of your family report. I want you to assume that the mother gave evidence that if the court ordered the children to live with her in Melbourne and spend time with the father, and it came to the children spending time with the father under that order, and one or more of the children was oppositional to spending time with the father on that occasion – I want you to assume the mother said that in that circumstance, she would speak to the child or children as to why they were oppositional to spending time with the father, but ultimately, she would accede to their wishes, and that she wouldn’t force them to go. Does that give you any concern or not about this issue of a parent’s willingness to facilitate the child’s or children’s relationship with the other parent?
WITNESS:Yes, your Honour.
COUNSEL:Following on from his Honour’s question, in what way does it affect your assessment of the willingness of the mother to facilitate contact with the father?
WITNESS:Once again, it’s like the school example. It’s the law that the children need to go to school. We can validate the reasons why that – they don’t want to go, but we’ve got to still get them there.
It became quite apparent after the Family Report writer gave her oral evidence, that her recommendations as to which parent the children should now live with depended, to a significant extent, upon what findings the Court ultimately made as to, in particular, family violence and the ability of one parent to facilitate the children’s relationship with the other parent.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
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: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The Court refers to the discussion of relevant legal principles relating to relocation decisions in Grainger & Grainger (No 3) [2024] FedCFamC1F 470 by Schonell J including the following discussions:
134A relocation case is to be determined in the same way as any other parenting case, they are not a special category of case: Morgan v Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe and Another (2012) 48 Fam LR 298 (“Sayer v Radcliff”) at [47]–[48].
135 The Full Court in Sayer v Radcliffe observed:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
136However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80].
…
140While the best interests of the child is the paramount consideration in the making of a parenting order, it is not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires, and the right of a parent to live where they wish is an important consideration.
141In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want conflicts with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89].
142In Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court explained the applicable law in these terms:
27.There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28.While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The Court will consider the above considerations together.
Family violence and conflict
The mother makes allegations against the father of family violence during their relationship including coercive and controlling family violence. The father significantly denies these allegations. Again, the parties had a relationship of about 3 years from about early 2015 to about mid-2018. The children have been living primarily with the father since February 2023.
Subject to one matter discussed below relating to an incident between the parties in about June 2019, on the balance of probabilities, the Court does not accept the mother’s allegations of family violence, including coercive and controlling family violence, made against the father. In relation to this finding, the Court takes into account, in particular, the following matters:
(a)the father denied the mother’s allegations of family violence, including coercive and controlling family violence;
(b)the mother alleged that in late 2022 the father had thrown a bag of clothes in her face and that he punched her in the stomach (the mother then being pregnant). Yet in the mother’s application and summons for an intervention order in the Magistrates Court in Victoria dated late 2022, she alleged that the father had pushed her while she was pregnant but made no mention of the father punching her in the stomach.
(c)The mother, in relation to the allegation of being punched in the stomach in late 2022 when pregnant, did not immediately attend upon a medical practitioner. She attended upon a medical practitioner in Victoria the following month however did not expressly report being assaulted by the father.
(d)The mother, despite her allegations of a verbal threat by the father to kill her in late 2022 and an assault upon her by the father (a punch to the stomach whilst pregnant) in late 2022, did not report these alleged instances of family violence to the police in New South Wales, but waited until the following month to make a report to Victorian police.
(e)The mother alleged that in late 2022, the day before she relocated with the children to Melbourne, she called her brother Mr N. The mother alleged that she asked her brother if he could drive her to Melbourne as she did not feel that she could stay in Sydney anymore as she was scared for her safety. Yet the mother did not call this brother to give evidence and he was available to give evidence because he was present at court during the trial. Pursuant to Jones & Dunkel (1959) 101 CLR 298 (“Jones & Dunkel”), the Court finds that nothing that the brother could have said in evidence in this context could have assisted the mother’s case.
(f)The mother alleged that her sister Ms P was approached by the father in City C and screamed at her repeatedly, with the sister allegedly crying and telling the mother that she was very scared. Yet the mother did not call this sister to give evidence and there was no evidence that she was not available to give evidence. Pursuant to Jones & Dunkel the Court finds that nothing that the sister could have said in evidence in this context could have assisted the mother’s case.
(g)The mother left the children alone at home on about 14 June 2019 and requested the father to go home to care for them: see page 34 of 77 of father’s affidavit.
(h)The mother left the three eldest children in the care of the father for a weekend in about April 2022 when the mother suddenly travelled to Melbourne in relation to a family event: see page 34 of 77 of father’s affidavit.
(i)There was no cross-examination by the mother of the father relating to the mother’s allegations of physical family violence.
(j)The mother alleged that the father had sought to control her when it came to her family. She alleged that whenever she was asked to spend time with her family the father told her that he was not going to drive the mother (to her family) because it was too far. There was no cross-examination of the father on this allegation. The mother does not provide factual particulars as to why she was unable to visit her family in the absence of the father driving her there.
(k)The father, in his own affidavit filed 26 July 2024 at paragraphs 56 to 60, stated that in about June 2019, about a year after separation, he inadvertently discovered on the mother’s phone that a third person was messaging the mother, with the message suggesting the mother may have been in a romantic relationship with this person. He forwarded the messages to his phone as he wanted to confront the mother about the issue and show the messages to his family. The father stated that he was particularly hurt because the mother had been accusing him of infidelity “and it was her that was unfaithful”. He arranged a family meeting; his mother and sister attended, together with three siblings of the mother. The father stated that he explained to the family that the mother had been unfaithful in their marriage, despite the mother’s constant accusations against him of infidelity. The father asked the mother to swear on the Bible that she had not been unfaithful, and the mother did so. Then the father asked the mother to unlock her phone and give it to one of her brothers present. The mother did so. However, as the father directed this brother to the mother’s Facebook Messenger application on the phone, the mother immediately jumped at her brother and snatched the phone out of his hand. The father then proceeded to show the brother the messages that he had previously obtained. The brother then started crying. The mother at this point was shouting at family members to get out of her house because it was none of their business.
The mother’s counsel submitted that the Court should infer that the mother would have been significantly humiliated by this incident and that the father’s behaviour in this context represented a form of control by him of the mother.
The mother had not raised this incident in her affidavits and there was no oral evidence from her in this context. Despite the father’s evidence, inter alia, that he wanted to expose what he perceived to be the mother’s infidelity, and his view (expressed to the Family Report writer) that “in our religion” a relationship is not over until the divorce is finalised, viewing the father’s behaviour in relation to the incident objectively, it was unreasonable behaviour on the father’s part and the Court would infer that the mother was likely humiliated and distressed during the incident. However, even acknowledging that there was an element of control if not coercion on the father’s part towards the mother by having her attend the family meeting, requiring her to swear on the Bible, and then having the mother provide her phone to her brother at the meeting, there is no significant evidence indicating that after this meeting any ongoing control or coercion of the mother persisted in this regard. The Court finds that this incident was likely an isolated event and would attach no significant weight to it looking into the future.
(l)The mother alleged that the father used to go through her phone to obtain access to the mother’s private messages. The father denied that he did so regularly having admitted that only on one occasion (see above in relation to the family meeting in June 2019) had he done so.
(m)The mother alleged that the father verbally abused her on various occasions, and verbally threatened to kill her in late 2022. These allegations were denied by the father. There was no objective evidence to support the mother’s allegations.
(n)The child W told the Family Report writer that the father hits him and his siblings with a belt, which hurt badly and made him feel scared. The father conceded that a long time ago he used to physically discipline the children on the backside with a belt. The mother conceded in submissions that this was nevertheless probably lawful chastisement. The Court accepts the father’s evidence in this context and is satisfied that he no longer uses physical discipline upon the children but rather uses time out or a restriction on iPad usage.
(o)The father had told the Family Report writer that he was not able to put forward a formal proposal if Orders were made for the children to live in Melbourne because “I’m not going to accept that.” It was submitted by the mother that this statement indicated the father intended to control the mother and that effectively the father was insisting on getting his own way. However, this statement, made to the Family Report writer in November 2023, was not clearly explored in oral evidence, and the Court is not persuaded that the father, were the Court to make orders that the children live with the mother in Melbourne, would deliberately set out to breach such orders. In this latter context, the father has obeyed the Court’s interim orders of February 2023 relating to the children spending time with the mother.
It is likely that during the parties’ relationship, particularly towards their final separation in 2018, that there was verbal disputation between them. However, the Court observes that since February 2023, when the children began living primarily with the father, there has been no family violence or significant conflict between the parties. The father has been facilitating the children spending time with the mother in Melbourne pursuant to the Court’s interim orders. The father has facilitated the mother regularly communicating with the children by telephone since those interim orders. There is no significant evidence before the Court that since February 2023 the father has been adversely coercing or controlling the children.
Neglect
The mother submitted that the three eldest children were not performing well at school and that they were exhibiting significant adverse behaviours at school. The mother submitted that the father, as a parent, had failed to address these matters.
The father had submitted that the three eldest children were performing adequately at school. The mother was cross-examined in relation to a significant amount of content of these children’s school reports and she conceded that they were performing adequately. Independently of the mother’s concession, the Court finds that the children are probably performing adequately at school.
The school reports themselves, in relation to these children, when viewed holistically, in the view of the Court, are satisfactory. The school reports in evidence relate to semester 1 and 2 for 2023. (As submitted by the ICL, because the children’s 2022 school reports are not in evidence, it is not known whether their school functioning has improved since 2022). For example, the eldest child’s school reports for 2023, semester 2, under the heading General Comment contain positive and encouraging remarks for this child. The school reports, in 2023, for the child X, for example semester 2, refer to, under the heading General Comment, X being hard-working and a diligent learner and he has shown some improvements in his behaviour this semester. The school reports, in 2023, for the child Y, for example, refer to, under the heading General Comment, that this child has demonstrated a positive approach to her learning across all subject areas allowing her to make great progress this semester. It states that this child likes interacting with her peers and is working on being thoughtful and respectful towards her peers by being fair and taking turns. The Court refers to the father’s affidavit filed 26 July 2024 containing annexures relating to awards for W’s positive development at school including improvement in maths, excellent attendance, home reading, and excellent reading during drama (in 2024). He annexes a photo of the child X’s public speaking event at school.
The Court acknowledges the content of the misbehaviour reports from the school in relation to the children, the factual content of many of which were disputed by the father, with the father having given evidence that he had spoken to both the relevant teacher and the child. The Court accepts the father’s evidence in this context. Even if the Court is incorrect in accepting his evidence in this context, and acknowledging that many of the misbehaviour reports were, on their face, concerning, it is relevant to observe that the children’s school reports, at least for the year 2023, do not indicate under the General Comment remarks for these children, that the school considers the children’s misbehaviour as being of particular concern and irremediable. Finally, in this context, the Court accepts the evidence of the father’s partner that they have been aware of the prior misbehaviour reports for these children, that they have spoken to the relevant teachers concerned, and, acting reasonably as concerned carers, that they are proposing to arrange counselling.
The Court finds that each parent has been adequately caring for these children, including post separation to date. The Court does not accept the mother’s evidence relating to her observations of weight loss in the children. The Court refers, inter alia, to the positive evidence relating to the children (the Family Report writer having conducted observation sessions with the children) discussed by the Family Report writer. The mother’s own siblings, Mr N and Ms Q, had referred positively to the children’s development in their discussions with the Family Report writer. The Court accepts the evidence of the father’s partner in relation to the children.
The mother submitted that the father lacks empathy in relation to his care of the children. This submission is not accepted by the Court. Inter alia, the children made positive remarks to the Family Report writer in relation to the father. During the observation session with the father there were moments of affection and positive interactions between the children and the father. The mother herself refers to the children running towards the father to hug and kiss him in late 2022. And the father himself refers to no longer using physical discipline upon the children but rather adopts non-physical forms of discipline.
The Court does not accept that the mother perpetrated family violence against the father. Inter alia, the Court refers to the father’s Notice of Risk filed 22 December 2022, exhibit E.
The Court considers that its above findings in relation to this safety consideration tends not to support relocation. This view is consistent with the evidence of the Family Report writer.
(2)(b) any views expressed by the child;
The Court places no significant weight to the wishes of the children in view of their tender ages; the evidence of the Family Report writer is consistent with this view.
This consideration is probably neutral as to relocation.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Family Report writer in this context.
The Court refers to its discussion above relating to the father and his partner addressing the children’s past behavioural issues at school. The Court finds that the father has been facilitating the children spending time with the mother pursuant to the Court’s interim parenting orders of 15 February 2023.
This consideration tends not to support relocation. This view is consistent with the evidence of the Family Report writer.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The mother unilaterally relocated the children’s residence to Melbourne in late 2022. On 15 February 2023 the mother was ordered, at the instance of the father, to relocate the children’s residence back to Sydney. This unilateral relocation was probably not child focused.
The mother lacks adequate insight into the significant risk of the children’s meaningful relationship with the father being diminished if the children’s residence was relocated to Melbourne and the children’s time with the father was reduced significantly.
Furthermore, the Court has a significant concern with the mother’s own oral evidence that were the Court to order that the children now live with the mother and spend time with the father, and one or more of the children were to express opposition to spending time with the father, that the mother would merely speak to the children as to their opposition, but ultimately abide by their wishes (including a wish not to spend time with the father). The Family Report writer herself expressed concern in relation to this evidence of the mother.
Otherwise, the mother has such capacities.
As to the father, he has such capacities. The Court observes that the psychiatric report of Dr G dated 24 July 2024 made no adverse comments in relation to the father’s parenting capacity.
Again, the Court finds that the father, since the children have been living with him since February 2023, has facilitated the children’s relationship with the mother, both through facilitating the children spending time with the mother and through facilitating the children having electronic communication with the mother.
The Court finds that it is possible that the father may have practical difficulties driving to and from Melbourne with a view to spending time with the children, were the Court to order that the children now live with the mother. The father gave evidence that he believes he would be unable to endure prolonged driving such as would be involved in driving long distances interstate; in this context he referred to his serious injury suffered in an attack in 2010 and his related disability support pension. His modest financial circumstances would militate against the father affording brief accommodation in Melbourne. He cannot afford the cost of air travel for himself and/or the children.
This consideration tends not to support relocation.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The children have a meaningful relationship with the father and will benefit from a continuance of those relationships. The father has been the children’s primary carer since about February 2023.
The children have a meaningful relationship with the mother. The children will benefit from a continuance of those relationships.
As discussed further below, should the mother be permitted to relocate the children’s residence as proposed by her, the children’s time with the father will be significantly lessened because he will no longer be the primary carer. And further, as discussed above, the father will be unable to afford air flights for the children and may well be unable to endure prolonged driving to and from Melbourne.
This consideration tends not to support relocation.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of s 60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the mother’s proposals.
The mother contends that there are advantages to the child in her relocation proposal, inter alia, as follows:
(a)Some of the mother’s siblings being her sister Ms Q (who has children to her husband Mr R), and brothers Mr N and Mr S, live in Melbourne; the children will be able to see them regularly and enhance their relationship with them. (The mother’s other siblings Ms P and Mr O live in NSW).
(b)The mother will be more attuned to the children’s emotional life. This contention is not accepted by the Court, and the Court refers to its discussions above relating to the father’s emotional attunement to the children. The children love both parents. The mother, herself, told the police in late 2022 in Sydney that when the father came to the front door of the mother’s residence, the children ran to the father to hug and kiss him. The children’s observation session with the father for the Family Report, was, it should be stated, held some time ago on 7 November 2023, and showed, inter alia, moments of affection and positive interactions between the children and the father. The child W told the Family Report writer that the mother was very kind and was kinder than the father. The child X told the Family Report writer that the father loves the children and that he loves the father to tickle him. He stated that he would like both of his parents to know that he loves them “infinity”. The child Y told the Family Report writer, inter alia, that the father makes her happy and that she would like her parents to reconcile and live together as a family. The father’s partner gave positive evidence in relation to the father and his care of the children.
(c)The children would be positively exposed to her family friends and friends from her community, including church community in Melbourne. The children could play team sport. The primary school that the mother proposes to enrol the children is only a short walk from her residence, and there is a daycare centre for the youngest child adjacent to the primary school.
(d)It was implicit in the mother’s submissions that should the children now live with her in Melbourne, that their academic performance and behaviour at school will significantly improve. This submission is not accepted; the mother has not persuaded the Court, on the evidence before it, that the children’s academic performance and behaviour at school will significantly improve if living with her in Melbourne. The Court refers to its discussions above in relation to the children’s schooling and behaviour.
(e)The Court accepts that the mother wishes to remain living in Melbourne. However, it is likely that the predominant reason is that she wishes to remain living there because her maternal siblings live there with whom she has positive relationships.
The father contends that there are advantages to his proposal for, in particular, the children to remain living with him during school term times, inter alia, as follows:
(a)The father’s present meaningful relationship with the children can be maintained.
(b)The children will be able to more readily spend time with the paternal extended family who live near the father’s home.
(c)The children’s present stability, routines, and school and other friendships can be maintained. The children have been living at Suburb L since February 2023, some two years. They have attended M School since February 2023. The children have developed friendships at school and in their local area. The children regularly attend church and have friendships within that church. They have positive connections in their Country K cultural community. Should the children continue to live with the father, the children can maintain this social capital.
There is force to the submission of the father that should the children now live with the mother in Melbourne, and attend a school in Melbourne, this would represent the three eldest children’s fourth school they would have attended in their lifetimes.
The three eldest children have previously experienced some emotional dysregulation in the school setting and the father and his partner have been liaising with the school to address this issue; the school, it can be inferred, probably know these children quite well and are likely well-placed to assist the parents in managing the children’s development. There is a significant risk that should relocation be permitted, the children’s stability and routines in these above respects will be adversely affected and they will suffer emotional and developmental harm; they will have to change schools, seek to form new friendships, and experience such changes in the context of spending significantly less time with the father during school term times.
There is some force to the submission of the ICL that an order that the children remain living with the father removes the risk that the children’s behavioural issues (the subject of their school white slips, issued mainly in 2023) might be exacerbated if required to relocate to and begin to live in Melbourne with the challenges of adapting to a new social and school environment.
The Court would give significant weight to this advantage to the children of maintaining their present stability, routines, and friendships, and continuing to attend their school and church; that is, the children can maintain their present social capital in Sydney.
(d)The father may have difficulties with driving to and from Melbourne with a view to spending time with the children, should the Court order that the children live with the mother. He cannot afford the cost of flying the children and himself to and from Melbourne. With these difficulties, the father may experience restrictions in spending time with the children during the year. On the other hand, the mother has usually been able to drive to and from Sydney with a view to spending time with the children.
(e)The father contends that his housing accommodation for the children, being housing commission accommodation in Suburb L (a standalone home), is more stable than the mother’s accommodation in Melbourne. The mother’s accommodation at the home of her brother Mr N is subject to the latter’s permission. However, little evidence was adduced in relation to each parties’ respective accommodation. For example, there is no evidence that there is a real prospect that the mother’s brother Mr N will request the mother to leave his residence in Melbourne. And there is no evidence before the Court that the father’s housing commission accommodation in Suburb L is other than of secure tenure.
(f)The Court does not accept that the father could readily relocate to Melbourne. Inter alia, he is living with his partner in Sydney, his partner’s children live in Sydney, and the father’s paternal family live in Sydney.
Having regard to the Court’s above discussions both under s 60CC and in relation to the relative advantages and disadvantages applicable to each party for their respective proposals, the Court is of the view, on balance, that it will not be in the best interests of the children for relocation to be permitted. Again, particularly important factors in this context are the significant risk that the children’s day to day stability will be detrimentally affected with adverse consequences if relocation is permitted, and the significant risk of the children’s meaningful relationship with the father being diminished. In reaching this view, the Court has considered the legitimate desire and right of the mother to live where she wants, however that desire and right of the mother in this case conflicts with and must give way to the best interests of the children which is to, in particular, remain living where they now are living with the father.
Parental responsibility
Each party seeks an order for sole parental responsibility in relation to major decisions to be made for the children.
Since the interim Orders of 15 February 2023, the parties have communicated through an IMO communication app. Since that time there has been no significant telephone or face-to-face communication between the parties (albeit that the mother was for a significant period post February 2023 ringing into the father’s telephone to speak to the children). There remains significant distrust between the parties. The Court has no confidence that presently these parties could sufficiently communicate with each other, in a timely fashion and without conflict, to reach agreement on major decisions to be made for the children. The father has been the children’s primary carer since that time and will remain so. It will be in the best interests of the children that the father hold sole parental responsibility for major decisions to be made for the children relating to their care, welfare and development.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting Orders:
1.The children live with the Father in Sydney.
2.The Father exercise sole parental responsibility for the long-term welfare decisions of the children including health and education.
(a)In exercising parental responsibility, the father is to advise the Mother in writing of any decision he proposes to make within 14 days.
(b)The Mother is to provide her views in writing within a further 14 days and the father is to give consideration to those views before making any final decision.
3.The Children spend time with the Mother as agreed and if not agreed as follows:
(a)During term holidays 1, 2, 3, from 4.00pm on the last day of term to 5.00pm on the Sunday prior to the first day of the new term.
(b)In term 4, Christmas Holidays, the first half of the holidays with the Mother in even years and the second half with the Father and;
(c)In term 4, Christmas Holidays, the second half of the holidays with the Mother in odd numbered years and the first half with the Father.
Changeovers
4.As agreed between the parties and if not agreed as follows:
(a)The Mother to pick up the children from Sydney at the commencement of the children’s time and drop to Sydney at the conclusion of her time.
(b)The parties are entitled to nominate a third party to assist facilitate the handover if required by the parents.
(c)The mother is entitled to use any lawful mode of transport to drop/ pick up the children including flights, train, and motor vehicle.
(d)The venue for the drop/ pick in Sydney is to be agreed by the parties in writing one week prior to any proposed travel.
Communication
5.The parties do all acts and all things to subscribe to and download the IMO communications App or alternative Family App as agreed between the parties. ( “The App”) and;
6.All communication between the parents in relation to the children is to occur through the app.
7.The Children shall together have 30 minutes phone time with the non-live with parent as it happens to fall on Sunday, Tuesday and Thursday between 6pm and 7pm.
8.The children are at liberty to call the absent parent at any reasonable time and the parent with care of the children is to ensure the children have access to a working phone or other device.
9.The parent who does not have care is at liberty to call the children on their birthdays, special events such as Christmas and religious holidays.
10.The Father provides an undertaking to download any important events pertaining to the children including but not exclusive to, any medical appointments, school events, extra- curricular events, special occasion events within 24 hours of the appointment being made into the App Calendar.
11.The parties utilise a communication book to travel with the child for the purpose of updating the parent with care on topics including but not exclusive to:
(a)the children’s medication and instructions
(b)dietary changes/ requirements
(c)sleep patterns
(d)Commentary in relation to the health and wellbeing of the children.
12.The Mother is permitted to liaise directly with the child’s treating specialists/health care providers, and;
(a)The child’s treating specialists /health care providers are to provide to the Mother all communication and reports that are routinely provided to parents.
13.The Mother is entitled to liaise directly with the children’s school and obtain all reports and any other information whatsoever in relation to the children’s education and
(a)The Mother is entitled to attend any events such as but not exclusive to parent/ teacher interviews, sports events, carnivals that parents are invited to.
(b)The mother is to be listed on any enrolment forms that requests information in relation to the identity of the children’s parents.
14.The parties are to notify each other of any change of address, contact details (including phone number and email address) within 24 hours.
Restraints
15.The Parties are restrained from:
(a)Denigrating the other parent, in front of the child, or through any other form of social media and as far as they are able, stop any other person from denigrating the other parent in the presence of the child.
(b)Talking about these proceedings or providing a third person with material in relation to these proceedings unless specifically allowed by way of these orders.
(c)“Without admissions’ chastising the child physically in any form including ‘lawful chastisement’
16.In the event either parent wishes to change the orders before engaging in any further litigation they will engage in mediation with a Family Dispute resolution Practitioner licensed to practice in NSW and/ or Victoria and:
(a)The parties do all acts and all things to engage in the process at the request of the other parent.
(b)The parents share the costs of any mediation equally between them.
AND THE COURT NOTES THAT:
A.The first day of the holidays in term 4 commences after school or 4.00pm on the last day of term and the last day of the holiday is on the Sunday prior to the start of the new term at 5.00pm.
B.The mid-point of the holiday is the third Sunday after the commencement of the holidays at 5.00pm.
I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 14 February 2025
0
8
1