Cooke & Cooke - [2023] FedCFamC1F 25

Federal Circuit and Family Court of Australia
(DIVISION 1)
Cooke & Cooke [2023] FedCFamC1F 25

File number: SYC 4738 of 2020

Judgment of: REES J

Date of judgment: 31 January 2023

Catchwords: FAMILY LAW – PARENTING – Relocation – Where the father opposes the relocation proposal – Where the parties agree that the mother have sole parental responsibility – Parental conflict – Where the father’s communications with the mother has been offensive and derogatory – Where the father communicates with the children in a manner that is critical of the mother and the maternal family – Where it has not been established that the children have been exposed to family violence – Where the foremost consideration in the circumstances is the benefit to the children of having a meaningful relationship with both parents – A meaningful relationship is one which is important, significant and of consequence – Where the benefits to the mother of relocation would not outweigh the loss of the children’s meaningful relationship with their father – Where the father does not have the financial means to travel regularly to the United Kingdom as the mother proposes – Where the relocation would be a major disruption to the children’s lives – Expressed views of the children to remain in Australia – Application for relocation dismissed – Orders made for the children to spend time with the father each alternate weekend and for half of school holidays and on special occasions.

Legislation:
Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 60B, 60CC, 65DA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06

Cases cited:
Godfrey & Sanders [2007] FamCA 102

McCall & Clarke (2009) FLC 93-405

Moose & Moose (2008) FLC 93-375

U & U [2002] 211 CLR 238

Division: Division 1 First Instance

Number of paragraphs: 241

Date of hearing: 14, 15 & 16 December 2022

Place: Sydney

Counsel for the Applicant: Mr Todd

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr Havenstein

Solicitor for the Respondent: Galea And Faustin Solicitors

Counsel for the Independent Children's Lawyer: Mr Reeves

Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 4738 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS COOKE

Applicant

AND:
MR COOKE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

REES J

DATE OF ORDER:

31 January 2023

THE COURT ORDERS:
1.That all previous parenting Orders be discharged.

PARENTAL RESPONSIBILITY
2.That the mother shall have sole parental responsibility for the children X (born 2011), Y (born 2012) and Z (born 2017) (“the children”).
3.That the application of the mother to relocate the residence of the children to the United Kingdom is dismissed.
4.That prior to the mother’s making any long term decision in relation to the children, she shall:
(a)Notify the father, in writing, of the proposed decision and the reasons for the proposal;
(b)Invite the father's input and allow 28 days for him to advise of his views in writing;
(c)If a shorter time for response is required, the mother shall advise the father of that shorter time frame and the reasons why it is necessary;
(d)Take into consideration any views expressed by the father about the proposed decision; and
(e)Advise the father in writing of her decision within two days of making it.

5.That each parent shall have responsibility for the daily decisions about the care, welfare and development of the children whilst they are in that parent's care.

LIVE AND SPEND TIME WITH
6.That the children live with the mother.
7.That the children spend time with the father as follows:
(a)During the school term, from the conclusion of school or 2.45 pm on Thursday until Monday before school (or 9:30 am on a non-school day) each alternate weekend;
(b)During the Terms 1, 2 and 3 school holidays:
(i)In odd numbered years, from after school on the last day of school to 5:30 pm on the second Saturday.
(ii)In even numbered years, from 5:30 pm on the second Saturday to the commencement of school on the first day of the new school term.

(c)During the Term 4 school holidays, for one half of each New South Wales holiday period as agreed between the parties and failing agreement for the first half of all such holidays in 2023 and each alternate year thereafter and for the second half of all such holidays in 2024 and each alternate year thereafter.
(d)Any other time as agreed between the parties in writing.

8.That notwithstanding any other Order, and unless otherwise agreed by the parties in writing, the children shall spend time at Easter:
(a)In even numbered years the children shall spend time with the father from 10.00 am on Good Friday until 10.00 am on Easter Sunday;
(b)In even numbered years the children shall spend time with the mother from 10.00 am on Easter Sunday until 10.00 am the following Tuesday or commencement of school if it’s a school day;
(c)In odd numbered years the children shall spend time with the mother from 10.00 am on Good Friday until 10.00 am on Easter Sunday;
(d)In odd numbered years the children shall spend time with the father from 10.00 am on Easter Sunday until 10.00 am the following Tuesday or commencement of school if it’s a school day; then spend time with the parent whose allocated school holiday time it is.

SPECIAL OCCASIONS
9.That despite any other Order, on Mother's Day, the children shall spend time with the mother from 5.00 pm on the Saturday immediately preceding Mother's Day until 5.00 pm on Mother's Day.
10.That despite any other order, on Father's Day, the children shall spend time with the father from 5.00 pm on the Saturday immediately preceding Father's Day until 5.00 pm on Father's Day.
11.That despite any other Order, if the children are not already spending time with the mother on the mother's birthday, they shall spend time with her as follows:
(a)If the mother's birthday falls on a weekday, the children shall spend time with the mother from after school until 7.00 pm on her birthday; and
(b)If the mother's birthday falls on a weekend, the children shall spend time with the mother from 9.00 am until 7.00 pm on her birthday.

12.That despite any other Order, if the children are not already spending time with the father on the father's birthday, they shall spend time with him as follows:
(a)If the father's birthday falls on a weekday, the children shall spend time with the father from after school until 7.00 pm on his birthday; and
(b)If the father's birthday falls on a weekend, the children shall spend time with the father from 9.00 am until 7.00 pm on his birthday.

13.That notwithstanding any other Order, and unless otherwise agreed by the parties, the children shall spend time with the father on the children’s birthdays each year as follows:
(a)In every even numbered year, where the child’s birthday falls on a school day, from 5.00 pm the night preceding the child’s birthday until the commencement of school; and
(b)In every odd numbered year, where the child’s birthday falls on a school day, from the conclusion of school on the child’s birthday until the commencement of school the next day; and
(c)In every even numbered year, where the child’s birthday falls on a non-school day, from 5.00 pm the night preceding the child’s birthday until 2.00 pm on the child’s birthday; and
(d)In every odd numbered year, where the child’s birthday falls on a non-school day, from 2.00 pm on the child’s birthday until the commencement of school or 10.00 am the next day.

14.That notwithstanding any other Order, and unless otherwise agreed by the parties in writing, the children shall spend time with the mother on the children’s birthdays each year as follows:
(a)In every even numbered year, where the child’s birthday falls on a school day, from the conclusion of school on the child’s birthday until the commencement of school the next day; and
(b)In every odd numbered year, where the child’s birthday falls on a school day, from 5.00 pm the night preceding the child’s birthday until the commencement of school; and
(c)In every even numbered year, where the child’s birthday falls on a non-school day, from 2.00 pm on the child’s birthday until the commencement of school or 10.00 am the next day; and
(d)In every odd numbered year, where the child’s birthday falls on a non-school day, from 5.00 pm the night preceding the child’s birthday until 2.00 pm on the child’s birthday.

CHANGEOVER
15.That the father collect the children from school at the commencement of his time and return the children to school at the conclusion of his time on school days.
16.That the father collect the children from the mother's residence at the commencement of his time and return the children to the mother's residence at the conclusion of his time on non-school days.
17.That for the purposes of these Orders:
(a)School terms shall be referrable to the school at which the youngest child, Z attends;
(b)School holiday periods will commence on the conclusion of school on the last day of mandatory pupil attendance of a school term (or 3.00 pm if the child does not attend school on that day); and
(c)School holiday periods will end on the commencement of the first day of mandatory pupil attendance of the next school term (or 9.00 am if the child does not attend school on that day).

COMMUNICATION
18.That other than in the event of a medical emergency, the parties communicate only via the ‘Our Family Wizard’ application.
19.That while the children live with the mother, the children communicate with the father by telephone or live video (such as FaceTime or Skype) three times weekly:
(a)On Monday, Wednesday and Friday between 5.00 pm and 6.00 pm (in the children's time zone), and
(b)At any other time when the children wish to communicate with the father; and
(c)At such other times as agreed between the parties in writing.

20.That when the children spend time with the father under these orders, the mother may communicate with the children at the same times as the father does when the children are with the mother.

CONTACT DETAILS
21.That the mother and the father shall notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
22.That the mother and the father shall notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

RESTRAINTS
23.That each parent is restrained from discussing these proceedings (or any allegations made in the course of these proceedings) and making critical or derogatory remarks about the other party or members of the other party's family in the presence or within the hearing of any of the children.
24.That each parent shall do all things reasonably necessary to ensure that no other person discusses these proceedings (or any allegations made in the course of these proceedings) or make any critical or derogatory remarks about the other party or members of other party's family in the presence or within the hearing of any of the children.

PROVISION OF INFORMATION
25.That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.
26.That each parent is at liberty to attend at the children's schools or after school activity for the purposes of any function or activity normally attended by parents. These may include but not limited to weekend team sports or activities.
27.That the mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a)Either of the children has needed to consult a General Practitioner;
(b)Either of the children is admitted to hospital; and
(c)Either of the children is involved in a medical emergency.

28.That the father shall ensure that the mother is notified as soon as practicable if, while in his care:
(a)Either of the children has needed to consult a General Practitioner;
(b)Either of the children is admitted to hospital; and
(c)Either of the children is involved in a medical emergency.

PASSPORTS
29.That the mother and the father shall sign all documents necessary to apply for and/or renew each of the children's Australian passports within seven (7) days of either party issuing a written request to the other parent for the children's passports to be renewed, and the mother and the father will share equally the costs of all such renewals.
30.That for the purposes of s 11 of the Australian Passports Act 2005 (Cth), it is noted this Order permits each of the children to:
(a)Have an Australian travel document; and
(b)Travel internationally.

31.That subject to the Orders below, the children's passports shall be held by the mother.
32.That at least 21 days prior to the commencement of international travel by the children, the non-travelling parent shall provide the travelling parent with the children's passports, if they hold them.
33.That following any international travel, the father shall ensure that the children's passports are returned to the mother on the children's return to Australia.

OVERSEAS TRAVEL
34.That the mother and the father shall be permitted to travel overseas with the children during the time that the children are spending with her or him, unless otherwise agreed between the parties in writing, upon the condition that the parent intending to travel overseas with the children gives the other parent at least four (4) weeks' notice of his or her intention to travel overseas with the children (including the proposed destination/s) and that for the purpose of this Order the travelling parent shall:
(a)Provide the other parent with a booking confirmation for the children's travel showing the flights on which children will depart and return on no less than 14 days prior to the proposed travel;
(b)Provide the other parent with telephone contact details upon which the children can be contacted during the children's time with that parent during the overseas travel;
(c)Ensure that his or her mobile telephone is programmed to accept and make international calls during the period that he or she is overseas with the children; and
(d)Provide confirmation details of comprehensive travel insurance for each child including, comprehensive medevac cover for return to Sydney, Australia.

35.That during any international travel, the travelling parent shall ensure that the other parent is kept informed of the children's accommodation details as soon as practicable.
36.That the mother and the father shall do all acts and things and sign all documents necessary to apply for and obtain any necessary Visa to enable the children to travel overseas.

OTHER MATTERS
37.That in the event that either party seeks to vary or change these Orders or arrangements then the party wishing to change such arrangements shall, prior to filing any application with any Court, arrange mediation or counselling with a Family Relationships Centre or with a community based mediation/counselling service and each party shall attend such session and make a genuine and reasonable attempt to resolve any dispute before any application is filed.
38.That pursuant to s 62B of the Family Law Act1975 (Cth) (“the Act”), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
39.That pursuant to s 65DA(2) of the Act, 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 Fact Sheet, attached hereto and these particulars are included in these Orders.

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

Ms Cooke (“the mother”) and Mr Cooke (“the father”) met in Australia in 2006. The mother, who is from the United Kingdom, was in Australia as a student. The father, who was born in Country B, came to Australia in 1986. The father is an Australian citizen and the mother has permanent resident status.
They commenced co-habitation in Australia in 2007 and married in 2010.
They have three children, X who was born in the United Kingdom in 2011 and is now 11 years old; Y who was born in the United Kingdom in 2012 and is now 10 years old and Z who was born in Australia in 2017 and is six years old (“the children”).
The parents separated on 10 October 2019, initially remaining in the same home until the father left in early 2020. The mother and the children have remained living in the home.
The applications before the court related to both parenting and property. The parties were able to resolve the property issues by consent orders on the first day of the trial.
The mother sought orders permitting her to relocate the children’s residence to the United Kingdom. She seeks sole parental responsibility for the children’s living arrangements, education and medical care.
In the event that she is permitted to relocate the children, she proposed that the father have time with them for 14 days in the United Kingdom during the Christmas holidays; for 20 days in Australia during the UK summer holidays and for a further 21 days each year in the United Kingdom or Europe with the father meeting all the costs of the children’s travel and his own.
The father opposed the relocation proposal and sought that the children remain in Australia and live with each parent on a week about basis. He asked for equal shared parental responsibility.
The father’s position is that he will not move to the United Kingdom.
The Court was assisted by an Independent Children’s Lawyer (“ICL”) appointed for the children and by a report from a single expert, Mr C.
The matter was fixed for hearing in early March 2022 but the hearing was vacated due to circumstances beyond the control of the parties or the court. At the time the trial was fixed in March, the children contracted Covid-19. The mother moved out of the home so she could be available for the hearing and the mother’s sister and the children’s maternal grandfather remained to care for the children.

The hearing commenced on 14 December 2022.
After hearing the cross-examination of Mr C, the position of both parents changed and there was broad agreement about the appropriate arrangements for the children if they remain living in Australia, including an agreement that the mother have sole parental responsibility for them. The only issue for determination was whether the children should be relocated to the United Kingdom.
history
The parents commenced living together in Melbourne. The mother was not working when they commenced their relationship.
In 2010 they left Australia and moved to City D, living initially with the mother’s father, then in rented premises. The father sold an apartment and his share in a business and repatriated the funds to the United Kingdom.
The father was engaged in various business enterprises with varying degrees of success.
X was born in 2011.
Y was born in 2012.
By early 2016, the funds that the husband had repatriated to the United Kingdom were almost gone.
In early 2016 the wife commenced employment as an educator.
The parents started planning to move back to Australia.
They bought a house in Australia at Suburb E in F Region.
Z was born in 2017.
The father was engaged in various business enterprises in Australia.
In October 2019, the mother told the father that she wanted to separate from him. They separated on 10 October 2019 but remained living together in the Suburb E house.
In an email to the father on 14 November 2019 the mother proposed that she and the children move to City D.
In early 2020, the father left the Suburb E home and moved into rented premises. The mother and the children have lived in the Suburb E property until the time of the trial when Orders were made for that property to be sold and the proceeds divided.
At the time of the hearing, the children were spending time with the father on alternate weekends from Friday at 5.30 pm until 5.30 pm on Sunday, on Wednesday night and for alternate weeks during school holidays.
MATERIAL RELIED UPON
The mother relied upon a consolidated affidavit sworn by her on 16 November 2022; an updated Financial Statement sworn 11 November 2022; an affidavit of her father, Mr G, sworn 3 June 2021; an affidavit of her sister sworn 4 March 2022 and an affidavit of Dr H, a psychiatrist, sworn 8 November 2022. None of the mother's supporting witnesses was required for cross-examination.
The father relied upon an affidavit sworn by him on 22 February 2022 and an updating Financial Statement and an affidavit sworn by him on 6 December 2022. He also relied upon an affidavit of his current partner, Ms J sworn 5 December 2022. Ms J was not required for cross-examination.
The single expert, Mr C, prepared a report dated 14 September 2021 and was cross-examined.
THE EVIDENCE OF MR C
Mr C conducted interviews and prepared a report dated 14 September 2021.
In relation to his interview with the mother, Mr C reported:
9.[The mother] proposes that she returns to live, with the children, in the United Kingdom. Her primary reason for wishing to do so is to distance herself from [the father] – more specifically to distance herself from the ongoing stress of their conflicted relationship, which, she advises, is causing her considerable anxiety and panic attacks. She advised that she would feel more supported by family and friends in the United Kingdom and that the children have close friendships and family relationships in the United Kingdom.
Mr C noted that the mother proposed that the father have substantial time with the children if he were to move to the United Kingdom. The mother’s proposal for the time the children would spend with the father if they all lived in the United Kingdom, as enunciated in her Amended Initiating Application, is more generous than her proposal for time if they all live in Australia. In cross-examination, she conceded that the time should be the same, whether in the United Kingdom or Australia.
Mr C reported,
29.[The mother] said that [the father] was not physically abusive (in the sense of hitting her) but that nevertheless she felt “threatened and intimidated…he was goading me when we were separated under the same roof … it is the abuse you don't see is really hard… I doubted myself….” [The mother] described [the father] as “talking down to her in a patronising voice…I tried to make myself smaller (as in small target)… I appeased him to keep him happy… (but) I was walking on eggshells…”
Mr C reported,
17.With respect to the possibility of herself and the children remaining in Australia, [the mother] said, “if we all stay here, he is extremely adversarial… I am in constant flight mode…”. The writer observed to [the mother] that she refers to her having panic attacks. In response she said that she has never been diagnosed with depression or anxiety prior to separation (under the same roof). She observed that her panic attacks are triggered by, “relentless emails, messages… I get stressed… it is hard to relax”. The writer asked [the mother] to describe her symptoms with respect to panic attacks. In response she said, “I cannot concentrate, I worry, my stomach drops… (the last) panic attack was last week… I was shaky and breathing quickly… finance is a trigger… I am still on medication… it went up to 30 mg but (I get) brain fog…”
As to the mother’s mental health, Mr C stated,
31.[The mother] advised that, with respect to her management of her mental health, she is undertaking, “[various exercise], (I am) good at asking for help and no alcohol for one and a half years”. She added that she is seeing her GP regularly. She has seen a psychiatrist twice and her psychologist regularly.
The mother told Mr C that the children sometimes miss their father, particularly Y. Mr C stated at paragraph 38 of the report, “[the mother] advised that the subject children are not aware of her proposal that she would like to return, with them, to live in [City D]”.
It would seem, however, that the children were informed of the relocation proposal before they spoke to Mr C.
Mr C reported,
39.The writer invited [the mother] to describe [the father] as a parent. In response [s]he said, “before separation he did not do very much with the children but since then he has been a Disney Dad.”
The mother described their co-parenting relationship as “impossible”, saying,
41.…it is impossible… every (arrangement) we’ve had [the father] (breached)… he has broken Court Orders on many occasions (like) making derogatory comments about me… messaging outside the parenting app… (there is) no hope of it getting better….
The father agreed with the mother that they cannot co-parent. He described their communication to Mr C as, “not even civil… we just don’t talk. He indicated that there is much by the way of passive non-verbal aggression such as ‘growls on the face’”.
The father told Mr C,
67.[The mother] lacks empathy with my relationship with the children… if she goes to the UK she will shut down my relationship with the kids… the risk of cutting me off completely is high….
In relation to the mother’s allegations of family violence, the father said,
79.… she was never afraid of me… she was aggressive towards me… every time I tried to talk to her I got a legal letter that twisted the conversations (so) I just stopped talking.
The father denied the wife's specific allegations of violence.
The father told Mr C,
90.I cannot fathom life without my children… they would be absolutely horrified at the idea that they would go overseas and not see their father… (it) horrifies me… the answer would be very clear (if they were asked their preferences) and [Y] couldn't name any of his friends in [the United Kingdom].
Mr C interviewed X and Y separately. In relation to his interview with X, he reported,
92.[X] presented as a thoughtful, articulate and at first, quite shy young girl. It was noticed, however, that once she felt that the writer was ‘getting it’ in terms of her experience of her family context, she warmed up considerably and was able to express authentic thoughts and feelings. From the outset and, for the most part, [X] conveyed a sense of a young person who is by nature reflective and is trying to process challenging thoughts and feelings with respect to the demise of her family and, more recently, the prospect that she might be required to live at a distance from familiar people, activities and places.
93.[She] was relieved to be advised that she would not be expected to make a choice between her parents’ respective proposals with respect to her relocating to [the United Kingdom] or not.
Mr C discussed X's relationship with her parents. He stated,
96.When she is with her father, [X] likes, “hanging out in bed and reading and talking”. When asked what do they talk about, [she] said “school stuff… we go to the park a lot and play basketball…”. She said that [the father] does “join in”. In response to the writer's questions, [she] said that [the father] does tell Dad jokes and laughs at them. She evidently found this funny.
97.[X] advised that her siblings and her father play board games –including Monopoly, which [Y] had given to his father as a [F]athers’ [D]ay present.
98.[X] advised that, “with Mum we go for walks, garden, trampoline and swings and sometimes ‘Guess who’”.
Mr C reported,
100.The writer said to [X] that it was his understanding that she had recently been told that her mother would like herself and the children to go and live in [the United Kingdom]. [X] appeared to ‘tear up’ a little at this stage and gave the impression that she was trying hard to ‘keep it together’. She volunteered that she would, “miss my [pets]”.
101.The writer asked [X] to describe her reactions to the prospect of moving to live in [the United Kingdom]. In response she said, “I was shocked… got a bit upset… I don't want to go… I am nervous and confused… I would miss Dad…I would miss him a lot…”.
X told Mr C that she was having trouble sleeping. He stated,
103.… It was evident that this was because she ruminates about family issues and in particular the prospect of relocating to [the United Kingdom]. She indicated that her mother comforts her when she cannot sleep.
X told Mr C,
105.… She doesn't remember much about [the United Kingdom]… “I don't think I am close to any relatives in [the United Kingdom]… I talk to [Mr O] (paternal grandfather) on Zoom and to [Ms N] on Zoom… I don't know the cousins but I know most of their names”.
She told Mr C that she is “really close” to her paternal cousin who lives in Sydney.
Mr C reported,
109.The writer asked [X] to tell the writer about her “strongest feelings” with respect to the things we had talked about today. In response she said, “Seeing Grandpa… but much stronger feelings with Dad”.
X told Mr C that her father had told her, “… he would not see us very often and can't afford the plane and car and (couldn't have) a new job.”
Mr C asked Y about the possible move to the United Kingdom and reported,
113.When asked what it was like for him when he heard that it is possible he could move to live in [the United Kingdom] he answered the question as if it was about the separation. He said, “I felt sad and emotional… they separated last year… sometimes it is hard to talk about”.
Mr C stated,
114.The writer asked (having explained what sensations are) what sensations he experienced about the separation and the idea of moving to [the United Kingdom]. In response he gave quite an elaborate response that, as subsequently emerged, was a metaphorical device developed by [X]. It entailed his having books in his heart that were sometimes happy and sometimes sad and sometimes just about sorting out every day problems. He indicated that he liked thinking this way because he could manage one thing at a time.
Y went on to say that,
115.[The United Kingdom] would be a happy book because of happy memories… but I would mostly miss my Dad… I wouldn't see my Dad much… my Dad bought me a bike as an early birthday present… we are going on the weekend… we watch lots of videos because we don't have much time… (I would like) 50/50… I think my Dad keeps messaging to ask for more time… we hang out and chat about the separation and we (in answer to the writer's question about the content of [Y’s] conversations with his father) said, “we talk about the feelings”.
Y told Mr C that, “if he were upset, whoever I am with I tell them what I feel about it… my Dad taught me calming breathing… it makes me feel better”.
Mr C stated,
119.With respect to friends in [the United Kingdom], [Y] said, “I know I have more but all I remember is ‘[P]’ who lives in [K Town]… we have a collage (presumably of pictures of [K Town]) on the wall”.
Mr C reported that Y was looking forward to seeing his father on the day of the interviews, and noted,
124.The writer asked [Y] to say what he would wish for, if the writer had a magic wand and could give him three wishes. In response he said, “50/50”; “I want Mum and Dad to be happy and not go to Court”; and “we all have a great time together and (be friends)… they argue a bit…”.
Mr C observed the children with both parents. He stated,
127.[The mother] and the children were in an office adjacent to the waiting room when [the father] arrived. In order to access the writer’s (adjacent) office it was necessary for [the mother] and the children to walk through the waiting room. There was no acknowledgement of any sort between the children’s mother and father. The children filed into the writer’s office without acknowledging their father, except for furtive glances. The two oldest looked very self-conscious/uncomfortable.
Of his observation of the three children with their mother, Mr C stated,
130.Overall the interaction between family members was suggestive of a harmonious group who accept their mother's guidance and authority. [The mother] indicated that the children do, on occasion, squabble as would be normal.
Similarly, in relation to his observation of the children with their father, he stated,
135.As with their mother, and for the most part, the interactions between family members was suggestive of a harmonious group in which the children accept their father's authority and guidance.
Mr C explored with both parents the “nature and intensity” of the conflict between them. He stated,
136.Both confirmed that their conflict is not expressed in an overtly hostile manner (such as, physicality, raised voices, insults or verbal threats). They also both confirmed that changeovers, which take place in supermarket car park, are characterised by unspoken tension and what the writer understood to be scowling and what had been described as low growling.
137.[The mother] does not believe that the tension between them would abate over time. [The father] though not optimistic, thought it possible that the tension would abate over time when the current proceedings have concluded, and that, in any event, changeovers would be better executed at school without the parents being together.
Under the heading “Evaluation”, Mr C set out the parents' respective positions,
138.[The mother's] position is that the children would be better off if they were to be living in [the United Kingdom], where they and she would have the emotional, physical and financial support of her father and her large extended family. She also contends that, if she were to relocate to [the United Kingdom]: her anxiety and panic attacks would abate because the conflict between herself and [the father] would diminish; and the children would not be exposed to parental conflict and tension as they are at present. She also contends that she would be better able to focus on the children's needs because she would be less distracted by the tension between herself and [the father].
139.[The father's] position is that it would be unthinkable for him not to be a part of the children's lives. He is asking for the children to remain living in Australia and for them to spend more time with him. He contends that [the mother] would not foster his relationship with the children and that therefore he would effectively ‘lose them’ in so far as his having a meaningful and close relationship with them.
Mr C assessed their positions in the following way,
140.The writer came to view, as is often the case in relocation matters, (in the absence of clear cut and current family violence risk factors) that there is merit in each parent's position. It is suggested therefore that the children are in a ‘no win’ position. If they remain living in Australia they would be able to continue and further develop their relationship with their father and experience stability and continuity with respect to peer relationships, the school environment and their community. They would however continue to be exposed to the tension between their parents. If they were to relocate with their mother to [the United Kingdom], the probability is that their exposure to the tension between the parents (as occurs now on transfers) would diminish somewhat, and their mother, their primary carer and hitherto primary attachment figure, would be less anxious. They would be likely, however, to experience a sense of loss, particularly with respect to their father, but also with respect to their broader and familiar physical and relational environment.
As to the position of the children he stated,
141.Both [X] and [Y] expressed a view that they would prefer to remain living where they are and that they would miss their father. Several factors seem to underpin their views in this regard. First and foremost, they both emphasised that they anticipate missing their father. They seemed to have genuine affection for him and take pleasure in his company. [The mother] is of the view that he has “stepped up” since the separation and has been something of a “Disneyland Dad” since that time. Irrespective of the accuracy or otherwise of this perspective, the children's current reality is that they feel close to their father and want him substantially in their lives. It is noted that [the father], as indicated by the conversations that [Y] reported, has talked to the children – or at least [Y] – about the diminished relationship that he would have with the children if they were to be relocated to [the United Kingdom]. It is highly likely that such conversations would have coloured the children's comments to the report writer. Nevertheless, it is evident that the children's affection for their father is basically authentic.
142.It is noted that the children had only very recently been informed of the proposed relocation. They have not had time to process this information and their immediate reaction would, understandably, be one of alarm and experienced as a major disruption to their current experienced reality. This is particularly so, given that each of the children has yet to come to terms with the demise of their family – and therefore the prospect of further major change would be highly accentuated. Children who have experienced separation need to retain as much continuity and predictability as possible. It is noted that the children have now spent five years in the same home, community and school environment.
In relation to X, Mr C wrote,
143.[X] seemed to the writer to be the most sensitive and least secure/confident of the three children. She conveys a sense of sadness, at least when discussing family issues. She is at a notoriously difficult developmental stage in terms of feeling ‘good enough’ in the context of peer relationships. As happens at this developmental stage, children who are less emotionally robust tend to be targeted in the context of peer relationships as seems to be happening to [X]. Additionally, based on these interviews and observations – [X] is more introspective and less outgoing than her siblings. The writer is of the view that [X] would find the challenges entailed in a major change to her relational and community context (both local and school) particularly unsettling. Her description of her bed time conversations with her father suggest that she is seeking to have a special relationship with him – perhaps in some contrast, comparatively, to her previous experience of him, if [the mother's] view, that [the father] has “stepped up” following separation, is accepted.

As to Y's views, Mr C said,
144.[Y], is a more outgoing and socially confident child than is his sister. Nevertheless, this does not necessarily mean that he is coping any better with family issues – even though he might appear to do so. He has not yet processed the demise of the family and would therefore, like his sister, be averse to further major change. [Y’s] view that he wants “50/50” seemed to the writer to reflect a need to ‘make things fair’ – a common perspective for children of his age, who are highly aware of their parents' conflict. His father has also highlighted to him that relocation to [the United Kingdom] would diminish their relationship – probably precipitating in him a need to ‘look after his father’. Irrespective of these perspectives. [Y’s] affection for his father is genuine as is his pleasure in his father's engagement with him.
Specifically in relation to the father/son relationship, Mr C stated,
145.It is noted that the unique value of same gender parent/child relationships is not universally accepted. Nevertheless, the writer is of the view that the absence of a father from a boy's life during the latter's formative years, can be particularly impactful in terms of the child's developmental (particularly exploratory needs) and identity needs. It is noted that, in this regard, [Y] takes particular delight in active, adventurous interactions with his father. It is also noted that [Y] said, as one of three wishes, that he wants to spend more time with his father. This statement is likely to be rather more authentic than his expressed wish for “50/50”.
In relation to Z, Mr C stated,
146.[Z] is clearly firmly attached to both parents. It is noted that she is described as rather clingy on reunion and separation. This suggests that the parents' separation and the challenges of transfers are impacting on her. The writer is of the view that (as usually applies to younger children) [Z] would manage the absence of one parent provided she is cared for by at least one adult with whom she has a secure enough attachment, in the context of which, her emotional needs can be met. The more pressing issue with respect to [Z] is that, given her age, she is more dependant on regular predictable interactions with parents in order to maintain attachments. In part this is because long term, self-sufficient memory establishment, is underdeveloped in the pre-school years.
Mr C concluded,
153.As previously mentioned each of the parents' proposals are significantly problematic in terms of long term psychological/emotional outcomes for the children. What is more certain, is that the subject children – particularly [X] and [Y], in the shorter term, would find further disruption to their status quo, unsettling and anxiety inducing at the least, as they are still recovering from the parents' separation and the demise of their family.
154.With respect to [Z] her attachment to her father would be likely to fade over time as, at her age, attachment development and maintenance depend on reasonably regular person to person interaction.
Mr C recommended that, if the children stay in Australia, they spend alternate weekends with the father from after school on Thursday until Monday morning and half of each school holiday period.
Mr C also recommended that the father complete the Circle of Security course. The father ignored that recommendation.
The evidence of Dr H
Dr H was the mother’s treating psychiatrist.
He swore an affidavit on 8 November 2022 in which he deposed that he had seen the mother on three occasions, being late 2020, early 2021 and early 2022 and he prepared three letters to her general practitioner dated late 2020, mid-2021 and early 2022.
In his letter dated late 2020, Dr H reports that the mother was depressed although he does not appear to make a formal diagnosis. He recommended that the dose of her antidepressant be increased and that she complete some screening tests.
In his second letter, Dr H reports that the mother “was continuing to feel depressed but less so” and that “She stated that she felt better is [sic] she met someone who makes her feel more empowered and during exercise”.
In his third letter, Dr H states that his diagnosis is that the mother has a Major Depressive Disorder and notes that her dosage of anti-depressant has been reduced.
Dr H has not seen the mother since early 2022.
I accept that, as she told Dr H, the mother’s current situation leads to her feeling depressed. However, Dr H does not opine that her symptoms affect her ability to be an effective parent to the children. He proffers no opinion on whether moving to the United Kingdom will alleviate the mother’s depression or the effect on her if she is not permitted to move with the children.
THE MOTHER’S REASONS FOR MOVING TO THE UNITED KINGDOM
The mother is not required to demonstrate that she has sound reasons for her wish to live in the United Kingdom but the assessment of the benefits which might flow to her and thence to the children if she moves is a part of the assessment of the overall best interests of the children.
Mr C reported,
9.[The mother] proposes that she returns to live, with the children, in the United Kingdom. Her primary reason for wishing to do so is to distance herself from [the father] – more specifically to distance herself from the ongoing stress of their conflicted relationship, which, she advises, is causing her considerable anxiety and panic attacks. She advised that she would feel more supported by family and friends in the United Kingdom and that the children have close friendships and family relationships in the United Kingdom.
That evidence was not challenged and I accept that the mother’s primary reason for moving to the United Kingdom is to distance herself from the father. I accept the evidence of the mother that the father’s behaviour towards her causes her to have anxiety and that the symptoms she described to Mr C were accepted by him as consistent with her having panic attacks.
I also accept that the mother feels isolated from her family but it is inconsistent for her to assert that her isolation from her family needs to be addressed by being close to them whereas the children’s isolation from their father can be addressed by their having electronic contact with him and seeing him for holidays.
The mother will be able to visit her family in the United Kingdom and her evidence is that her father, particularly, visits her in Australia for about two months at a time. He has been to Australia twice in 2022 for extended visits.
The mother gave evidence that she has close friends upon whom she can rely and who assist with child care where needed.
At the present time, the mother works as an educator for three days each week, earning $426 per week. She expects that employment to continue in 2023. Her intention is to gain further qualifications.
She has completed one semester of external study at L University. Although she has not enquired whether she can resume those studies, there is no reason to assume that she cannot do so. If she were to resume her studies in 2023, her evidence is that she would complete the course in 18 months, including any necessary practical teaching sessions and thus would be qualified in mid-2024.
It is her evidence that, if she moves to the United Kingdom, she could study part-time and obtain a qualification over two years and then engage in employment. There is no evidence about the course requirements, availability or costs of the course but I accept that she could be qualified for employment in two years.
In the alternate, she proposes a course of study where students are paid a salary to work in the industry but there is no evidence about how much she would be paid or what her qualifications would be when the course has been completed.
There is no evidence of educator salaries in the United Kingdom.
The maternal grandfather has offered to accommodate the mother and the children in his home and proposes to charge her rent of £166 per week. He will also provide her with a car.
I accept that the mother’s financial position will be better in the short term while she lives with her father and obtains her qualification. I am unable to find that her financial position will be better in the long term in the United Kingdom than her position would be if she remained in Australia and worked as an educator.
THE father’S rEASONS FOR REMAINING IN AUSTRALIA
In U & U [2002] 211 CLR 238 Gaudron J said, in relation to an application to relocate to India,
[35]Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
Hayne J said:
[175]When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
[176]It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
(Footnotes omitted)
The husband deposed,
124.… The salary I receive from [his then employer] is AUD$80,000 PA or £42,000, which is just above the average [City D] salary of £39,710. I made a budget and researched accommodation in [Suburb M, City D]. If I were to continue my current work in [City D], I could afford a tiny 1-bedroom apartment or perhaps a 2 bedroom apartment in a counsel estate. But only if I accepted 50% of my income going to accommodation. After childcare and utility expenses, my weekly budget to live would be £200, with nothing left for the children, take them on holidays and be the dad I can be in Australia with them living here.
125.Half of my monthly income would be £1750 or AUD$3,237. [An online property website] shows 25 available properties in [Suburb M] in this price bracket with just 4 options to rent a 2 bedroom and the other 21 available rentals are 1 bedroom apartments. None had outdoor space, a balcony, off-street parking, or an adequate living area for three children. Note, my current rent is AUD$1,803 per month, which means I would have to accept an increase of 79% in costs (just for accommodation) to live in [City D] while sacrificing accommodation plus all the benefits of raising a family [in F Region] of Australia. Therefore, financially it is impossible for me to “follow [the mother] to [City D]” and that is before taking into account the immense mental health consequences that I would suffer living alone in a 1-bedroom apartment for the next 10 years in a forced servitude relationship with [the mother] and her family.
126.In the devastating event that the children are ordered to relocate to the UK, there would need to be a solid agreement in place whereby the children can see their dad as often as possible in person and in Australia. This is their home, the place they know best, where we can spend time with their cousins and family, their school friends and enjoy the benefits and lifestyle that they cannot experience in the UK the rest of the year. I would need a great deal of financial support to allow the children visitation to Australia, throughout each year, until [Z] reached 18 years of age.
The father deposed, in his updating affidavit, that his income is now $100,000 per annum.
In cross-examination, the father said that he had lost contact with former business contacts in City D and that his one remaining contact has no jobs available in the United Kingdom.
He said that he was granted permanent residence in the United Kingdom when he was living there but that status was reliant on his being the spouse of a citizen of the United Kingdom. The visa had to be renewed every five years and he has not renewed the visa which expired, I assume in 2021.
There is no evidence that the father would be able to live permanently in the United Kingdom.
consideration
This is a matter where the primary considerations, set out in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) come starkly to the fore.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Whilst the relationship between the parents, from the time of the breakdown of their relationship until the present, has been one of conflict, I find, as is explained below, that it has not been established that the children have been exposed to family violence. There is no suggestion that they have been abused or neglected.
It is therefore necessary, when considering what Orders are in the children’s best interests, to have foremost the consideration of the benefit to them of maintaining a relationship with both of their parents.
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 and Y have told Mr C that they wish to remain in Australia. Y wants more time with his father. Y has told his mother that he does not want to leave his school.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
I accept the evidence of Mr C that the children have a close and loving relationship with each of their parents.
Only X spoke to Mr C about the maternal grandfather whom she clearly loves but she told Mr C that her feelings for her father were “much stronger”. Y described his maternal grandfather as “kind and generous” and said “we call Grandad a lot”.
Although the mother stressed the close and loving relationships that the children have with the extended maternal family in the United Kingdom, that was not the children’s perception as relayed to Mr C.
X told Mr C that she didn’t know her cousins although she knew their names. She told Mr C that she talks to her aunt Ms N and to her maternal grandfather on Zoom but did not mention communication with any other member of the maternal family. By contrast, X told Mr C that she is “really close” to her cousin who lives in Sydney.
Y told Mr C about visiting cousins in Sydney and spoke of talking to his cousin in the United Kingdom on Zoom.
Nothing in Mr C’s report of his interviews with the children suggests that the children have a close relationship with the mother’s siblings and their partners or their cousins in the United Kingdom, which is consistent with the fact that the children have lived in Australia since 2016 and have, since that time, spent little time with the extended maternal family, other than their maternal grandfather.
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
There is no dispute that the father has taken every opportunity to spend time with the children. However, he has not, consistently participated in communication with the mother about matters concerning the children as will be more fully explained later in these reasons.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father has paid child support as assessed.
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 or her 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
The children are all settled at school. The older children have formed friendships which are important to them. X has been elected school captain for 2023. It is not in dispute that they would miss their friends and their school community.
X told Mr C that she doesn’t remember much about the United Kingdom and she didn’t think she had any close relatives in the United Kingdom. It is unlikely that Y has any more recollection of living in the United Kingdom. Z has never lived there.
The mother told Mr C that Y misses his father. It is not in dispute that Y wants to spend more time with his father.
Mr C, in his report, stated that the children would experience relocation as “a major disruption to their current experienced reality”. He stated,
142.This is particularly so, given that each of the children has yet to come to terms with the demise of their family – and therefore the prospect of further major change would be highly accentuated. Children who have experienced separation need to retain as much continuity and predictability as possible. It is noted that the children have now spent five years in the same home, community and school environment.
Mr C said, and I accept, that X, who is more introspective and less outgoing than her siblings would find such a major change “particularly unsettling”. Mr C said that Y would also be “averse to further major change”.
Asked by the ICL about the effect on the children of losing their present connection with their father, Mr C said,
Loss particularly in the sense of being able to be actively involved in their lives to the degree that the father and the children can connect in a real, immediate way in and around, you know, the activities that they do on a weekend, maybe a little bit of homework, but it’s – the issue with relocation is that immediacy of the relationship is lost and the children would miss that, but it’s also loss in the sense of – this is too strong a word, but you will know what I mean, is the loss in the sense of the absence of a person. There is loss in that regard, as well, which can only be partially compensated for by the use of Zoom or similar.

Mr C said that electronic communication could not replace the reality of the children’s seeing their father every alternate weekend and that even day to day electronic interaction with their father would not supplement the fact that the children want their father to be substantially in their lives.
Mr C said that the need for effective communication would be greater if the children lived in the United Kingdom. He said,
Well… from the perspective of the father, in the absence of being in the community that the children are in and being that far away, there would need to be, particularly on the mother’s part, a real big effort to make sure that he’s kept in touch with all aspects of their lives, which means, self-evidently, good communication, initiated, particularly, by, in this case, [the mother], if the father were to be in Australia and she were to be in [the United Kingdom].
Of significance is Mr C’s evidence, which I accept, to the effect that Z’s relationship with her farther is not sufficiently developed to sustain separation from him. Mr C, in his report, stated,
146.The more pressing issue with respect to Z is that, given her age, she is more dependant on regular predictable interactions with parents in order to maintain attachments. In part this is because long term, self-sufficient memory establishment, is underdeveloped in the pre-school years.
One of the matters to be considered is whether, if the children are removed from Australia and living in the United Kingdom, the mother and, to a lesser extent, members of her extended family, will foster their relationship with their father.
I accept that the mother has found it difficult to cope with the father’s behaviour which he, himself, acknowledged in cross-examination, to have been highly inappropriate on occasions, particularly in his communication with her. However, there is not a scintilla of positive evidence about the father in the mother’s affidavit or in the affidavits of her father and sister.
The tenor of the mother’s evidence, both in her affidavit and in her oral evidence, was unrelentingly critical of the husband. Mr C said, and I accept,
I think central to this is does she have a loving relationship with the children sufficient to focus on their needs in this regard, their needs to be in touch with and maintain a relationship to the degree possible with their father. I think she would do that.
The evidence does not allow me to make a similar finding in relation to the attitude of the extended maternal family.
I have no doubt that, subject to her financial position as will later be discussed, she would comply with any order for the children to spend time with their father.
Whilst I accept that there might be benefits to the mother from a change of residence to the United Kingdom, it is difficult to see how the children will benefit. I do not accept that the fact that their mother may be happier is a sufficient compensation for the losses that the children will suffer.
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
If the children were living in the United Kingdom and the father in Australia, the cost of maintaining face to face contact between them would be high. The mother does not propose that she would make any contribution to those costs other than that, if she brings the children to Australia to spend time with him, she will pay her own costs of the travel. Thus the father will be expected to pay for the three children’s airfares to and from Australia each year and, for two other periods in each year, for his own fares to the United Kingdom and for the cost of accommodating himself and the children and entertaining them in the United Kingdom.
Having regard to the present financial circumstances of each of the parents, I am not persuaded that it is financially viable for the father to pay those costs. Neither am I persuaded that the mother will be in a position to travel to Australia and accommodate herself here for the summer period which she proposes. She gave no evidence about how that would be achieved. Whether she may be able to do so in the future is a matter for speculation.
The net value of the matrimonial asset pool is modest and the consent orders provide for the mother to receive about $475,000 from the sale of their former home.
The father will receive about $240,000 and he has incurred legal fees in relation to these proceedings which, according to the costs notice filed pursuant to r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) costs remain unpaid in the sum of about $180,000. He will be left with about $60,000, assuming that he has no other debts.
The father is currently earning $100,000 per annum. He is entitled to four weeks’ holiday leave each year.
I am not satisfied that the mother’s proposal for the children to spend time with their father in the United Kingdom for 14 days during the winter school holidays; for 20 days in Australia during the summer school holidays and for a further 21 days in the United Kingdom or Europe, at the father’s expense, is either practicable or achievable.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied that the mother, under sore provocation from the father’s style of communication with her, has endeavoured to shield the children from the effects of the parental conflict and the dispute over relocation.
Further, except on a few occasions, she has been able to shield the children from her own distress at the situation in which she finds herself.
The father, on the other hand, as is explained below, has made little or no effort to conceal from the children his anger and distrust of their mother and to undermine their relationship with her.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I propose to deal here with the evidence about the father’s behaviour since separation. It is not possible to deal here with every incident of which there is evidence but the ones set out are sufficient to illustrate the father’s inappropriate behaviour and attitude.
I accept that the father has been very angry about the mother’s proposal to remove the children to the United Kingdom and that reaction is not unreasonable. However, the manner in which he has expressed his anger and his involvement of the children in his anger has been both highly inappropriate and unacceptable.
The father has, on occasion, lied to the mother and to the children’s school. He was unable to explain why he did this. As with all of the other inappropriate communications to which the father was taken in cross-examination, his only explanation was that he was angry.
I cannot accept his evidence that, within the few weeks before the hearing, he suddenly gained insight into his behaviour as a result of two consultations with his general practitioner. His behaviour has been both consistent and persistent since separation.
His communications with the mother have been offensive and derogatory. His communications with the children have been directed to undermining their relationship with their mother and their trust in her and her family.
An examination of his past behaviour leads to the conclusion that his future behaviour will be no different and it is likely that he will continue to communicate with the children, if they live in the United Kingdom, in the same way as he has in the past.
The father demonstrates a willingness to attribute bad faith to the mother, which is not objectively evident, whilst being oblivious of the entirely inappropriate nature of his own behaviour.
In late 2019, the father received $50,000 from the insurer of the conveyancer who acted for them on the purchase of their home. The conveyancer did not tell them that the mother’s portion of the transaction would incur additional stamp duty at a higher rate because she was a non-citizen. A further $50,000 had been levied. The mother insisted that the funds be paid to the Office of State Revenue. The father wanted to retain the funds. He transferred the first tranche of funds on the mother’s insistence in late 2018 with the description in the bank statement, “[Ms Cooke] is A Cunt”.
On 19 August 2020, an order was made in the following terms:
That other than in the event of a medical emergency, the parties communicate only via the “My Family Wizard” application.
The application, “Our Family Wizard” (“OFW”) was installed by both of them. One of the features of OFW is that it shows each user when the other logs into the application and it also shows when a message is opened and read.
The mother deposed that, in early 2021, on changeover, Z left her blanket in the father’s car. The mother asked the father to pass Z’s blanket to her. The father said to X, “your mother has caused me not to get the blanket for [Z]” and drove off. The father in cross-examination said he did not remember that incident. I accept that it happened as the mother deposed.
A few days later, X told her counsellor, “… sometimes daddy says things about mummy that isn’t true like she always says no and she isn’t a good person”.
The next month the parents argued at changeover. The mother deposed that she asked the father not to talk to her in that manner and he replied, “sorry, I can say whatever I want to you”. The father in cross-examination agreed he said “something like that”.
Before the children were interviewed by Mr C, there was correspondence between the legal representatives about how the children should be told of the relocation proposal. The father’s position, conveyed in a letter from his solicitor dated 3 September 2021, was that the mother should say to the children,
Children, mum is wishing to relocate to [the United Kingdom] with you and if this happens dad will be seeing you very rarely and will be missing on opportunities to see you grow and thrive. So dad would prefer to have you in Australia.
In cross-examination, the father said that he thought that form of words was objective.
In late 2020, the father messaged that he had “spent a few hours unravelling the coaching they had received around ‘choosing sides’…”
In late 2020, the children were with the father for holidays. The mother attempted to contact then to speak to them but was not successful. The father did not answer her calls. He agreed in cross-examination that, on occasions when the children are with him, he does not answer the mother’s calls. He agreed that it was possible that he had not answered her calls for three consecutive days. A few days later the mother asked the police to do a welfare check. The father messaged her,
What lengths are you prepared to go to “win” the most childish wins. It makes me very afraid for what you will do next in your endless pursuit to destroy my life and control my access to my own children.
In early 2021, the father messaged,
Don’t worry, your lies to the children about how you are trying to destroy their relationship with their father is safe so you are free to carry on without fear of them finding out.
In early 2021, the father sent a WhatsApp message to the mother on her mobile phone, asking her to drop the children at his apartment as his car had broken down. She replied, “I have responded to this message on OFW app” and he replied “I deleted the App. Yes/No please This is an emergency situation”. She then emailed him to say she would drop the children to his apartment. As she neared the father’s apartment, the father emailed the mother,
My girlfriend has picked me up and this is exactly why I have given up cooperating with you.
In cross-examination, the father was unable to say why he refused to use OFW on that occasion. He agreed that there was no reason not to use OFW and said that he had not, in fact deleted the App as he told the mother.
In late 2021, the school noted that “[the father] also advised that the court date will be held in March 2022 where all children will have to attend and take the stand”. The father in cross-examination conceded that he had said that to the school and that he was always aware that the children would not give evidence.
The father was opposed to Z starting school in 2022. He messaged the mother,
Absolutely not, I refuse to consent for this to happen and should you continue along this line I will seek court orders to stop you.
…
If you are not capable, I’m looking after her next year, which is the only reason you want to throw her into school before she is ready, then I’ll take care of her five days a week if need be. But like all matters I suspect that you will refuse as you always do.
Again I want to be clear. If you continue forward in this manner refused to look after [Z] and instead wish to enrol her into primary school against the recommendation of her pre-school I will seek court orders to stop you.
Ultimately, after seeking professional advice, the parents agreed that Z should start school and she has successfully attended kindergarten in 2022.
On a date in early 2022, at 8.38 am, the mother sent a message to the father stating that she would like to have the children vaccinated against Covid-19.
The father replied at 10.08 am,
As I have said to you before, I am opposed to having the children vaccinated for Covid. There are many peer reviewed studies showing they are 6x more likely to be hospitalized from a vaccine injury than from Covid.
On that basis, I consider it a form of child abuse. It is not mandatory either
I will oppose and fight any moves you make to do this to the fullest extent. I have just had Covid and recovered fully within 3 days. I have now long lasting antibodies, better than any artificial antibodies from any vaccine.
…
I place you on notice to not make any arrangements towards forcing a non essential, non mandatory medical procedure on the children. I find your thinking to be irresponsible and downright foolish.
(As per the original)
At 10.07 pm, the mother messaged the father, indicating that health guidelines had been updated to allow the vaccination of the children against Covid-19 and outlining her reasons for suggesting that the children be vaccinated.
At 12.08 pm the next day the father replied,
There is only one reason you want to inject our children, and that is for your father who is isolating in your home in fear of our children, and for you to get a green stamp ready to go to the UK. It has nothing to do with the health of our children.
Over my dead body will I allow it, and I look forward to our trial in March to reveal and unravel the truth about you and your family what you have done for your self interests – this is no different.
As far as I am concerned this conversation is over…
(As per the original)
The following month, the mother messaged the father saying that Z was ill and had tested positive for Covid-19. She told the father that she had decided to self-isolate, because the hearing of these applications was to start the following week, and that her sister, Ms N, had arrived from the United Kingdom and would care for the children.
The father responded,
I can’t believe you abandoned our children for a week. Why on earth would you do that to the children when they are already feeling trauma at the aspect of losing a father?
Let me guess… you chose your family’s self interests over your children, yet again. I feel sick.
I will be picking them up at 5.30 pm on Wednesday. I will be calling the children during the day as well to check on them.
Later that evening, the father messaged the children each minute from 4.57 pm until he received a message saying that they were making pizza and would call back. He responded “I want to speak with the children I will continue to call until they answer.” At 7.45 pm he messaged the children,
Please keep the iPad close as I will call you
Please know your dad is here for you always
Love you so much
And take extra care of [Z] now that you are alone
(As per the original)
On the same day, the father spoke to the children using Google Hangouts. The mother’s sister, who was looking after the children, deposed that she heard the father ask the children where their mother was. She deposed that the father said to the children,
She has abandoned you when you needed her most. I can’t believe she has done that… she does not want to get Covid as she has court next week and that her priority should have been you. I would never leave you like this… why did your mother have the vaccine if she is so scared about getting Covid! I can’t believe she left you with [Ms N]! Did you know that the [maternal family] are trying to take you away from me and I will never let that happen, they are absolute monsters!
(As per the original)
Ms N deposed that, later in the conversation, the father said,
Take the iPad to bed with you and call me whenever you want. As mummy has left you, I need to be here for you all the time – there are no rules this week.
Ms N deposed that, later that night, X spoke to her mother who phoned to say goodnight and said “Mummy, why did you abandon us?”
The next day, the father spoke to X and said,
I need to keep checking in on you as you’re there with someone you don’t really know.
He then asked for Z and Y and said to all three children,
The reason [Ms N] is there is to take you back to [the United Kingdom], her and [the maternal grandfather] are planning on doing that. There are people out there who are liars and that is the [maternal family] and you need to know that.
Later the father said,
That is the reason you don’t need to get the vaccine and put those poisons in your body. Your mother has had the vaccine and now she is scared and has abandoned you.
Annexed to Ms N’s affidavit is the record of the father’s further attempts to contact the children.
The father then engaged in an exchange of messages with X, telling her to “Call me when you are allowed by [Ms N] to call me”. X responded saying “Seriously? I know what that means. I am not stupid”. The father sent a picture of a witch to X and acknowledged in cross-examination that he intended for X to understand that her aunt was a witch. He also acknowledged that he intended X to believe that her aunt was inappropriately controlling her communication with her father. X’s response was immediately placatory to her father.
On 4 March 2022, Ms N swore an affidavit in the proceedings deposing, inter alia, to the father’s communication with the children as set out above. On 6 March 2022, he messaged X that “[Ms N] wrote me a 50 page letter today” asking X to “thank her” for him.
In cross-examination, the father said that his actions on that night were “Beyond awful” but offered as his excuse that he was extremely distressed at the time.
The father continued to send messages to the children. By mid-week, all three children had Covid-19. At 5.30 pm the father messaged the children saying that he was outside waiting for them. Ms N told the father that the children were not able to leave the home. He messaged the children, starting at 9.34 pm:
I am angry that your mother and [Ms N] are stopping me from seeing you today and stopping me from speaking with you
I am your father
I love you
And I want to hug and hold you and see you
And I hate that others are taking that from me and you
I miss you terribly
It’s so sad what is happening
I just want to see you
And they won’t let me
I’m so [upset?]
I’m sorry for all of this
I love you
Very much
(As per the original)
The children replied “That’s okay”.
Later he messaged,
I am crying (crying emoji) because I want to see you
I miss you
And later the father messaged,
I had a really nice dinner planned for tonight
And a movie
(As per the original)
The children replied, “That makes me sad”. The father messaged “I will really miss you” and the children responded “Thinking about it [sic] you being sad”.

The next day the father messaged,
I am fighting for us all to be together!
The messages continued. The father messaged,
Why can’t you guys hear the iPad ring? Has [Ms N] buried in the study again?
This is incredibly frustrating. This is three days in a row that I cannot contact you
(As per the original)
A child immediately replied “Hi I’m here”. The father responded,
[Ms N] is stopping you from speaking with me
The iPad is not in the kitchen
It’s locked in the study where you cannot hear it
[Ms N] promised me she would not do that
And then she did
In my book
That is a lie
You know… I do not like liars
(As per the original)
A child responded “…still talk to you”.
The following day the father messaged “Your mother tells me that she spies on all our conversations here”.
In 2022, when X turned 11 years of age, the father arranged for her to have her ears pierced. He was well aware that the mother did not agree and that the mother had told X that she could have her ears pierced when she was 12.
In mid-2022, the mother messaged the father, asking him not to leave the children at his home unattended. She also said,
[Y] mentioned that you asked him to check the post for you. If there is something that you are looking for, then we have OFW to discuss matters like this, rather than use the children as messengers to check things for you. You might like to change the registration of your driving license [sic] to your current address…
The father replied,
Although I take your comments seriously, I remind you that while the children are in my care, I am their father and will parent as I see fit as is my right to do so. There are many steps and safeguards that I have implemented to ensure their utmost safety at all times. My judgement is sound and when the children are in my care, I have absolute authority as a parent equal to you. Please don’t forget that, you have not yet successfully stripped me of my parenting rights as you so desperately want
There are many things that I do not agree with in regards to how you parent, namely attempting to forcibly remove the children from their school, friends, family and father to live in a cold terrace house in the worlds highest crime city across the world, and perhaps worst of all spending the children’s entire inheritance in the process of doing so. Money that ought to go to their education and future. not lawyers!
But, that is [sic] is your right to do so too, and from all accounts you are proud of what you have done, refuse to mediate and continue with your strategy of conflict to achieve your goal. Call me crazy, but I feel one of these items is a mountain and the other an ant hill.
Because you feel entitled to lecture me on matters of minute proportions, I feel compelled to defend myself, as is always the case with your messages which seem to have no purpose other than to record allegations for your court proceedings.
I called [Y] yesterday because it was an emergency. I understand it’s delicious fodder for you to pounce on and accuse me of “breaching orders” etc… please get some perspective that life does happen sometimes and not everything revolves around your court case.
I was on the […] freeway and was pulled over by the police who told me my car was unregistered. It was an oversight on my behalf because I did not receive the registration papers in the mail. I was not allowed to proceed until I paid the CTP and registration online. I was stuck for an hour trying to do so but needed a copy of the registration form that would should have been mailed to me. I never received it at my house, and I thought it may have been sent to you house instead. As you know, you often hold my mail for many months before giving to the kids to give to me.
So, in desperation, stuck on the freeway, in an emergency, I called and [Y] picked up. I simply asked him if there were any letters for me and he said no and so I said my goodbyes. Eventually, an hour later I figured out a way to resolve my problem another way and was able to drive again.
Again, life happens…
I am not harassing you
I am not breaching orders
This is not an opportunity to record “evidence” for your next court affidavit or application…
(As per the original)
In late 2022, the mother messaged the father saying,
[X] has been invited to a birthday party for her friend… Please can you RSVP to let [named] as to whether [X] is able to make the party.
The next day, the father responded,
Why are you sending me copies of party invitations? I have hard copies that the children share with me in their school bags?
I know you do not recognize the trauma, financial and emotional abuse you have caused…
You need to now, my truth is that every single message you send me is uncomfortable, it raises my stress levels and it affects me negatively.
I need you to stop.
If you don’t, there is only one reason – because you enjoy it and want to hurt me.
Stop. For the tenth time I am asking you to stop!!!!!
(As per the original)
At this time, the father was actively seeking a week about arrangement for the children and equal shared parental responsibility.
The mother replied two days later, at 8.41 am,
There is no need to use my message enclosing an invitation for a child’s party to cause new conflict. We were recommended to use OFW for co-parenting matters in order to avoid unnecessary conflict. Co-parenting was meant to be about the children. I sent you a scanned copy of the party invitation in case the children lost the hard copy. My message was very simple and about the children.
At 8:54 am, the father messaged,
LEAVE ME THE FUCK ALONE!!!!!!!!
What is wrong with you ????
(As per the original)
At 9.00 am the father messaged,
You cause me trauma, leave me alone.
At 9.01 am the father messaged,
When you deliberately write to after I say it causes me hurt, you are deliberately hurting me
Leave me alone
(As per the original)
Also at 9.01 am he messaged,
You are a monster that never ends and has no empanadas, I need you to leave me alone !!!!!
(As per the original)
At 9.02 am he messaged,
You need to STOP!!!!!!!!
Leave me alone
(As per the original)
The father then stopped reading the mother’s messages on OFW until later in 2022, a period of about seven weeks when the father messaged the mother,
I have read all of your messages since [late 2022]. Not a single one has any value, new information or includes a genuine attempt to co-parent.
Unless you show a genuine attempt to Include me in decisions, before you act, you are simply using OFW to notify me.
That is not co-parenting and has no value to me nor the children.
You are acutely aware of the physical and mental affect that your endless, patronising and accusatory messages have had and continue to have on my health, yet you continue relentlessly and without mercy or empathy.
(As per the original)
All of the mother’s messages on OFW were tendered. On 28 September 2022, she asked him not to make derogatory remarks about her to the children. On 1 October 2022, the mother told the father that she had been trying to contact the children, then in his care, and asking him to allow them to talk to her. On 11 October 2022, she sent him a birthday party invitation for Z. On 13 October 2022, she again messaged him asking to speak to the children. On 25 October she messaged him about Y’s medical check-up and relayed the doctor’s advice. On 28 October 2022, the mother forwarded a message from another parent about a birthday party to which Y was invited. On 9 November 2022, the mother advised the father that band practice had been moved from Thursday to Wednesday, a day the children were with him. The mother’s messages were short and respectful.
The father replied to all of those messages on 12 November 2022. His replies, which were in evidence, were inappropriate.
Also in late 2022, the father had a conversation with Y who told him that the mother was going out with friends and that a babysitter would be looking after them. She deposed that the father said to Y,
I am sorry that Mummy is leaving you with a babysitter so that she can go out drinking in a bar. Don’t worry I won’t get a babysitter when you are with me.
In cross-examination the father agreed that he had said similar words to Y.
The father messaged Y saying,
Sorry to hear your mum is leaving you with a babysitter so she can go out drinking at a bar
Hope your babysitter is okay
Can’t wait [sic] ti spend the week with you!
And don’t worry… I won’t be getting a babysitter…
(As per the original)
The mother messaged the father on OFW asking him to refrain from denigrating her to the children. In a message to the mother on OFW on 12 November 2022, the father wrote, about this incident,
[Y] complained to me during our call that “mummy is going out for a drink at the pub and we have a babysitter”. He told me he was upset about that. He said he did not know this babysitter
You have no right to tell me that I cannot console my son. I used his words that described your actions, not mine
That is not co-parenting. You are creating conflict.
Stop
(As per the original)
In cross-examination, the father agreed that his behaviour was inappropriate but had no explanation for it.
In another message to Y, the father said,
Sorry your mum will not allow you to watch the [sporting event]
I’m even sorrier she won’t allow you to watch and text me at the same time so that we can enjoy this moment
It’s not fair on you mate
I’m thinking of you
(As per the original)
Having regard to the father’s unconstrained communications with the mother and the children over a long period, for which he offers no excuse or explanation other than that he was angry, it is likely that, if the children were to move to live in the United Kingdom, the father’s anger would be exacerbated or, at the least, he would continue to be angry. In those circumstances, it is likely that he would continue to communicate with the children in a manner that is critical of the mother and of the maternal family.
That proposition was put to Mr C who agreed there was “certainly a potential for that to occur”. Asked about the effect on the children if that were to happen, Mr C said,
Well, they would continue to be in the very circumstances of chronic stress culminating in possibly longer-term negative psychological outcomes if that were to continue overseas, and because they would have an even less of a chance to reality test with their father. Then that could be an extra problem for them, and extra burdensome for them. What would be alleviated would be the issues on transfer, which I think, even though they are not overt explosive conflicts, I think they’re still nevertheless very damaging. So there would be alleviation in that regard, but certainly no guarantee that they would be alleviated from comments like that which serve the purpose of undermining their relationship with their mother.
Mr C agreed that the possibility that the father would undermine the children’s relationships with the mother and her family was a factor that mitigated against relocation.
any family violence involving the child or a member of the child’s family
The mother made three allegations of events which could be categorised as family violence, all proximate to the time of the separation.
The mother alleged that in late 2019 when the mother was in the kitchen and the father was in the bedroom, Z went to the father’s bedroom and knocked on the door, the father threw an apple at her. The father agreed that he had an apple in his hand. It was his evidence that he threw the apple in the bin. The apple did not hit Z.
The mother alleged that the following month, Y was helping his father in the garage and that she heard the father become angry and throw something near Y. She does no assert that she saw what happened and it is difficult to accept that she could hear that something was thrown near the child. The father denies that he threw anything.
The mother alleged that, in 2019, the father attempted to discuss their separation with her while they were both in the garden. The mother was carrying Z on her hip. The mother asserts that she moved away from the father to end the conversation and that she “noticed a rock flying through the air and landing a few meters away from me and Z”. The mother does no assert that she saw the father throw anything. The father denies that he threw anything. The evidence does not establish that the rock was anywhere near the mother.
I do not accept that any of these allegations has been established on the balance of probabilities and I do not accept that the father perpetrated physical violence upon the children as alleged by the mother.
any other relevant matter
The father has no family in the United Kingdom and he does not have a good relationship with the maternal family. In his affidavit he refers to “the entitled, bullying and controlling behaviour I experienced from [the maternal] family during our marriage.”
The father told Mr C that the mother’s father, Mr G, has paid $250,000 towards her legal fees and has instructed the mother’s lawyers to do what needs to be done to secure the mother’s return to the United Kingdom. The costs notice filed pursuant to r 12.06 of the Rules confirms the amount to be in excess of $300,000.
The father told Mr C that, at the time of the separation,
78.I suspect that her Dad was coming to get her and the children… I saw letters which suggested a checklist of what needed to be done… (they said such things as) ‘I need you to assist my daughter to relocate…’ I removed the passports.
Mr C reports that the father told him,
76.…there is, no support for [the mother] in the UK… I would be able to provide support… they (ie the maternal extended family) hardly saw us in the UK …they will ship them off to boarding school… their (maternal) grandfather has seen them (the subject children) twice in the last five years…
The father received no communication from any member of the maternal family after separation until late 2020 when he was contacted by the husband of the mother’s sister who left a message in the following terms,
[Mr Cooke], it’s [Mr Q] here. Just calling to discuss, one of, well several thousand messages you have sent to [the mother]. We’ve all sat quietly and not responded up till now, and actually, I can’t do that anymore. So, I am just going to be calling you every day, or every time there is a message sent like the one you sent to [the mother] just now which is as appalling and toxic and immoral as they always are! And, give you the opportunity to try and explain what you are trying to get across to [the mother] and maybe explain the abuse that you continue to use. If you have got the courage, give me a call! But I will not stand by anymore! I will call you every single day! Until some point you are able to explain what on earth you are trying to do here. It’s absolutely abhorrent! And, I will give you another call a bit later.
(As per the original)
Mr G has sworn an affidavit in the mother’s case in which he is critical of aspects of the father’s conduct.
The mother’s sister, Ms N, swore an affidavit in the proceedings. Her evidence was critical of the father. In her affidavit she expressed her concerns about his “embittered and reckless behaviour” and referred to his communication with the mother as “abusive and aggressive”.
The mother in her affidavit refers to the father’s denigration of the maternal family and his hostility towards her sister.
The evidence does not suggest that the father would be kindly received by the mother’s extended family in the United Kingdom or that he would receive any assistance from them.
Unlike the mother, who would have the benefit of Mr G’s emotional and financial support, the father would be moving to an environment where he has no support and, I accept, would be placed in a difficult financial position.
I do not consider that the father’s refusal to move to live in the United Kingdom (if he were able to gain the requisite visa) is unreasonable in all the circumstances.
conclusion
The question of what is meant by the term “meaningful relationship” was considered by the Full Court in the decision of McCall & Clarke (2009) FLC 93-405 where their Honours said,
[109]The Act does not contain a definition of “"meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a ”meaningful involvement” in a child's life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
[110]It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
[111]The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence”
[112]The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …” “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”
[113]We turn first to the objects clause (s 60B(1)). The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”.
[114]Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.
[115]The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The Full Court in Moose & Moose (2008) FLC 93-375 adopted the statement of Kay J, sitting as a single Judge in Godfrey & Sanders [2007] FamCA 102, who stated,
[36]... Even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Thus I am required to consider the importance of the children having a relationship with their father that is significant, important and of consequence.
Mr C, in cross-examination, was asked to consider the implications for the children if they were only able to see their father once each year. He said,
I still maintain, your Honour, that this is to do with there being a no-win situation for the children, that the least worst – it’s a matter of least worst alternatives. I think that in trying to weigh up the factors in this, if they were to see him just once a year, they are – the potential risk for them to feel sad and hurt in the long-term is much more so if it were to happen to be just once a year that they saw him, and it’s tantamount to them not really having a relationship with him. It would be – like, he would be relegated to the status of like a distant uncle or similar. Yes.

Sadly, I am not able to find, on the balance of probabilities, that the children, if they move to live in the United Kingdom, will retain a relationship with their father that is meaningful.
The benefits which the mother perceives will flow to her from the relocation do not outweigh the loss of the children’s meaningful relationship with their father and the likelihood that they will be subjected to increased and chronic stress as a result of the father’s communications with them, with the negative effects outlined by Mr C.
The children will remain living in Australia.
parental responsibility
The mother seeks an order that she have sole parental responsibility for “the living arrangements of the children”, the children’s education and health and medical care.
That application was opposed by the father who sought equal shared parental responsibility, although his position changed after Mr C’s cross-examination and he agreed that the mother should have sole parental responsibility.
The major long term decisions for which parental responsibility is allocated are defined in the Act as,
“major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)       the child's education (both current and future); and
(b)       the child's religious and cultural upbringing; and
(c)       the child's health; and
(d)       the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
There are already two significant issues which have arisen where the parents cannot agree.
The mother wants to have the children vaccinated against Covid-19. The father is adamantly opposed.
The mother proposes that, if the children remain in Australia, they attend a local state high school. The father does not agree and he proposes that they attend a private religious school or, in the alternate, a Catholic high school. Setting aside the question of how these parties could afford to pay school fees, neither party has proposed a mechanism for resolving the dispute about high school which is looming because X will start High School in 2024.
I have already determined that it is not appropriate for the mother to be able to determine where the children live if that decision affects the children’s time with their father.
In relation to issues of health and education, I can have no confidence, having regard to the past history of this matter, that the parents will be able readily to reach agreement and I accept that it is appropriate that one parent, in this case the mother, should have sole parental responsibility.

I certify that the preceding two hundred and forty-one (241) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.
Associate:
Dated: 31 January 2023

File number:	SYC 4738 of 2020
Judgment of:	REES J
Date of judgment:	31 January 2023
Catchwords:	FAMILY LAW – PARENTING – Relocation – Where the father opposes the relocation proposal – Where the parties agree that the mother have sole parental responsibility – Parental conflict – Where the father’s communications with the mother has been offensive and derogatory – Where the father communicates with the children in a manner that is critical of the mother and the maternal family – Where it has not been established that the children have been exposed to family violence – Where the foremost consideration in the circumstances is the benefit to the children of having a meaningful relationship with both parents – A meaningful relationship is one which is important, significant and of consequence – Where the benefits to the mother of relocation would not outweigh the loss of the children’s meaningful relationship with their father – Where the father does not have the financial means to travel regularly to the United Kingdom as the mother proposes – Where the relocation would be a major disruption to the children’s lives – Expressed views of the children to remain in Australia – Application for relocation dismissed – Orders made for the children to spend time with the father each alternate weekend and for half of school holidays and on special occasions.
Legislation:	Australian Passports Act 2005 (Cth) s 11 Family Law Act 1975 (Cth) ss 60B, 60CC, 65DA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06
Cases cited:	Godfrey & Sanders [2007] FamCA 102 McCall & Clarke (2009) FLC 93-405 Moose & Moose (2008) FLC 93-375 U & U [2002] 211 CLR 238
Division:	Division 1 First Instance
Number of paragraphs:	241
Date of hearing:	14, 15 & 16 December 2022
Place:	Sydney
Counsel for the Applicant:	Mr Todd
Solicitor for the Applicant:	Mills Oakley Lawyers
Counsel for the Respondent:	Mr Havenstein
Solicitor for the Respondent:	Galea And Faustin Solicitors
Counsel for the Independent Children's Lawyer:	Mr Reeves
Independent Children's Lawyer:	Legal Aid NSW

SYC 4738 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS COOKE Applicant
AND:	MR COOKE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	REES J
DATE OF ORDER:	31 January 2023