Cunningham & Foster - [2024] FedCFamC2F 1725

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cunningham & Foster [2024] FedCFamC2F 1725

File number(s): NCC 3530 of 2022

Judgment of: JUDGE CARTY

Date of judgment: 4 December 2024

Catchwords:
FAMILY LAW – PARENTING – Relocation – Where the applicant mother seeks an order which permits her to relocate the child from Region B in New South Wales to Region C in Queensland – Where the respondent father opposes relocation of the child on the basis that it will adversely impact the child’s relationships with the father and extended paternal and extended maternal family members in New South Wales – Where the father seeks an order that the child live with each parent in an equal time arrangement – Where the mother intends to relocate to Queensland with or without the child to live with her husband– Where the mother’s wellbeing is most likely to be enhanced by the financial and practical support she will gain by living with her husband in Region C – Where the child has a meaningful relationship with both parents – Where the child has an important relationship with his maternal half-sibling – Where the child’s relationship with the mother might be diminished from feelings of rejection if the mother relocates without him and his healthy development may be impacted – Where the mother’s parenting capacity will be enriched by moving to Region C and the child will benefit – Where the child will continue to have the benefit of a meaningful relationship with the father if the mother is permitted to relocate the child – Relocation permitted – Spend time with arrangements – Discrete issues

Legislation: Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC, Pt VII

Cases cited:
AMS v AIF (1999) 24 Fam LR 756

Babcock & Wardell [2018] FamCA 276

Bolitho & Cohen (2005) 33 Fam LR 471

H v M [2006] FamCA 1071

Mazorski & Albright (2007) 37 Fam LR 518

MRR & GR [2010] HCA 4

Taylor v Barker (2007) 37 Fam LR 461

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

Division: Division 2 Family Law

Number of paragraphs: 226

Date of last submission/s: 26 March 2024

Date of hearing: 11, 12 and 13 March 2024

Place: Newcastle

Counsel for the Applicant: Mr Weightman

Solicitor for the Applicant: Seton Family Lawyers

Counsel for the Respondent: Mr Seric

Solicitor for the Respondent: Nolan Lawyers
ORDERS

NCC 3530 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CUNNINGHAM

Applicant

AND:
MR FOSTER

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

4 DECEMBER 2024

THE COURT ORDERS THAT:
LIVE WITH
1.The child X born in 2014 (“the child”) will live with the mother.
2.The mother is permitted to relocate the residence of the child to Region C in Queensland.

SPEND TIME ARRANGEMENTS
3.Further to Order 7.1.3 hereto, if the relevant Queensland school term is of less than nine (9) weeks duration, the child’s time with the father will occur on the last weekend of that school term instead.
4.Subject to, and for the purposes of, Order 7.3.3 (b) hereto, during Term 4 school holiday periods which commence in even numbered years the child’s time with the father will commence on 28 December.
5.If due to the operation of Order 8 hereto the child is unable to spend time with the father on any special occasion set out in Order 7.4 hereto, then by no later than the last day of Term 2 each year the father will nominate in writing to the mother:
5.1One of the two consecutive weekends and the child will spend time with the father on the nominated weekend; and
5.2The child’s time with the father on the consecutive weekend not nominated will be suspended.

THE COURT FURTHER ORDERS BY CONSENT THAT:
PARENTAL RESPONSIBILITY
6.The mother and the father will have equal shared parental responsibility for the child X (“the child”) born in 2014.

SPEND TIME ARRANGEMENTS
7.The child will spend time with the father as agreed between the parents in writing and failing agreement:

During School Term
7.1In Region C, Queensland from the conclusion of school (or 3:00pm if a non-school day) on Thursday until 4:00pm on Sunday during each school term in:
7.1.1Week 1;
7.1.2Week 5; and
7.1.3Week 9.

7.2In Region B, New South Wales from 8:00pm on Friday until 2:00pm on Sunday during each school term in:
7.2.1Week 3; and
7.2.2Week 7

During Queensland School Holiday periods
7.3In Region B as follows:
7.3.1For half of the Term 1 and Term 3 school holiday periods as agreed and failing agreement with the father for the first half in odd numbered years and the second half in even numbered years.
7.3.2During the Term 2 school holiday period commencing from the first day after the conclusion of the last day of school for Term 2 and concluding at 7.00pm on the second Friday thereafter.
7.3.3During the Term 4 school holiday period, for a continuous block period of four weeks with such time to be agreed between the parents and failing agreement:
(a)For the first four weeks block period when the Term 4 school holiday period commences in an odd numbered year; and
(b)For four weeks commencing on the date set out in Order 4 hereto when the Term 4 school holiday period commences in an even numbered year and concluding:
i.28 days later; or
ii.On the last Sunday of the school holiday period, whichever is sooner

7.3.4For the purposes of these Orders, save for Order 7.3.2 hereto, school holiday periods are deemed to commence on the first day after the conclusion of the last day of school for the term and to conclude the day prior to the commencement of the next school term.

During Special occasions
7.4The parents will do all acts and things required to ensure that the child will spend time with the father in Region B during special occasions as follows:
7.4.1From 8:00pm on Friday of the weekend immediately after the father’s birthday, until 7:00pm on the Sunday of that weekend.
7.4.2From 8:00pm on Friday of the Father’s Day weekend, until 7:00pm on the Sunday of that weekend.
7.4.3At all other times as agreed between the parents in writing.

8 The child will not travel to Region B on consecutive weekends unless otherwise agreed between the parties in writing.
CHANGEOVER
Unaccompanied travel
9 The parents will do all acts and things required to ensure that the child will travel as an unaccompanied minor, including but not limited to signing necessary documents, on any applicable carrier and thenceforth changeover will be effected as follows:
9.1The father or his nominee will deliver the child to City D Airport or Sydney Airport, as applicable, and will remain with the child until he boards his flight to Queensland; and
9.2The mother or her nominee will deliver the child to Region C Airport or Brisbane Airport, as applicable, and will remain with the child until he boards his flight to New South Wales.

Changeover in QLD
10    Changeovers for the child to spend time with the father in Queensland will occur at the mother’s residence in Region C.
THE CHILD’S FLIGHT
11    The mother will be responsible for booking the child’s flights pursuant to these Orders.
12    The parents will share equally in the cost of the child’s return airfares.
13    The mother will book the flights which are closest to the time arrangements provided in these Orders, with a preference for flights departing or arriving from City D Airport and should the mother wish to book a flight that is not the closest in time to the Orders or not departing or arriving from City D Airport, then she will notify the father of the proposed flights and seek his input but the booking will remain at the mother’s sole discretion, PROVIDED THAT the booked flight will allow the child to spend time with the father and live with the mother at the times and on the days which are provided in these Orders, unless otherwise agreed in writing.
14    The mother will pay for the airfares for the child at first instance and provide the father with the tax invoice or receipt and within 14 days of the father receiving a tax invoice or receipt, he will reimburse one half of the total costs incurred for the airfares into the mother’s nominated bank account.
NON-DENIGRATION
15    On a without admissions basis, the mother and the father are each hereby restrained from:
15.1Denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship;
15.2Discussing with the child these proceedings and any document filed or material produced under subpoena in these proceedings;
15.3Enrolling the child into any sport or extracurricular activity that will occur during the other parent’s time without first obtaining the other parent’s written consent; and
15.4Withdrawing the child from any sport or extra-curricular activity without first obtaining the other parent’s written consent.

MEDICAL
16    The mother and the father will each notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when he is in their care as soon as practicable, and in any event within 24 hours, and together with such notice the parent is to provide the name of the hospital, treating medical practitioner and medical facility which has provided any medical treatment for the child.
17    Each parent will keep the other informed at all times of full particulars of any treating medical practitioner or health professional upon which the child may attend from time to time, and each parent will do all acts and things and sign all documents necessary to permit and authorise the treating professional to release information in respect of the child to the other parent.
18    Each parent is at liberty to attend medical appointments in relation to the child.
19    The mother and the father will cause:
19.1The child to take any medication as prescribed by a treating medical practitioner during any periods that he is in their respective care; and
19.2Any prescribed medication to be provided to the other parent at handover until such time as the treatment course is completed.

RESIDENTIAL ADDRESS AND CONTACT DETAILS
20    The mother and the father will inform the other of their residential address, landline telephone number, mobile telephone number and email address within 48 hours of any change to such details.
EDUCATION
21    These Orders act as an authority for the mother and the father to receive all documents relevant to the child’s schooling including but not limited to his school attendance and progress, school reports, photographs and copies of any correspondence, newsletters or other written material produced by the school and distributed to parents or relating to the child specifically.
22    Leave is granted to the parents to provide a copy of these Orders to any school which the child may attend from time to time.
EXTRA-CURRICULAR ACTIVITIES
23    The mother and the father are permitted to attend any school function or activity involving the child including training, even if the function or activity occurs at a time when he is living with or spending time with the other parent.
COMMUNICATION
24    The parents will do all things required to ensure that the child is able to communicate with the parent he is not currently living or spending time with each Tuesday and Thursday between 6:00pm and 7:00pm either by Facetime or by telephone with the parent who is not with the child to initiate the call.
25    The parent who is with the child will do all things required to facilitate the child’s communication with the other parent by Facetime or by telephone at times to be agreed between the parents or failing agreement for up to 30 minutes with the other parent to initiate the communication at 6.00pm in the time local to the child on:
(a)Easter Sunday;
(b)The mother’s birthday;
(c)The father’s birthday;
(d)The child’s birthday; and
(e)Christmas Day.

26Each parent will do all things required to enable the child to communicate with the other parent by telephone and Facetime in accordance with the child’s wishes when he is in their respective care.
27For the purposes of Order 24, Order 25, and Order 26 hereto the mother and the father will facilitate the child’s communication by:
27.1Not hindering or preventing the child from communicating with the other parent;
27.2Providing the child with a quiet and private environment in which to communicate with the other parent and afford the child privacy during the communication;
27.3Ensuring that the child has access to a phone, iPad, computer or other device to facilitate communication with the other parent; and
27.4Ensuring the child can connect to Wi-Fi at each parent’s respective residence to facilitate communication with the other parent.

OVERSEAS TRAVEL
28Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother and the father are each permitted to remove the child X from the Commonwealth of Australia to travel overseas during the time he lives or spends with each of them pursuant to these Orders PROVIDED THAT:
28.1Unless otherwise agreed between the parents in writing, the child is not to be removed from school for the purposes of any overseas holiday, save for the last day of any school term;
28.2Unless otherwise agreed between the parents in writing, the child is not permitted to travel to a country which has a current travel warning issued by the Department of Foreign Affairs and Trade advising against non-essential travel to that country;
28.3The parent intending to travel overseas with the child will give to the other parent:
28.3.1At least two months written notice of the intention to travel, with such notice to include the dates and details of the destination(s) to which the child will be travelling;
28.3.2At least 14 days’ prior to the departure date:
28.3.2.1Proof of return tickets having been booked for the child;
28.3.2.2An itinerary identifying addresses and contact phone numbers for the accommodation at which the child will be staying and a list of all of the countries which the child will be visiting, whether in transit or otherwise; and
28.3.2.3Proof of travel insurance for the child to cover the whole period of any international travel.

28.4The parent intending to travel overseas with the child will ensure that they have a mobile telephone with international roaming enabled whilst overseas such that they can be contacted in the event of an emergency.

29Within 14 days from a written request from either parent to do so:
29.1Both the mother and the father will do all acts and things and sign all documents necessary for the child to be issued with an Australian Passport;
29.2Both the mother and the father will do all acts and things and sign all documents necessary to renew or replace the child’s Australian passport with such renewal to occur not less than 6 months prior to the expiry of the passport;
29.3The parent seeking to apply for the child’s passport will bear the costs of same at first instance and will provide the other parent with a tax invoice or receipt; and
29.4Within 14 days of receiving a tax invoice or receipt, the other parent will reimburse one half of the costs of renewal or replacement into the other parent's nominated bank account.

30The parents each pay their own costs of and incidental to these proceedings.

THE COURT NOTES THAT:
A.The father receives two Rostered Day Off (RDO) per month as part of his employment with E Company.
B.The father is currently using these RDOs as part of his existing work roster.
C.The father will likely be required to seek to amend his existing work roster to facilitate the time in Order 7.1.
D.Reference to “school holidays" in these orders is taken as referring to the holidays as applicable to the school the child attends at the relevant time and days where students cannot attend school (such as pupil free days) are taken to be part of the school holiday period.
E.The mother intends to accompany the child on flights he undertakes pursuant to these Orders:
(a)On all flights except one particular airline, until she determines, in consultation with the father, that the child is mature enough to travel unaccompanied; and
(b)On the excepted airline, until he is old enough to travel unaccompanied as allowed by the airline,

and will deliver and collect the child from the father or his nominee at Sydney Airport or City D Airport, as applicable or as otherwise agreed between the parents in writing.
(c)The parents agree that the child’s time with the father pursuant to these orders is not conditional upon the mother accompanying the child pursuant to the above Notation.
(d)The parents agree that if, for whatever reason, the mother is unable to accompany the child on a flight as she desires, then the parties must do all acts and things necessary to ensure that the child travels as an unaccompanied minor to spend time with his father in line with these orders.

F.In the event of any change to the father’s roster, the father will within 72 hours of same:
(a)Provide a copy of his new work roster to the mother by way of email or text message and at the same time;
(b)Provide the mother with an updated calendar setting out the rotation of time the child will spend with the father pursuant to Order 7.1 above; and
(c)The parents will negotiate Order 7.1 to attempt to amend the arrangements at Order 7.1 to accommodate the father’s work and minimise disruption to the child and the balance of the 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION

The applicant mother Ms Cunningham (“the mother”) seeks final parenting orders which will permit her to relocate the residence of the parties’ 9-year-old son X born in 2014 (“the child”) from Region B of New South Wales to Region C in Queensland (“Region C”).
The mother wishes to move to Region C with the child, and his two-year-old maternal half-sister F, so that she can live with her husband Mr G, who is F’s father. The mother is clear that she intends to move to Region C, even if she is not permitted to relocate the child with her.
The respondent father Mr Foster (“the father”) opposes the mother’s application for permission to relocate the child. The father would prefer the mother to remain living in Region B, in which case he proposes that the child will continue to live in an equal time arrangement with each of the parents. If the mother moves to Region C, then the father seeks an order that the child live with him.

The parents agree that the court will make an order that they have equal shared parental responsibility for the child. They have also reached agreement about most aspects of the spend time with arrangements for the child with each of the parents, depending on where the child will live. There remain several discrete issues relating to the child’s time with each parent which are to be determined by the court.
Having regard to the evidence, and for the reasons which follow, I consider that it is in the best interests of the child that he lives with the mother, and that the mother is permitted to relocate the child’s residence to Region C. I am satisfied that the child will continue to have the benefit of a meaningful relationship with the father while living with the mother in Region C.
BACKGROUND
In this background, statements of fact are to be construed as findings, unless otherwise stated.
The mother was 34 years old at the hearing. She and the child, and the child’s maternal half-sister F, who is 2 years old, live in a house at Suburb H during the alternate weeks when the child lives with the mother. During the week that the child lives with the father in Region B, the mother and F live in Region C, in a home owned by the mother’s husband Mr G. The mother and F mostly fly, or sometimes drive, from Region B to Region C return, each alternate week, to facilitate the equal time parenting arrangement for the child. The mother works part-time as an administrator in her husband’s business.
The father was 39 years old at the hearing. He lives at Town J with the child each alternate week. The father is employed full time as a tradesperson in Suburb K, which is operated by E Company. The father is required to work 70 hours per fortnight. The father reports that during the week when the child is in his care, he does not work from Thursday through to Sunday. The father works longer hours during the alternate week when the child is not with him. The paternal grandmother assists the father sometimes by taking the child to school and collecting him from school.[1]
[1] Single Expert Report [3]
The parents commenced their cohabitation in either 2012 or 2011. They separated finally in December 2018. They were not married. The subject child is the only child of the relationship.
Following separation, the child lived with the mother, and the parents were able to make appropriate parenting arrangements by agreement. The spend time arrangements for the child with the father were organised around the father’s work roster, and the child’s time with the father gradually increased from about 4 hours twice each week to overnight time when the child was about three years old. Initially, the child struggled with transitions between the parent’s respective households, and the parents agree that he now transitions without difficulty.
Until the interim parenting orders were made on 17 August 2023 the child was generally spending time with the father five night each fortnight, with make-up time dependent on the father’s work arrangements, and one half of the school holidays.
In late 2018 the mother commenced her relationship with Mr G, who was living and working in Region C in Queensland. In late 2019 Mr G moved from Region C to New South Wales to live with the mother, and he leased a warehouse at Town L and relocated his business operations there.
In 2021 the mother and Mr G became engaged, and they married in Queensland in 2023.
In early 2022 the mother spoke to the father about her desire to move to Queensland with the child. The father expressed his strong opposition to the child moving.
In 2022 the child’s maternal half sibling F was born.
On 18 November 2022 the mother filed an Initiating Application seeking final parenting orders including that the parents have equal shared parental responsibility for the child, and an order permitting the mother to relocate the child to live with her in Region C. The mother proposed that the child spend time with the father in Region B one weekend each school term and during school holidays.
On 19 January 2023 the father filed a Response seeking final parenting orders including that the parents have equal shared parental responsibility for the child and that the child continue to live in Region B. The father sought an order that if the mother relocates, the child live with him and spend time with the mother during school holidays.
On 23 January 2023 an Order was made appointing Ms M as the single expert to enquire into and report upon issues relating to the welfare of the child. On 30 May 2023 the single expert report dated 29 May 2023 was released to the parents.
When the parents spoke with the single expert, they each reported that the parenting arrangements were flexible, and that sometimes the child spent more time with the father by agreement. The parents reported that the child seems very stable and settled. Both parents emphasised that they wished for flexibility. The mother said that the father could visit the child in Region C and that the mother would bring the child to Region B at other times and the father said that he would be willing to facilitate the mother spending as much time with the child as practicable.
On 17 August 2023, following an interim hearing, the current interim parenting orders were made. In summary the interim orders provide that the parents have equal shared parental responsibility for the child and that, outside of school holiday periods, the child live with the parents as agreed between them, and in the absence of agreement in an equal shared care week about arrangement from the conclusion of school on Monday until the commencement of school the following Monday. During school holiday periods the child spends time with the mother during the first half in even numbered years and the second half in odd numbered years, and with the father for the second half in even numbered years and the first half in odd numbered years. There are interim orders in place for the child’s time with each parent on special occasions. On a without admissions basis, the parents are each restrained from:
(a)Denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship; and
(b)Discussing these proceedings and any documents filed or material produced under subpoena in these proceedings with the child.
THE HEARING
The final hearing proceeded over three days 11, 12 and 13 March 2024.
Mr Weightman of Counsel appeared for the mother.
Ms Seric of Counsel appeared for the father.
Documents
In support of her case, the mother relied upon:
(a)Her Case Outline Document filed 8 March 2024.
(b)Her Amended Application filed 16 February 2024.
(c)Her affidavit filed on 16 February 2024.
(d)Affidavit of Mr G filed 29 February 2024.
(e)Single Expert Report by Ms M dated 29 May 2023 (“the Single Expert Report”).
(f)Exhibits M1 -M6 inclusive.
In support of his case, the father relied upon:
(a)His Case Outline Document filed 8 March 2024.
(b)Amended Response to Initiating Application filed 12 February 2024.
(c)His affidavit filed 12 February 2024.
(d)Affidavit of Ms U filed 12 February 2024.
(e)Affidavit of Mr V filed 12 February 2024.
(f)Affidavit of Ms S filed 12 February 2042.
(g)The Single Expert Report.
(h)Exhibits F1 -F2 inclusive, and Exhibit M6.
Proposals
The mother seeks an order which permits her to relocate the child from New South Wales to Region C so that the child can live with her. She seeks additional orders which are set out in the Minute of Order provided to my Chambers by the parties’ jointly on 26 March 2024.[2]
[2] Exhibit M6
The father opposes the relocation of the child to Queensland. He proposes that if the mother remains living in Region B, then the child continue to live in an equal time week about arrangement with each of the parents. If the mother chooses to relocate, then the father proposes that the child will live with him and spend time with the mother in accordance with orders which are set out in the Minute of Order provided to my Chambers by the parties’ jointly on 26 March 2024.[3]
[3] Id
The mother deposes, and consistently maintained, that she intends not to remain living in Region B and will move to Region C without the child if she is not permitted to take him with her.[4] The father deposes, and consistently maintained, that he will not relocate to Region C even if the Court permits the mother to relocate the child there.[5]
[4] The mother maintained her position under cross examination
[5] Father’s affidavit [38]. The father maintained his position under cross examination
Having regard to the final orders sought by each parent and accepting their evidence about where they each intend to live in the future, it is not feasible for the child to live in an equal time arrangement in Region B or in Queensland. In circumstances where the parents intend to live over 700 kilometres apart from each other, with a driving time of almost 8 hours without stopping, it is not reasonably practicable for the child to live in an equal time week about arrangement with each parent.[6]
[6] Refer s.65DAA and MRR & GR [2010] HCA 4
In this case, each parent’s proposal will impact upon the child’s relationship with the other parent, and there are benefits and disadvantages for the child which are inherent in each parent’s proposal, discussed further in these reasons.
Issues to be determined
The Court is required to determine the following issues:
(a)Whether it is in the child’s best interests to live with the mother in Region C.
(b)Whether it is in the child’s best interests to live with the father in Region B of New South Wales.
(c)Several discrete issues relating to the spend time with arrangements for the child if he lives with the mother in Region C, or if he lives with the father in New South Wales.
LEGAL PRINCIPLES
The final hearing in this matter was concluded prior to the commencement date for the amendments to the Family Law Act 1975 (“the Act”) on 6 May 2024. The present proceedings are to be determined in accordance with the provisions of the Act which were in force prior to the amendments taking effect.
Parenting orders are made under the provisions of Part VII of the Act. Section 60B of the Act sets out the Objects of Part VII of the Act and the principles underlying the Objects.
When making a parenting order the Court must regard the best interests of the child as the paramount consideration.[7] In determining what parenting order is in the child’s best interests, the Court must consider the matters set out in s 60CC of the Act. The two primary considerations are:^[8]
(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.
[7] Section 60CA
[8] Section 60CC(2)
When applying the primary considerations, the Court must give greater weight to the need to protect the children from physical or psychological harm, than to the benefit of having a meaningful relationship with both parents.[9] The Court must ensure that any parenting order it makes does not expose a person to an unacceptable risk of family violence.[10]
[9] Section 60CC(2A)
[10] Section 60CG(1)(b)
The Court must consider the additional considerations set out in s.60CC (3) of the Act, which are relevant to the circumstances of the case.
When making a parenting order the Court must consider whether to apply the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child, or whether the presumption has been rebutted.[11] Depending on what order, if any, the Court makes in relation to parental responsibility for a child, the Court may be required to consider whether it is in the best interests of the child and reasonably practicable, for the child to spend equal time, or substantial and significant time, with each parent.[12]
[11] Section 61DA
[12] Section 65DAA
The High Court observed in AMS v AIF (1999) 24 Fam LR 75 that the best interests of the child is the paramount consideration, but not the sole consideration when the court is deciding what parenting order to make. The Court must consider the circumstances of the parties, including the right of the parents to choose where they would like to live. Justice Kirby observed that[13]:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves,^[142] to control their own future destinies^[143] and, where desired, to form new relationships^[144], free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child.^[145] This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.^[146]
[13] AMS v AIF supra at [145]
A failure to consider the circumstances of the parties, including the right of the parents to choose where they would like to live may constitute a serious injustice. In U v U [2002] HCA 36; (2002) 211 CLR 238Justice Kirby observed[14] that:
The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
As has been noted by this Court [66] and courts in other jurisdictions, [67] significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
[14] U v U [142] & [143]
The Full Court in Bolitho & Cohen (2005) 33 Fam LR 471 noted that the High Court held in U v U that the proper approach to be adopted in relocation cases is for the court to engage in a process which involves[15]:
...weighing of competing proposals, having regard to relevant… [s60CC(3)]… factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
THE EVIDENCE
[15] Bolitho & Cohen (2005) 33 Fam LR 471 at [72]
The mother
The mother provided an affidavit, and she was cross-examined at the hearing. In the main, the mother’s evidence was confirmed under cross examination or left unchallenged, and during his cross examination the father made several concessions which confirmed relevant parts of the mother’s evidence.
The mother deposed that she first spoke with the father about the prospect of relocating with the child to Region C in early 2022.[16] The father concedes that the conversation which the mother sets out occurred, as follows:
[16] Mother’s affidavit [51] – [59]
I said to Mr Foster words to the effect of:
"I want to have a chat with you. I am mindful it is going to be hard to hear. I would like to move to Queensland with [X]."
Mr Foster said to me words to the effect of:
"You're not allowed to move. No, that's not happening. You're not leaving. That's so selfish."
And:
"Do you know how long the family court process will take? [X] will be a teenager before that is sorted out. If you're moving away, [X] will live with me and you will have to come down and see [X]."
I said words to the effect of:
"I want to go to mediation to discuss this. I haven't discussed this with [X] and I want to keep this away from [X] until we work out what we are doing."
And:
"We can make this work. Please hear me out. Please try and sort this out of court. Let me know how you think we can work this out."
The mother deposes that she spoke with the father about moving about a further two or three times until April 2020. The mother said to the words to the effect of:
"I want to move. I want to take [X], but I want what is best for [X]. How could you care for him if he stayed in New South Wales?"
The father told the mother that:
"You can't move away. What kind of mother would that make you?"
"If you move, I'll just get a live-in nanny to raise our son. My mum is retiring soon and she will assist. "
"It's your selfish nature that's going to break his heart."
"It is not happening. Discuss this through solicitors."
"[X] will stay with me. I'll just get a letter from work saying I have changed my shifts. [X] will live with me and you can come down and see [X]."
The mother deposed, and I accept her evidence, that she had not spoken with the child about relocating. Around March 2022, when the child returned to her care after spending time with the father, the child cried and said to the mother words to the effect:
"You're leaving me to go to Queensland with [Mr G] and the baby. You're leaving me. You're leaving me.
"I told Dad I would stay with him because he was sad and angry you're leaving."
The mother raised what the child had said to her with the father, who replied in words to the effect:
"My conversations with [X] are around you leaving him. He needs to understand that."
The single expert was asked to comment on the impact on the child of the father having discussions with the child about the mother leaving him to go to Region C, during cross-examination by Learned Counsel for the mother. The single expert said that those discussions would have been very distressing for the child and were not child focussed and should not have happened.
The focus of much of the cross examination of the mother was centred on the father’s assertion that in seeking to relocate with the child to Region C the mother is prioritising her own needs over the child’s, including her relationship with Mr G and F’s relationship with Mr G. Having had the advantage of seeing and hearing the mother give her evidence, I did not perceive the mother in that light. I consider that the implied criticism of the mother is unfair. In my view, the mother is a most committed, capable, thoughtful and loving parent. She holds an entirely legitimate desire to move on with her life and to create a family with her husband in a different location than where she currently resides. In my view it is clear from the mother’s evidence that she very carefully considered the timing of her proposed move and thought through the implications for the child, including the child’s relationship with the father. The mother demonstrated in her evidence that she is highly sensitive to the child’s feelings and aware of the likely impacts upon the child of moving away with the mother or staying with the father in Region B. The mother recognises the deep bond that the child has with the father, and she acknowledges the many common interests which the child and the father share.
In my view the mother is not selfish and she has not prioritised her own needs over the child’s needs by seeking permission of the Court to relocate the child to Region C to live with her.
Mr G

Mr G is the mother’s husband. He provided an affidavit in support of the mother’s case and was not required for cross-examination.
The mother and Mr G met in mid-2018 and commenced a relationship, when Mr G was living and working in Queensland. Mr G owns a three bedroom home in Region C. Mr G’s mother and her partner Mr N live in the same suburb.
Mr G is the sole director of O Pty Ltd (“the company”). The business operates from a warehouse at Suburb P, Queensland. Mr G deposed that when the mother moves to Region C, he can employ her on a salary of $70,000-$80,000 including superannuation. I accept his evidence that the mother will have flexible work arrangements and will be able to attend to the needs of the children, including school drop offs and pick-ups, sick days, extra-curricular activities, doctor’s appointments, and homework.[17]
[17] Affidavit of Mr G [49]
Mr G relocated himself and his business to New South Wales to live with the mother in mid-2019. The mother and Mr G agreed that it was easier for him to move, as the mother had the child to consider. I accept that the mother expressed to Mr G her intention to move to Region C with him if the relationship continued, once the child was older.
For 3 ½ years, between mid-2019 and December 2022, Mr G and the mother lived together in New South Wales. I accept Mr G’s evidence that while he was living in New South Wales he assisted the mother with the care of the child, including by caring for the child on one of the days that the mother worked each week. I accept that Mr G has been an active and involved stepfather and that the child has developed a good relationship with him.
In 2021, during the early stages of the mother’s pregnancy with F, Mr G and the mother decided that they would move to Region C, although they did not have a specific time frame. The mother agreed to discuss with the father her desire to move to Region C with the child.
In early 2022 Mr G told the mother that his warehouse lease in Region B was up for renewal at the end of the year and that he had been told the rent would increase. He told the mother that he had found a warehouse in Region C which would be perfect for his business. In early 2022 the mother raised with the father her desire to move to Region C with the child.
In late 2022 Mr G purchased a warehouse at Suburb P in Queensland.
In late 2022 Mr G returned to live in Region C, having relocated his business operations back there.
At the date of the hearing, since moving to Queensland, Mr G had travelled from Region C to the Region B to spend time with the mother, F and the child on eight separate occasions. The child travelled to Region C with the mother and F during each of the school holiday periods in 2023 and stayed in Mr G’s property, where the child has his own bedroom.
I accept Mr G’s evidence that he is attentive to the child’s needs and that he and the child enjoy many activities together. The child and Mr G speak almost every day when the child is in the care of the mother in New South Wales.
Mr G describes the child and F as very close and he says that F adores the child.
Mr G’s mother and her partner enjoy the child’s company, and the child regularly spends time with them.
Mr G deposed that in the initial stages of his relationship with the mother, the father expressed his displeasure about Mr G’s presence in the child’s life, but over time the two men have developed an amicable relationship and are able to acknowledge each other and converse with each other. I accept Mr G’s evidence that he respects the father’s role in the child’s life, and that he fully appreciates the importance of the child’s relationship with the father.
The father
The father provided an affidavit and was cross-examined at the hearing. He was prepared to make reasonable concessions, and I consider that generally he was an honest witness, although he was evasive during questions about his discussions with the child in 2022, after the mother informed the father that she wanted to move to Region C.
During cross-examination, the father conceded that he had difficulty adjusting to the parental separation in the early stages. The father admits that he said derogatory things to the mother and to Mr G, including at a changeover for the child. The father expressed his remorse and shame, and he accepted that the mother did well to put aside his behaviour and focus on the child. The father said, and I accept, that once he adjusted to the separation, he was able to focus on the child.
The father conceded that he should not have told the child that the mother was leaving him. The father said that the child has a high “EQ”[18] and the child knew the father was sad and angry and he did not want to upset either of his parents. The father agreed that the child has comforted him when he was sad. The father said that the child has picked up on how upset the father has been for the past two years.
[18] Which I take to mean emotional intelligence
The father conceded that he had asked the child not to mention his current partner too much in front of the mother[19] and said that this is because the mother can be critical of the father about his relationships, and he was hesitant to tell her.
[19] Mother’s affidavit [70] – [71]
The father admitted that it was difficult for him to navigate some situations which were new to him. The evidence demonstrates that the father has prioritised his own needs over the child’s needs on several occasions.
Under cross-examination, the father agreed that he has always wanted equal time with the child. Following separation, the father was living in a mobile home and building his home at Town J, and he admits that was not able to accommodate the child. He acknowledged that he was emotionally hurt and said that he did not want the child to see him like that. The father appeared to struggle to appreciate that an equal time arrangement for his then four-year-old child may not have met the child’s needs. He conceded that he had returned the child to the mother late at night on at least one occasion in 2018 or 2019 because the child was unsettled. The father was able to acknowledge that the child’s relationship with the mother was very close and that the mother had provided most of the care for the child early in his life, and that the child had been an unsettled baby with some sleeping issues.
The father conceded that the mother had generally afforded him a larger portion of flexibility in the parenting arrangements, due to his roster changes, and that generally she had fallen into line with his requests for changes. For example, at the father’s request the mother changed her plan to hold a party for the child on his birthday in 2022 and moved the party to the following month. The father arrived late to that party, due to either a work commitment or his confusion about where the party was being held. Either way, the mother was prepared to accommodate the father’s request for the party to be held on a day other than the child’s birthday to accommodate the father’s needs.
The mother’s evidence about the several occasions between December 2021 and February 2023 when she requested the father to provide care for the child and the father refused was unchallenged, and I accept that the father has generally not been able to assist the mother with the care of the child, outside of the scheduled spend time and live with arrangements, due to his work commitments.[20] The paternal grandmother has assisted the mother at times, including in February 2023 when she collected the child from school when the mother was sick, and the father was unable to assist.
[20] Mother’s affidavit [104] - [108], [117]
When the father’s roster changed in mid-June 2022 the father told the mother “We will need to change my days, so I only have [X] on my days off.”[21] The mother told the father that chopping and changing wouldn’t work for the child, and she suggested that he go back to his old roster or request some changes at work to minimise the disruption for the child.[22] In what appears to be a “tit for tat” response to the mother’s request for extra nights with the child so that she could take him on a holiday later that month, the father responded: “like you said no flexibility…sorry.”[23]
[21] Ibid [113]
[22] Ibid [114]
[23] Mother’s affidavit [109]
The father concedes that it was not a complete shock to him when the mother approached him in February 2022 and told him that she would like to move to Region C with the child, and the father said that he assumed that it could be “on the cards”. He agrees that he told the mother that she is not allowed to relocate and that he insisted that the child could not move and told the mother she was selfish. He further conceded that the first time that he has ever set out his proposal for the child to spend time with him if the child is permitted to move to Region C is the second day of the trial[24] and he had not foreshadowed any position relating to the spend time with arrangements for the child with him before that time, which is more than two years after the mother first raised her proposal to move.
[24] Exhibit F1
When the father was cross-examined about his proposal for the child’s time with him if the child relocates, the father said that he could discuss with his employer reverting to his previous roster and could work a nine-day fortnight and accrue rostered days off and take time off in lieu of pay for additional hours worked. He was comfortable that, on his previous roster, he would be available to travel to Region C approximately 12 times each year. He could be involved with the child’s extracurricular activities in Region C, and he could participate in similar activities with the child and do the school pickups and drop offs during spend time occasions on the Region C. He planned to stay in short stay accommodation in Region C.
Since the interim orders were made in August 2023 which implemented an equal time arrangement week about, the father has generally been available to drop the child to school and pick him up during the week when the child is in the father’s care. Due to his work commitments, the father relies on the paternal grandmother to assist him to care for the child, including when the grandmother took the child to hospital when he became ill late one night in late 2022. The paternal grandmother has stayed overnight with the father on a Sunday night to take the child to school on a Monday, and sometimes she collects the child and brings him home from school.
The father agreed that he had missed the parent teacher interview for the child in August 2023, because he forgot to put it in his calendar, notwithstanding that he and the mother had exchanged messages and the appointment was booked for a time that the father was not at work.[25]
[25] Exhibit M5
The father reported in May 2023[26] that his employment requires him to work 35 hours a week, and that he often works more hours when the child is not with him.
[26] Single Expert Report [3]
The father is required to work 70 hours each fortnight as a full-time employee at his employer in Suburb K, and he does not plan to reduce his work hours if the child moves to live with him full time. He concedes that his work has been a priority for him over the years and that on more than one occasion the mother has reached out to the paternal grandmother to assist her with the care of the child, because the father has not been available to assist due to his work commitments, including when the mother or the child have been unwell.
If the child lives with the father fulltime, the father plans to continue with his current work roster. Currently, during the week that the child lives with him the father works from 8.30am until 2pm each weekday (“the short week’). During the week that the child is currently not with the father, the father starts work at 7.00am and finishes at 4.30pm (“the long week”).[27]
[27] Father’s affidavit [48]
The father deposes that there “may” be times when he will not personally be able to drive the child to and from school or other appointments because of his work commitments.[28] I consider that during the long week the father will not personally be able to deliver the child to and from school or to his appointments. The child attends Q School which is located between 30- and 40-minutes’ drive from the father’s workplace and in the opposite direction from the father’s home at Town J.[29] The driving time between the father’s home and the child’s school is about 30 minutes. [30] The father said that he does not intend to change the child’s school, even though there are schools which are located closer to his home. Before and after school care is available starting at 6.30am and finishing at 6.30pm.[31]
[28] Ibid [53]
[29] Exhibit M3
[30] Father’s affidavit [10]
[31] Ibid [55]
During the short week, the father could feasibly deliver the child to Q School at 8.00am and be at work by 8.30am, although the travel time to work will be cut very fine and if the driving time takes 40 minutes then the father may arrive late to work. During the long week, to arrive at work by 7.30 am the father will need to deliver the child to before school care around 6.30am and collect the child from after school care around 5.30pm each day. The child will have to be out of bed early in the morning to leave home by about 6.00am and arrive at before school care by 6.30am, and he will not return home before about 6.00pm each day and will need to have his dinner and complete his nighttime routine. To his credit under cross-examination, the father conceded that if the child lives with the mother, then he can be dropped off to school and collected by the mother each day and that this would be a better arrangement for the child than the long week in the father’s care.
The child’s current routine during the short week is that he has dinner at 5.00pm, except on one evening each week when he has dinner with the father at 4.30pm, because they attend sports training at 6pm, although the father conceded under cross-examination that the local sports centre has closed due to a lack of volunteers and the child is no longer attending.
The father and the child attend sports training on another night between 4 and 5pm and all day on the alternate Sundays when the child is with the father. The father conceded that during the long week, he would have to pick the child up from after school care around 5.00pm[32] and would arrive at Town R for sports training about 5.30pm. It would take 10-15 minutes to unload the equipment and get changed and the child would finish around 6.45pm and be home around 7.15pm, although that evidence seems optimistic because the driving time between Town R and Town J is about 45 minutes, so the child would more likely arrive home around 7.30 pm.
[32] It could be as late as 5.10pm due to travel time
The father conceded that he is comfortable if the child is involved with the sporting community in Region C, if he moves to live with the mother. The father accepts that the mother and Mr G have purchased sports equipment for the child to use in Region C, and the child’s other sports equipment can remain in Region B for use when the child is with the father. The father is keen to be involved with the Region C sports club if the child moves there.
The father has not looked at the options for schooling for the child in Region C [33] however he agreed that he has had the opportunity to look into options if he chose to do so, and he agreed that the mother and he would be able to discuss the options and be involved in decision making together.
[33] Mother’s affidavit [275] – [278]
The father said that his employer is scheduled to close in mid-2025, although there are negotiations to extend the operations, and the father was of the view that it may not close until 2032 and that the site may continue to operate with other projects. The father is a tradesperson, and he could re-train in other areas. In terms of the father’s capacity to relocate to Queensland, he conceded that he has provided evidence of searches only for employers where he may find employment opportunities.[34] He was taken to three employers which he left out of his searches, all located in Queensland.[35]
[34] Father’s affidavit [56]-[59]
[35] Exhibit M4
The father has an excellent job which he enjoys and says that he is happy living where he currently lives. He told the single expert that he earns $250,000 per annum. In cross-examination the father conceded that he likes his life in New South Wales, and that he is comfortable and has family there, a nice house and a good solid job, and that when he looked into jobs in Queensland, he was not seriously considering relocation, and he has no desire to live in Region C.
Ms S
Ms S provided an affidavit in support of the father’s case, and she was cross-examined at the hearing.
Ms S is the shift manager at E Company. She is responsible for managing the father’s work roster and his performance, output and work direction.
Until July 2023, the father’s work roster was 5 days per week from 7.00am until around 3.00pm, with one rostered day off each fortnight, and from time to time the father worked additional shifts.
Around June 2023 the father requested to change his roster so that it is more flexible with his parenting responsibilities. The father is required to work 70 hours per fortnight.
In August 2023 a new roster came into effect which requires the father to work:
·Week 1: 8.30am until 2.00pm Monday to Friday; and
·Week 2: 7.00am until 4.30pm Monday to Friday.
In September 2023 the father requested a further change so that his start time on Monday in Week 2 is also 8.30am, and that change was approved and implemented in November 2023.
The father is not able to work remotely from home and he is required to attend work in person at Suburb K. There is no capacity for the father to remain employed in his role with E Company if he moves to Region C.
If the father was to request further changes to his roster, he would need to write down how his new hours and days would fit within the requirement for him to work 70 hours each fortnight. Under cross-examination Ms S said that there is the opportunity for the father to request that he work longer on his short days and less time on his longer days, and any request for change would need to meet the business requirements. The “normal” roster for a person in the father’s position is the roster that he was on before August 2023, that is Monday to Friday from 7.00am until around 3.00pm, with one rostered day off each fortnight, and it would be possible for the father to revert to that standard arrangement, if he so requested.
Ms S was taken to the father’s evidence that she had told the father that his position is a 24 hour 7 day a week role and that he just needed to do his 70 hours per fortnight within that time.[36] Ms S said that this is not the case and that the work is predominantly day work and the father’s role is not a 24 hour 7 day one. Ms S confirmed that the father has never requested to work part-time, nor has he requested to job share, and she was not sure whether the father’s role with the company could accommodate such arrangements, and she would have to look into that if he did make such a request.
[36] Father’s affidavit [52]
Flexible work arrangements are reviewed every 6 months. The review considers the needs of the employee and the business. If the father requires extra time off work, there is provision under sick and carer’s leave or annual leave or long service leave.
Ms U
Ms U provided an affidavit in support of the father’s case, and she was cross-examined at the hearing.
Ms U is the child’s paternal grandmother. She is retired and in good health, apart from some mild medical conditions.
The paternal grandmother is of Aboriginal heritage, and is connected to the local people.
It is common ground that the child has been interested in his Aboriginal culture and heritage since he was a small child. The child’s paternal Aunt Ms T is an Aboriginal educator, and his cousin sells Aboriginal art, and both teach the child about Aboriginal art and stories. The paternal grandparents organised for the child to receive an Aboriginal artefact for his birthday in 2023 and for a local elder to tell the child a story about how the artefact was made and where it was from. The child has lessons at school. I have no doubt that the paternal grandmother and grandfather will continue to support and encourage the child to participate in his Aboriginal culture.

Ms U confirmed that she has a good relationship with the mother and has no difficulties communicating with her. She confirms the mother’s evidence[37] that the father’s family is a very big part of the child’s life and that the mother has been very flexible in her approach to the child’s time with the father and his family, including facilitating additional time over and above the time that the child otherwise spends with the father. Ms U is grateful that the mother has been so accommodating, and she and the mother have been able to work together on many occasions to ensure that the child’s needs are always met at a high level. Both parents have been able to rely upon support and assistance from the paternal grandmother when required from time to time.
[37] Mother’s affidavit [191]
Ms U is generous with her praise for the mother:
[Ms Cunningham] is a fantastic mother, and I see the devotion she has for both [X], and for her young daughter [F].[38]
[38] Affidavit of Ms U[17]
I accept Ms U’s evidence that she is very close with the child and has generally spent time with him at least once or twice each fortnight since he was born. Ms U and the paternal grandfather love the child dearly and are both thoroughly devoted to him.
The paternal grandmother has assisted the child to attend sports lessons and has fostered the child’s interest in sports activities. The child shares his paternal grandparents’ passion for the Region B Sports Club, and they have arranged for him to be a member of the Club and the child regularly attends games at the local stadium with them. Ms U agreed that the sports season is from October to May and if the court determines that the child will live with the mother, then he will still have the opportunity to attend games in Region B during the September/October school holidays, the Christmas school holidays, and the April school holidays, and his membership of the Club can be maintained.
The grandparents attend most of the child’s school events, including Grandparent’s Day. They have supported the child in his sport since he was 4 years old. Along with the father, the grandparents have taught the child how to maintain and repair his sports equipment.
The child participates in family traditions with the grandparents and extended paternal family members such as the Christmas Eve Cook and family camping trips.
The grandmother is willing and able to assist the parents with the care of the child including taking him to and from school and collecting him from school if he is sick, and she has assisted the father with before and after school care.
In cross-examination the paternal grandmother readily conceded that the child’s relationship with her will not be lost if the mother is permitted to relocate the child to Region C. She will likely spend time with the child in Region C and will spend time with him in Region B when he is with the father. Facetime calls with the child, which occur now, will continue. Ms U is comfortable discussing arrangements to spend time with the child with the mother and agrees that she has every confidence that the mother will do everything she can to see the child spend time with the grandparents in Region C when they travel to that area.
Mr V
Mr V is the child’s paternal grandfather, and he provided an affidavit in support of the father’s case. He was not required for cross-examination.
Mr V is retired and suffers from a couple of medical conditions, which he says are easily treated with medication.
I accept the evidence of Mr V that he has an extremely close bond with the child, and that he is a devoted grandparent. Mr V shares his passion for sports with the child. He is a hands-on grandfather, who is encourages and supports the child with his various interests.
The child enjoys many family occasions with the extended paternal family members.
The paternal grandfather, like the grandmother, has a very supportive role in the child’s life, and is involved in the child’s school events and extra-curricular interests. He is fully supportive of the child’s enjoyment of and participation in his Aboriginal cultural heritage.
Mr V enjoys a good relationship with the mother, and can see that she is a good mum, who is loving and attentive to her children.
Mr V considers that the father can provide for all the child’s needs, and Mr V is prepared to assist both parents as required.
I accept the evidence of Mr V that he is a proud grandfather and that he is willing and happy to provide whatever assistance the child needs in the future.
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of his parents.
The child has two loving and capable parents. The parents agree that the child benefits from his meaningful relationship with both parents, and I accept that to be the case. I accept that, as the single expert evaluates, the child has deep and connected relationships with both parents which are of equal importance to him.[39] It is in the child’s best interests that his meaningful relationships with both parents continue.
[39] Single Expert Report [67]
I am mindful of the observation of Brown J in Mazorski & Albright (2007) 37 Fam LR 518, that a meaningful relationship or meaningful involvement is a qualitative adjective, and not a strictly a quantitative one.[40] In H v M [2006] FamCA 1071 Strickland J observed that:
“There is no issue here that a meaningful relationship with the mother and the father will benefit the child… although the dispute centres around the extent of the time that the child should spend with the father, that alone does not determine whether there will be a meaningful relationship or not. Other important factors include how the time is spent and the input of the parent during that time.”[41]
[40] Mazorski & Albright (2007) 37 Fam LR 518 at [26]
[41] at [101]
I consider that the maintenance of a “meaningful” relationship between the child and each parent is not dependant on the amount or the frequency of the time that he spends with each of them, but rather on the quality of the time, that is “how the time is spent and the input of the parent during that time.” In this case both parents are devoted and committed to meeting the child’s need and the child spends quality time with each parent and each parent’s input with the child is significant.
While I accept the evaluation of the single expert that the proposed relocation of the child to Region C has the potential to deleteriously impact on the quality of the relationship between the child and the father [42] because the opportunities for the father to be involved in the child’s day to day routines will be diminished, and the child’s time with the father will be curtailed, I am also mindful that if the mother is not permitted to relocate the child to Region C with her, and the child lives with the father, then this will diminish the opportunities for the mother to be involved in the child’s day to day routines and the child’s time with the mother will be curtailed and this would have the potential to deleteriously impact on the quality of the relationship between the child and the mother.
[42] Single Expert Report [72]
As noted previously, the mother has decided that she will move to Region C to live with her husband and F, regardless of the Court’s decision as to where the child will live.[43] The father has stated that he will not move to Region C. In this case it is not practicable for the child to continue to live in an equal time arrangement, due to the distance between the parental homes.
[43] Mother’s affidavit [257]
Fortunately, the parents have been able to reach agreement about the spend time arrangements for the child. They agree that if the child lives with the mother in Region C, then during school terms he will spend time with the father each alternate weekend, being three weekends in Region C from after school on Thursday until 4.00pm on Sunday, and two weekends in New South Wales from 8.00pm on Friday until 4.00pm on Sunday. Further, the child will spend not less than one half of each school holiday period with the father, and additional time with the father during the mid-year and Christmas school holiday periods. Additionally, the child will spend time with the father in New South Wales on the weekend immediately following the father’s birthday and on the Father’s Day weekend, provided that the child will not be required to travel on two consecutive weekends, unless the parents agree in writing.
The parents agree that if the child lives with the father in New South Wales, then he will spend time with the mother each alternate weekend during school terms, being three weekends in New South Wales from after school on Thursday until 4.00pm on Sunday, or alternatively for one block period of up to nine days nominated by the mother, and two weekends in Region C from 8.00pm on Friday until 2.00pm on Sunday. Further, the child will spend not less than one half of each school holiday period with the mother, and additional time with the mother during the mid-year and Christmas school holiday periods. Additionally, the child will spend time with the mother in Region C on the weekend immediately following the mother’s birthday and on the Mother’s Day weekend, provided that the child will not be required to travel on two consecutive weekends, unless the parents agree in writing.
The time that the child will spend with each parent, regardless of where the child lives, is sufficient in my view to promote his meaningful relationships with each parent, and the child in this case has the benefit of high-quality parenting inputs in both households.
I am satisfied that regardless of whether the child lives in Region C with the mother, in Region B with the father, he will continue to have the benefit of a meaningful relationship with both parents.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are no issues of risk for the child in either parents’ care. Both parents are loving, devoted, and protective of the child.
Additional Considerations
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is aware that the mother has been travelling between New South Wales and Region C, and that she does not have a house in New South Wales. When the child is with the mother and F in Region B they live in a mobile home at the paternal grandfather’s home. The child reported:
She goes and lives in Queensland with [Mr G], I have been up there to stay sometimes. It is good. I liked it.[44]
[44] Ibid [59]
The child reported that he gets on well with his stepfather and they are friends. The child thinks his little sister is “fun and cute”. He reported no worries or problems at his mother’s home.
The child had not really thought about going to live in Region C and thought it would be alright. He said he would miss the parent with whom he is not living a lot if there was a big distance between homes. The child responded that if he got to choose, he would spend a week with mum and a week with dad, which he thinks is the right amount. The single expert reported:
When asked, if you got to choose if you go to Queensland or stay down here, where would you want to be?” [X] replied, ‘Probably stay down here.” He said he did not know what he would do if his mother went to Queensland anyway.[45]
[45] Ibid [64]
Counsel for the mother explored the child’s views in cross-examination with the single expert. The single expert confirmed that she asked the child what he would do if the mother went to Region C anyway, and the child answered, “I don’t know”. The single expert said that she does not know whether the child was conscious that staying in Region B may mean being separated from the mother, and the single expert was conscious not to involve the child in the dispute or press him on that issue. Further, when she was asked about the father’s inappropriate discussions with the child, which have been referred to previously, the single expert said, and I accept her evidence, that the child is in middle childhood and he is likely to be very empathic and eager to please his parents, and anxious for their approval, and that he is likely to be influenced by exposure to the distress of one of his parents.
I have found that the child has been exposed to the father’s negative view of the proposed move to Region C, and to the father’s anger and sadness and consider it likely that the child does not want to upset the father by moving.
The single expert was clear to say that the child’s views, whether influenced or otherwise, ought not to be given priority in this case and that the decision about relocation must be made in the best interests of the child and is far too big a decision for the child at his age and stage of development.
When he spoke with the single expert, the child reported that his only worry or problem at his father’s house is:
When he has to work in the morning my nan has to come and wake me up very early and that is really all the problem.”. When he was asked what is early he answered “Six something. Dad works at [E Company].” [46]
[46] Single Expert Report [58]
I take the child’s views into account. I accept the evidence of the single expert that the child is not of sufficient age or maturity for his views to be determinative of whether he will be permitted to relocate with the mother to Region C, or whether he will live primarily with the father in New South Wales.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparents or other relative of the child)
I accept the evidence of the single expert that the child’s relationships with both parents are equally strong and important to him.
The father reported that he feels that the child has a closer bond with him. [47] I accept that, from the father’s perspective, the child is a “mini me” who shares similar personality traits and interests with the father. The single expert observed the child to be very comfortable and settled in the father’s care.
[47] Ibid [18]
I accept the mother’s evidence that the child is “still a bit of a mummy’s boy” and that she and the child “share a special bond”.[48] I consider it very likely that the child feels a slightly stronger emotional attachment with the mother due to the fact that the mother has been the child’s primary carer until recently, and because the mother has been more consistently available to provide day to day care for the child due to her more flexible arrangements. I am also of the view that the mother has demonstrated a greater capacity than the father to shield the child from the parental dispute and adult feelings. The father has conceded that he has placed the child under pressure by involving him in the adult dispute, whereas the mother has consciously shielded the child from the dispute.
[48] Single Expert Report [17]
To be clear, while not seeking to diminish the child’s meaningful relationship with the father, which is clearly a very important relationship for the child as already discussed, I do not accept that the child has a closer bond with the father than with the mother. Until August 2023 when the equal time arrangement was implemented by Court order, the mother was the child’s primary carer, including throughout the whole of his formative years. I accept the evidence of the single expert that the child has deep and connected relationships with both parents, and that this is likely testament to the parents’ shared ability to work collaboratively to meet the child’s needs to a high level. However, I am conscious of the possibility that separation from the mother, and from F, may cause the child greater distress than separation from the father, including because the child may feel that the mother has rejected him if she moves with F and without taking the child with her.
The parents agree that the child has a close and loving relationship with his maternal half-sister[49] and the single expert observed that the child clearly enjoys interacting with F. Under cross-examination, the single expert described the sibling relationship as another attachment relationship and commented that secure attachment relationships are most important for a child’s emotional development. I accept the evidence that the benefit of the child being able to live with his sibling is one factor to consider in the parenting arrangements for the child.
[49] Mother’s affidavit [219]-[237]; Single Expert report [40] [60]
I accept that the child enjoys close relationships with extended maternal and paternal family members in Region B and in Region W, including with his paternal grandparents, two paternal aunts, three paternal cousins, his maternal grandfather and a maternal aunt. I take those important relationships for the child into account. While the child’s relationships with extended family members are very important and one factor to consider, the Family Law Act does not place equal or greater importance on those relationships over and above the child’s relationships with each parent.
Considering the evidence, and in light of the spend time with arrangements which have been agreed between the parents, I consider that the child’s extended family relationships are likely to be well maintained regardless of whether the child lives in Region B or in Region C.
I consider that the child has a good relationship with the mother’s husband Mr G, and I take that into account.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
I am comfortably satisfied that each parent has taken every opportunity to spend time and communicate with the child, and to make decisions about the child.
I accept that each parent is fully engaged with the child, and that they each have a genuine desire to be involved in every aspect of the child’s life and to spend time and communicate with the child to the greatest extent possible.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The mother and Mr G together fulfil the mother’s obligation to maintain the child.
The father pays child support as assessed[50] and thereby fulfils his obligation to maintain the child.
[50] Father’s affidavit [184]
I am comfortably satisfied that each parent has fulfilled their obligation to maintain the child.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents; or any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living
Each parent’s proposal involves significant changes in the care arrangements for the child. I accept the evidence of each of the parents, and the single expert, that the child is likely to be highly distressed if he lives primarily with one parent and has limited time with the other due to distance.
The father raises his concern about the impact on the child of the significant changes in his circumstances if the mother is permitted to relocate the child to Region C. He points out that the child has lived in Region B for the whole of his life to date, and that he attends his local school, and has close family and community ties in Region B. The parents agree that the child will experience a move to Region C as a significant separation from the father, and the extended paternal family, and his community.
The mother’s proposal
The mother proposes that the child will live with her at Region C with the child’s stepfather, and the child’s sister F. The proposed environment at Region C is familiar to the child, because he has spent time there during school holidays periods and he has his own bedroom there.

In Babcock & Wardell [2018] FamCA 276, which was a case involving an application to relocate a child from Sydney to Perth, Deputy Chief Justice McClelland discussed the relevant authorities and summarised the approach to determining what order is in the best interest of a child when a parent is seeking to relocate the child’s residence. His Honour’s discussion includes the passages reproduced below:^[65]
[65] Babcock & Wardell [2018] FamCA 276 [126 – 129]
126.     In Sayer & Radcliffe and Anor,[27] the Full Court said:
A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider thecompeting proposalsof both parents: see Palmer (No 2) at [76]; Morgan at [80] – [81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
127.     However, the Court is not bound by those proposals in determining what is in the child’s best interests.^[28]
128.     In terms of approach, in Malcolm & Monroe and Anor[29] the Full Court said:
We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF(1999) 199 CLR 160, 179; and U v U[2002] HCA 36; (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
(emphasis added)
129.     In Re: TC and JC (Children: Relocation),[30] Mostyn J suggested that undertaking that task might be assisted by asking the following questions:
a)        Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?
b)        Is the application realistically founded on practical proposals both well researched and investigated?
c)        What would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?
d)        Is the other parent or person's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
e)        What would be the extent of the detriment to him and his future relationship with the child were the application granted?
f)        To what extent would that detriment be offset by the extension of the child's relationships with the applicant family and homeland?
The court does not assume that a parent must subordinate his or her wish to relocate to the wish of the other parent that he or she remain living in the same location. Nor does the court assume that one parent cannot or should not contemplate moving to be nearer to the relocating parent and the child.
I have already discussed the father’s reasons for not wanting to relocate to Region C. The father prioritises the benefits which he derives from his employment in Region B, his house, and the support he receives from extended paternal family. Understandably the father is reluctant to move away from the security and comforts that he enjoys in Region B of New South Wales. Overall, having regard to the evidence of the father and the evidence pertaining to the location of several other employers in southeastern Queensland, I am not satisfied that the father could not relocate his employment to Queensland, if he so chose.
The father’s reluctance to consider relocating helps to illuminate the difficult feelings which the mother experiences living apart from her husband, in circumstances where when she moves she will have stable accommodation, and she will be relieved of the burden of travelling regularly to facilitate the current equal time arrangement for the child. The mother will have the benefit of her husband’s financial and practical support, as well as flexible and stable employment and the capacity to provide for the day-to-day care of the child. I have no doubt that the mother genuinely believes that it is best for the child if he is able to relocate with her and his half-sibling, and the mother genuinely believes that the child will suffer greater distress if he is separated from her than if he moves with the mother and spends less time with the father.
The mother seeks permission of the court to relocate the child because she considers it to be in the best interests of the child that he lives with her. The mother recognises that the benefits to the child from living with her as opposed to with the father are subtle and nuanced and include the fact that the mother has been the child’s primary caregiver, until very recently, and that she has proven capacity to support the child’s relationship with the father and will continue to do so into the future. Further, the mother submits that she has greater capacity to provide for the child’s day-to-day needs, given the father’s work commitments. The mother says that she will make sure that the child can enjoy his Aboriginal culture in Queensland, and that she will continue to support the child’s connection to culture through the paternal family. Finally, the child will have more opportunity to continue his close relationship with his half-sibling F.
The father would prefer that the mother remains living in Region B so that the child can live with both parents in an equal time arrangement, and he opposes the child moving to Region C. The father acknowledges that the child shares a very close and loving relationship with both parents, and that there are no risk issues for the child in the household of either parent. The father acknowledges that the child will suffer a great loss whether he relocates with the mother or remains in Region B with the father.
The father seeks to restrain the relocation of the child to Region C and he submits that it is in the best interests of the child that he lives with the father, because a move to Region C will deleteriously impact on the quality of the child’s relationship with the father and with extended paternal family members. The father submits that there will be “cascading losses” for the child if he moves from the Region B area, and argues that his proposal mitigates the losses because it is least disruptive to the child’s existing lifestyle in Region B, including his relationships with the extended maternal and paternal family members, and his relationships with members of the local sports communities and his school community and peers. The father also relies upon what he asserts will be a loss in the child’s ability to nurture his interest in his Aboriginal culture, which he participates in with his paternal grandmother and paternal aunt and cousin.
I am required to consider and weigh up the advantages and disadvantages of the parties’ competing proposals. As noted already, the polarised position of the parents means that an equal time arrangement is not an option for the child in this case. The Court is presented with only two options for the child in this case:
(1)The mother’s proposal that the child lives with her in Region C and spends time with the father regularly; or
(2)The father’s proposal that the child lives with him in New South Wales and spends time with the mother regularly.
I accept the evidence of the single expert that both parents have the capacity to provide for the child’s emotional needs and to support him to adapt to his changed circumstances. Having regard to the evidence overall, for the reasons already discussed, I consider that the mother has demonstrated a greater capacity than the father to shield the child from the parental dispute and prioritise the child’s needs, and I consider that this indicates a greater level of awareness and sensitivity to the child’s needs on the part of the mother than on the part of the father.
While acknowledging the mother’s rationale for wishing to relocate to Region C, the single expert considered whether the benefits which would flow to the mother, outweigh the benefit to the child of having ready access to his father on a day-to-day basis. The single expert considered that an equal time arrangement would generally be of benefit to the child, given his close and connected relationships with both parents, but she said that the father would need to demonstrate that his work commitments will be shifted to ensure that he is personally available to care for the child most of the time through the week. I accept that evidence.
The single expert assessed that it is likely to be in the mother’s best interest to relocate to Region C because the move will provide her with the greatest amount of financial stability, housing stability, and practical support from her husband, and will be good for the maternal half-sibling. I accept that assessment.
In terms of the child’s best interests, if he moves to live with the mother then he will have improved stability in her household as there will be one household in Region C, and the mother will not be travelling back and forth with F. The mother is available to meet all the child’s day to day needs, because her flexible work arrangements give her capacity to prioritise those needs over work commitments, including tailoring her work hours to suit the requirements of the child. The child will be able to maintain his close and connected relationship with his half-sibling F. The father acknowledges that the child has a close and loving relationship with his sister and describes them as cute together. The child will enjoy the support he receives from his relationship with Mr G, and with Mr G’s extended family.
The single expert considered the impact of a relocation on the child’s ability to spend time with his father, and I accept her evidence that the distance between the parental homes will limit the opportunities for the non-resident parent to be involved in the child’s day to day life. There will be a diminution in the child’s time with whichever parent he does not live, and this has the potential to deleteriously impact the child’s relationship with that parent.
If the mother is not permitted to relocate the child with her to Region C, and the child lives primarily with the father in New South Wales, then the potential impacts on the child’s relationship with the mother are similar, but not identical, to the potential impacts on the child’s relationship with the father if the mother is permitted to relocate with the child. In my view there are subtle and nuanced differences which favour an order that the child live with the mother, because I am satisfied that the likely deleterious impacts on the child’s relationship with the mother, and on the child generally, will be greater if he moves to live primarily with the father, and is separated from the mother. In the primary care of the father the child would have to adapt to the following changed circumstances:
(a)A parenting arrangement which is significantly different from the longstanding arrangement he is used to. Until recently when the equal time arrangement was implemented by Court order, the child lived predominantly with the mother and the mother has been the child’s primary caregiver for most of his life to date.
(b)The child will be separated from the mother, and he will spend considerably less time with her. I consider that the mother has demonstrated her greater capacity to respond to the child’s needs, including by seeking to shield him from adult issues and by arranging her work commitments around the child’s school hours, and being able to care for child when he is sick.
(c)The child will be separated from his half-sibling F, and he will spend considerably less time with her. The child will no longer have the benefit of growing up in the same household as F, even if only for one half of his time. This will likely lead to a diminution in the child’s close relationship with his sibling due to the loss of opportunity to grow up in the same household and share experiences on a day-to-day basis with her. I consider that the sibling relationship is likely to be the longest relationship a person will have in their life, and that such a relationship is important and valuable to the child.
(d)During her oral evidence, the single expert agreed that the child may feel rejected by the mother when the mother moves to Region C and leaves the child behind in Region B. There is less risk that the child will experience feelings of rejection if the father remains in place and the child moves to Region C with the mother, and the child will have regular time and communication with the father. I consider that the risk that the child will feel rejected by the mother if he does not continue to live in her household is significant, and that such a sense of rejection could damage the child’s relationship with the mother and the child’s healthy development.
(e)The father works fulltime. While the father can rely upon the assistance of his parents, who are retired, to care for the child when he is unable to do so, the care arrangements which the father proposes would involve a significant departure from the child’s established routines. For example, the child will not always be delivered to and from school by a parent, and the father will very likely need to delegate the child’s care to the paternal grandmother if the child is sick and cannot attend school. I am mindful of the evidence of the single expert, to the effect that there are subtle benefits for the child in being cared for by a parent, rather than having his care delegated to others, even loving and devoted grandparents. Further, every second week during school terms the father proposes that the child will not be cared for by a parent before and after school. The child will be delivered to before school care and be collected from after school care. The child will be required to leave home around 6.am on school days in the long week and he will remain at school, in after-hours care until the father collects him around 5.00pm and he will not return home before 5.30pm.
I am cognisant that, if the mother is permitted to relocate to Region C, then the nature and quality of the father’s time with the child will be markedly different, and the child will experience a significant sense of loss if the father is absent from his day-to-day life. Historically it seems that, due to his work commitments, the father has not been involved in school activities which occur in Region B. While the father has been able to rely upon the mother and the paternal grandmother to assist him, the mother has not been able to rely on the father to assist her when she has required help. Whereas the mother can tailor her work hours around the child’s needs, the father has much less flexibility, and the father has no plan to alter his current roster if the child lives with him.
While the child will not spend time with the father as regularly, or for the same duration, as currently he does, the parents agree that he will spend time with the father in a regular pattern, which includes overnight time on no less than five weekends during each school term, and significant block periods during school holidays. The child will continue to enjoy regular opportunities to further his relationships with extended paternal family members, including during the school holidays. The parents agree that the child will communicate with the non-resident parent regularly by electronic means.
The child is accustomed to communicating with the father by electronic means, and that communication can continue, regardless of where the child lives. I share the confidence expressed by the Family Consultant that the mother will continue to encourage and facilitate a meaningful relationship for the child with the father.
The child was 9 years old at the date of the trial. He has a very good relationship with the father. The mother is willing and capable of promoting and facilitating the child’s meaningful relationship with the father. The single expert expressed her confidence, which I share, that the mother will assist the child during the transition. Overall, I am satisfied that the child’s meaningful relationship with the father can be maintained from a distance.
On balance, and for the reasons provided herein, I consider that the loss of opportunity to live in a household with the mother and F will be experienced as a greater loss by the child than he will experience moving to Region C with the mother and being deprived of opportunity for the father to be involved in his day-to-day activities. I consider that the child may be more distressed by separation from the mother than from the father, for the reasons discussed, and that there is a benefit to the child of remaining with the parent who is most available to meet his day to day needs, and who has greater capacity to assist the child to adapt to his changed circumstances.
I am satisfied that it is in the best interests of the child that the mother is permitted to relocate the child’s residence to Region C in Queensland.
The spend time arrangements for the child with the father
As the mother will be permitted to relocate the child to live with her in Region C, Queensland, I am required to determine the spend time with arrangements for the child with the father in New South Wales.
With the assistance of their legal representatives, and to their credit, the parents have largely agreed on the spend time arrangements for the child and the court will make those final parenting orders by consent.
There are a few discrete issues which remained the subject of dispute,[66] and I will now determine each of those discrete issues in turn.
[66] Exhibit M6 received under cover of joint letter to chambers dated 26 March 2024.
Time with the father in Region C during school terms.
The parents agree that the child will spend time with the father in Region C from the conclusion of school or 3pm Thursday until 4.00pm on Sunday in Weeks 1, 5 and 9.
The father proposes that there be an additional order that specifies that if the school term is less than 9 weeks duration, then the time will occur on the last weekend of school term.
Counsel for the mother submitted that the child will spend time with the father during Week 9, if the school term is of 10 or 11 weeks duration, but if the school terms is less than 9 weeks duration then the child’s time with the father will occur in accordance with the arrangements which each party proposes for the school holidays.
Counsel for the father submitted that if there is no Week 9 then an additional period of weekend time in Region C should occur earlier than Week 9, and in the second iteration of Exhibit M6 his proposal is as set out above.
I can see no good reason why the child could not spend time with the father in Region C on the last weekend of the school term, if the term runs for less than 9 weeks. The earlier spend time with period will be in Week 7 in Region B. The child would not be required to travel to Region B on consecutive weekends because the Week 9 time is scheduled to occur in Region C and if the time occurred during Week 8 instead then the Week 8 time would have to occur in Region C, particularly noting that the parents have agreed to an order that the child will not travel to Region B on consecutive weekends unless otherwise agreed in writing between the parents.
In my view, the more time that the child can spend with the father in Region C the happier the child is likely to be, and there is no obvious detriment to the child on the father’s proposal.
An order will be made in terms of the father’s proposal set out above.
Whether the child’s time with the father during school holiday periods in even numbered years will commence on 28 December as the mother proposes, or on 27 December as the father proposes.

The parents have agreed that the child will spend time with the father in Region B during Term 4 school holiday periods for a period of 4 consecutive weeks, with such time to be agreed between the parents, and failing agreement, for the first 4 weeks in odd numbered years commencing on the first day after the conclusion of the last day of the school term, and in even numbered years commencing on either the 27th or the 28th of December for 4 weeks.
There was no evidence from either parent addressing this issue. Nonetheless the Court is invited to determine the issue, and in doing so I consider that, by virtue of the parents’ agreement, the child will be in the care of the mother for the immediate Christmas period[67] in even numbered years and with the father for the immediate Christmas period in odd numbered years.
[67] Christmas Eve, Christmas Day and Boxing Day
If the child commences spending a block period of 4 weeks with the father on 27 December then he will be due to return to the mother on 26 January which is a public holiday. If the child commences to spend 4 weeks with the father travels on 28 December then he will return to the mother on 27 January. I take into account that it may be preferable to avoid travel for the child on a public holiday on that day. I also take into account that in even numbered years the child will be spending the Christmas period with the mother, and that the child will be travelling from Region C to Region B to spend time with the father, and the mother is required to personally facilitate the delivery of the child to Region C Airport and travel with him, or remain with him until he boards the flight, and in those circumstances I consider that it is appropriate to accommodate the mother’s preference, given that it will not impact at all on the amount of time that the child will spend with the father overall
The court will order that the child’s time with the father in even numbered years will commence on 28 December.
Special occasions for the child with the father
The parents have been unable to agree about what order should be made if that the child does not spend time with the father on certain special occasions, as a result of the parents seeking an order that the child will not travel to Region B on consecutive weekends, unless they otherwise agreed in writing.
I have considered the proposal of both parents. I note that both specified special occasions will most likely occur in Term 3, and I do not consider that it is appropriate to avoid a situation where the child spends time with either parent on consecutive weekends, as the child has the right to enjoy time on weekends with both parents.
I prefer the proposal of the mother as it is most likely to avoid a situation where the child is required to spend time with the father on two consecutive weekends, and miss out on his weekend time with the mother, while allowing the child to spend time with the father proximate to special occasions such as Father’s Day and the Father’s birthday.
The Court is satisfied that the Orders at the forefront of these Reasons are in the best interests of the child.

I certify that the preceding two hundred and twenty-six (226) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty.
Associate:
Dated: 4 December 2024

File number(s):	NCC 3530 of 2022
Judgment of:	JUDGE CARTY
Date of judgment:	4 December 2024
Catchwords:	FAMILY LAW – PARENTING – Relocation – Where the applicant mother seeks an order which permits her to relocate the child from Region B in New South Wales to Region C in Queensland – Where the respondent father opposes relocation of the child on the basis that it will adversely impact the child’s relationships with the father and extended paternal and extended maternal family members in New South Wales – Where the father seeks an order that the child live with each parent in an equal time arrangement – Where the mother intends to relocate to Queensland with or without the child to live with her husband– Where the mother’s wellbeing is most likely to be enhanced by the financial and practical support she will gain by living with her husband in Region C – Where the child has a meaningful relationship with both parents – Where the child has an important relationship with his maternal half-sibling – Where the child’s relationship with the mother might be diminished from feelings of rejection if the mother relocates without him and his healthy development may be impacted – Where the mother’s parenting capacity will be enriched by moving to Region C and the child will benefit – Where the child will continue to have the benefit of a meaningful relationship with the father if the mother is permitted to relocate the child – Relocation permitted – Spend time with arrangements – Discrete issues
Legislation:	Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC, Pt VII
Cases cited:	AMS v AIF (1999) 24 Fam LR 756 Babcock & Wardell [2018] FamCA 276 Bolitho & Cohen (2005) 33 Fam LR 471 H v M [2006] FamCA 1071 Mazorski & Albright (2007) 37 Fam LR 518 MRR & GR [2010] HCA 4 Taylor v Barker (2007) 37 Fam LR 461 U v U [2002] HCA 36; (2002) 211 CLR 238
Division:	Division 2 Family Law
Number of paragraphs:	226
Date of last submission/s:	26 March 2024
Date of hearing:	11, 12 and 13 March 2024
Place:	Newcastle
Counsel for the Applicant:	Mr Weightman
Solicitor for the Applicant:	Seton Family Lawyers
Counsel for the Respondent:	Mr Seric
Solicitor for the Respondent:	Nolan Lawyers

NCC 3530 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CUNNINGHAM Applicant
AND:	MR FOSTER Respondent

ORDER MADE BY:	JUDGE CARTY
DATE OF ORDER:	4 DECEMBER 2024